Banks and Loffler

[2016] FamCA 968

FAMILY COURT OF AUSTRALIA

BANKS & LOFFLER [2016] FamCA 968

FAMILY LAW – CHILDREN – interim orders – where the father seeks orders for substantial and significant time with the child – where the mother opposes the father’s application – where there are allegations of sexual abuse – where the Court considered the evidence relating to allegations of abuse should be tested through cross examination – where consideration is given to the law as it relates to findings of sexual abuse on an interim basis – where the Court does not consider the evidence as it presently stands to support a finding that the father present a risk to the child – where there is a family report – where orders are made for the child to live with the mother and spend supervised time with the father during the period of the adjournment.

FAMILY LAW – PRACTICE AND PROCEDURE – listing – where the matter is listed for trial – where trial directions are made.

Family Law Act 1975 (Cth) s 60CC

M v M (1988) 166 CLR 69
Vasser & Taylor-Black (2007) 37 Fam LR 256

APPLICANT: Mr Banks

RESPONDENT: Ms Loffler

INDEPENDENT CHILDREN’S LAWYER: Hume Taylor and Co

FILE NUMBER: ADC 2014 of 2014

DATE DELIVERED: 15 November 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 4 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: D'Angelo Kavanagh

COUNSEL FOR THE RESPONDENT: Mr Lindsay

SOLICITOR FOR THE RESPONDENT: SE Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hume Taylor and Co

Orders

Until further order:-

1. That B born … 2011 (“the child”) live with the mother.

2. That the child shall spend time with the father each Saturday between the hours of 10 am and 4 pm PROVIDED that his time with the said child shall be supervised by the paternal grandmother Ms Wills, but if she is not available THEN either Mr F or Ms G.

3. That handover is to take place at the Suburb D Children’s Contact Centre and any handovers that do not take place at the said centre shall take place inside the Suburb H Police Station.

4. That the matter be listed for final hearing before Justice Berman at 10 am on 22 May 2017 (6 – 7 days allowed).

5. That the matter be listed for mention before Justice Berman at 9.15 am on 27 April 2017.

6. That by 4 pm on 20 January 2017 the applicant file and serve upon all other parties:-

   (a)An amended application setting out with precision the orders that he seeks;

   (b)The affidavits of evidence in chief of all witnesses including the applicant relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

7. That the applicant pay all setting down and trial fees by 4pm on 20 January 2017.

8. That by 4 pm on 31 March 2017 the respondent file and serve upon all other parties:-

   (a)An amended response setting out with precision the orders that she seeks;

   (b)The affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

9. That by 4 pm on 14 April 2017 the applicant file and serve any reply to that of the affidavit of the respondent.

10. That by 4 pm on 14 April 2017 the Independent Children’s Lawyer file and serve upon all other parties any affidavit material relied upon.

11. That prior to the commencement of the trial the parties determine whether there are to be any rulings required arising out of objections to evidence and any such objections be referred to in the parties Outline of Case.

12. Liberty to all parties and the Independent Children’s Lawyer to relist the matter on short notice as to trial directions.

13. That the practitioners for the parties file and serve electronically to … by 4 pm on 17 May 2017 the following:-

    (a)       A concise set of orders to be sought if different from those already filed;

    (b)A list of the applications and affidavits to be read out and if not the whole affidavit the relevant paragraphs relied upon;

    (c)       A list of objections to evidence upon which rulings are required; and

    (d)       A bullet point summary of argument in relation to issues in dispute.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Banks & Loffler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2014  of 2014

Mr Banks

Applicant

And

Ms Loffler

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Initiating Application filed 6 June 2014, Mr Banks (“the father”) seeks orders for significant and substantial time with B born in 2011 (“the child”).

2. Ms Loffler (“the mother”) is strongly opposed to the child spending any time with the father, but if it is to occur then only with the most stringent of conditions is to apply, in particular supervision.

3. The current arrangements reflect the order made 24 March 2016 such that the child spends time with the father each Saturday between the hours of 10 am and 4 pm.

4. On 1 July 2016 all applications for final orders were listed for hearing as a primary listed matter on 4 October 2016.

5. Order 9 of the trial direction orders provided that pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”), the parties and the child were to attend upon a family consultant for the purposes of the preparation of a family report to be completed on 5 August 2016.

6. It came to the attention of the Court that without leave the mother through her solicitors e-filed an affidavit of Ms I (“Ms I”) on 26 July 2016 and caused it to be forwarded directly to the family consultant.

7. Ms I is the half sibling of the father and alleges that the father had sexually assaulted her between the age of about four and 16 years.

8. The status of Ms I’s affidavit came before me on 28 July 2016 and upon the application of the father I ordered that it be uplifted and returned to the respondent’s solicitors.  It was further ordered that if it was intended to rely upon an affidavit of Ms I, then any application in a case seeking leave to do so should be filed and served by 4 pm on 2 August 2016.  On 4 August 2016 the mother’s solicitors were released from their obligation to further represent the mother and she thereafter appeared as a self-represented litigant.

9. On 16 September 2016 leave was given to the mother to rely upon an affidavit of Ms I executed by her on 15 September 2016.  It is not controversial that the affidavit was a more expanded version of her earlier uplifted affidavit and contained considerable detail as to the circumstances in which she alleges that the father subjected her to sexual abuse and assault over her childhood years.

10. Consequent upon leave being given for the affidavit to be filed, the father applied to vacate the trial listing on 4 October 2016 on the basis that the matters raised in Ms I’s affidavit needed to be explored and further investigated.  The father’s counsel submitted that if given an opportunity to do so, documents may well be obtained which may cast doubt on either the veracity of the allegations being made by Ms I against him, or at the very least may impact upon the weight that the Court would give to her evidence.

11. In the circumstances as presented I acceded to the father’s application to vacate the trial listing.

12. Consequent upon Ms I’s affidavit, the mother filed an application in a case on 29 September 2016 seeking to suspend the father’s time with the child, or in the alternative that his time be subject to supervision.

13. It was also conceded by the mother that notwithstanding there had not been a stay or a suspension of the order providing for the child to spend time with the father, the mother had not complied with the order on the basis that she considered that the child was at significant risk in the unsupervised care of the father.

14. Whilst not the position of the father, it may be that the mother’s refusal to comply with the order is a position adopted by her during the currency of the current interim proceedings.

15. Whilst the affidavit of Ms I assumed significance both in terms of its importance to the mother’s case and as being the basis for the trial to be vacated, the mother also relies upon alleged disclosures of abuse made by her daughter C born in 2002 (“C”).

16. The summary of the mother’s position is that when the allegations of sexual abuse in respect of C, Ms I and the child are considered together, the overwhelming conclusion can be drawn that the father presents an unacceptable risk to the child.

17. I considered that Ms I’s evidence should be tested and an interim hearing was listed on 28 October 2016 for her to give evidence and be cross examined by counsel for the father and the Independent Children’s Lawyer (“ICL”).

18. Submissions were heard on 4 November 2016 and judgment was reserved.

BACKGROUND

1. The parties commenced cohabitation in about 2010 and separated in March 2014.

2. Following separation the father did not spend any time with the child and he considered that it would only be by way of Court order that the child would spend any time with him.

3. The Court record reflects the extent of the mother’s resistance to orders that initially enabled a resumption of the relationship between the child and the father and then to provide regular interaction.

4. The father asserts that prior to separation he had a loving, warm and affectionate relationship with the child and from time to time had the child’s care in the absence of the mother.

5. For her part, the mother asserts that the father always presented as a risk to the child, that she was suspicious of his conduct and considered that the child was at risk.

6. In May 2014 the mother was made aware that C had made disclosures at school alleging that the father had sexually assaulted her.

7. C was interviewed and made various statements to the police.  On 6 July 2014 the father was charged with persistent sexual abuse of a child but following further investigation the matter did not proceed and on 17 July 2015 a nolle prosequi was entered.

8. Whilst there had been some indication of the matters raised by C, the mother says that the child had not wanted to give her any detail and she had not seen any statements or declarations that had been prepared by C which would have provided particulars of the alleged offending.

9. Initially the father’s application seeking to spend time with the child on a supervised basis was refused whilst the criminal charges involving C were ongoing.

10. Dawe J dismissed the father’s application on 24 March 2015.  It had been about one year since he had spent any time with the child.

11. As a result of the nolle prosequi being entered, the father sought orders in respect of the child.  He filed an application in a case on 17 March 2015 seeking certain documents from the Court and by further application on 3 August 2015 sought orders for unsupervised time with the child on a gradually increasing basis.

12. On 27 August 2015 time was reinstated, initially at a children’s contact service and was then to be the subject of a family assessment report.

13. The allegations in respect of the child C were considered by the Court and in his submissions, counsel for the mother highlighted the following at paragraph 16 of my earlier judgment:-

    It is unhelpful and it is particularly so in circumstances where this is not necessarily an issue of a party who seeks to oppose orders sought by the other party.  This is against the backdrop of a case where, if the mother is to be ultimately believed and accepted, the father has engaged in serious sexual assault and misconduct with the child [C], notwithstanding that those proceedings have been dealt with by the entering of a nolle prosequi.  The inadequacy of the information before the court makes it difficult to determine a proper way forward.  That is an invidious position for the court to be in.  But the position that I am faced with is that the matter needs to be resolved on an interim basis.

14. Whilst not ignoring the complexity of the factual matrix of this matter, the extent to which the current order that provides for the child to spend unsupervised time with the father should be curtailed is dependent upon the weight to be given to the evidence of Ms I both by her affidavit and her oral evidence, but also the further material now provided and tendered by consent in respect of the investigation of the disclosures made by C.

15. Irrespective of the outcome of the interim proceedings, the parties and the ICL agree that there is no impediment to the matter being listed for final hearing.

16. The proceedings are to be listed for final hearing on 22 May 2017.  It is understood by the parties that trial direction orders will be made.

PROPOSALS OF THE PARTIES

1. The mother seeks that the orders providing for the child to spend time with the father be suspended, or in the alternative, that the time should be supervised by an appropriate supervisor.

2. In anticipation of the possibility of supervision being imposed upon the father’s time, affidavits were filed on behalf of Ms Wills (“the paternal grandmother”), Mr F and Ms G.

3. The mother confirms that there had been correspondence passing between the solicitors for the parties canvassing potential supervisors if so required.  The mother rejects all of the supervisors proposed by the father, in particular the paternal grandmother who she says is “subject to very serious allegations raised by Ms I in her said affidavit”.

4. Whilst not persuaded by the mother’s application to suspend the father’s time with the child, the ICL adopts a cautious approach and considers that the child can maintain a meaningful relationship with the father notwithstanding that supervision is required.  The ICL does not consider that the paternal grandmother or any of the other supervisors provided by the father are unsuitable.  There is no support for the mother’s proposed supervisors.

5. The father does not consider that supervision is necessary and seeks there be no interference with the continuation of the current order noting that up to this point the mother is unwilling to comply.

6. Whilst no objection was taken to the mother’s affidavit filed 27 September 2016, a regrettable practice has developed for solicitors to annex to affidavit material correspondence passing between the solicitors when there is no purpose in doing so.

7. The nature of the correspondence particularly on the topic of supervision, sets out the various proposals made by each of the parties in an attempt to reach consensus.

8. Subject to the exceptions, the correspondence referred to would be inadmissible pursuant to s 131 of the Evidence Act 1995 (Cth).

TREATMENT OF THE EVIDENCE OF MS I AND C

1. The mother submits that when considered either separately or together, the clear effect of the evidence of Ms I and C is that the father presents as an unacceptable risk to the child.  Whilst the evidence of Ms I was comprehensively tested, because the father was not challenged under cross examination or other evidence presented in support of the matters that counsel for the father sought to undermine, counsel for the mother urged caution if I was minded to the submission that Ms I’s evidence should be dismissed as being totally unreliable.

2. In M v M (1988) 166 CLR 69 the Full Court was required to consider the manner in which an allegation of sexual abuse should be treated. Their Honours considered that treating an allegation of sexual abuse as the paramount issue was an error.

3. In Vasser & Taylor-Black (2007) 37 Fam LR 256 the Full Court considered that the High Court decision in M v M (supra) had become the “touch-stone” of  the principles to be applied in cases of asserted unacceptable risk of any kind.  Their Honours quoted, with approval, the following passages from M v M (supra), found at pages 75-78:-

   In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to “regard the welfare of the child as the paramount consideration” (s 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has determined, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.  Proceedings for custody and access are not disputes inter partes in the ordinary sense of that expression; Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352 at 364-5. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima face in a child’s interests to maintain the filial relationship with both parents: compare J v Lieschke (1987) 162 CLR 447; 69 ALR 647; 11 Fam LR 417 at 450, 458, 462, 463-4.

   Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.  The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334 at 362. There Dixon J said:-

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

4. Further, the Court said:-

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of risk may be less if the order in contemplation is supervised access.  Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.  But that is not the issue in this case.

1. It therefore follows that the following propositions can be made:-

   (a)I am not required to resolve whether on the balance of probabilities a parent has sexually abused a child;

   (b)I am required to make parenting orders that promote and facilitate the best interests of the child and in doing so am entitled to place substantial weight on the importance of maintaining a meaningful relationship;

   (c)The resolution of any allegation in respect to sexual abuse is always subservient to a determination of what is in the child’s best interests having regard to taking into account the primary and additional considerations in respect of s 60CC but giving proper recognition to the interplay between s 60CC(2) and s 60CC(2A);

   (c)Unless satisfied on the balance of probabilities, the Court should be reluctant to make a finding as to the veracity of any allegation made;

   (d)The Court should “assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare”. M & M (supra).  It is therefore not the end of the matter if a Court is not able to make a finding that sexual abuse has occurred on the balance of probabilities;

   (e)The risk of harm to a child is central to a determination of the parental arrangements.  A Court is required to assess the magnitude or weight to be given to any risk and then to balance it against other counter-veiling factors which together must be considered to determine what is in the child’s best interests.  Supervision is not in all cases a panacea but rather must be added to the mix of considerations in determining the appropriate balance between the benefit to a child of continuing a meaningful relationship and whether orders made would expose a child to an unacceptable risk.

Ms I

1. Her primary evidence is contained in her affidavit filed 4 October 2016.  She sets out her recollection of her family history, noting that the father in the proceedings is her half-brother and was born in 1976.  Ms I is four years younger than the father.

2. Paragraph 5 of her affidavit asserts that:

   [The father] did not live with us until 1988, but I do not think that it was on a full-time basis.  Prior to that time, he resided with the maternal grandmother [Ms J] in [K Town], Queensland and visited on occasions.  I recall that from 1988 until around 1992 [the father] was present in our home more often than when he visited prior to that time.

3. The issue of the father’s inclusion in the family was a clear recollection of Ms I.  When cross examined the evidence of Ms I was that she was “crystal clear” as to the living arrangements both before and after 1988.  There was further reference in paragraph 29 of her affidavit where she says:-

   Between 1988 and 1994 [the father] lived in our household, although he regularly left on occasions to return to the maternal grandmother’s house in [K Town].  He moved backwards and forwards and I recall him running away on occasions and leaving a note.  During this time, there were multiple occasions when I was sexually assaulted by [the father] and I cannot say on how many occasions these assaults occurred.  I have attempted over the years to try to push these memories from my mind.  I say further, that a number of events have tendered to blur.  Fragmented memories have come back to me and I have attempted to disassociate myself from the same.  However, I have absolute clarity of recall in regard to the specific incidents deposed to herein.

4. The allegation of sexual assault by the father on Ms I commenced when she was about three or four years of age, namely, from 1984 to when she turned 16 in 1996.

5. Under cross examination, Ms I conceded that it may have been the case that the father was in fact a resident of the household and part of the family until 1988 whereupon as a result of significant conflict with his father he left the home.  She conceded that the opportunity for the father to have sexually assaulted her post 1988 was significantly restricted and therefore opportunistic namely, when she attended at the grandmother’s home or on the odd occasion that the father may have returned to her home.

6. The best that Ms I was able to allege was that after 1988 there were two or three occasions of sexual assault in 1992 but nothing in 1988, 1989, 1990 or 1991.  In addition, Ms I alleges that whilst her mother was not complicit in the father’s sexual assault of her, the mother was nonetheless aware of what was happening and either was dismissive of the allegation made or did not care.

7. Ms I clearly has a dysfunctional relationship with her mother and there is a deep-seated and unresolved animosity within the family as to the parenting role undertaken by the paternal grandmother and the paternal grandfather.  Ms I was complimentary of her father’s parental involvement and disparaging of her mother.

8. The relationship between Ms I and her mother and in particular arising from the allegation that the paternal grandmother ignored the father’s continued sexual assault of her was such that she terminated her relationship with her mother.  It was put to her that her recollection was misplaced and that she spent time with her mother on the occasion of two weddings and was also engaged in email communication.

9. Ms I was unclear as to the various houses that she lived in as a child from time to time which was potentially critical in that Ms I describes the alleged sexual assaults as having occurred at particular premises.

10. Whilst not definitive and possibly capable of further corroboration, there appears at least to be some doubt as to whether a particular described sexual assault occurred in a particular home as alleged by her.  That does not mean that the assault did not occur, but to the extent that the context of the residence, floor plan and layout may be an important consideration, some uncertainty necessarily arises.

11. Given that the evidence of Ms I was central to the mother’s opposition to the father continuing to spend time with the child and was the catalyst for the trial to be vacated, it was appropriate that the Court give Ms I’s evidence all possible consideration.

12. Having heard the evidence of Ms I, noting that the father is yet to be cross examined and that further evidence may well be obtained which would provide some support for the allegation and assertion of sexual abuse,  I am nonetheless better placed to assess the magnitude of that risk, if any, that arises from her evidence.

13. I do not consider that the evidence of Ms I as it presently stands would support a finding that the father presents a risk to the child that should subsume all other considerations such that the child should spend no time with the father.

14. Taken alone, I am not convinced that her evidence would support an outcome that would see the father’s time with the child being permissible only in the circumstances of supervision.

C

1. The father faced the serious criminal charge of persistent sexual exploitation of C.  The father has always denied the child’s allegations.  The criminal proceedings commenced in 2015 and were brought to an end when the Director of Public Prosecutions entered a nolle prosequi.

2. In support of his position that the allegations made by the child to the police were unreliable, the father annexes to his affidavit filed 22 July 2015 the following documents:-

   (a)Proofing Notes of Officer L

   (b)Proofing Notes of Ms M

   (c)Proofing Notes of Ms N

   (d)Ruling of the trial Judge

3. The inference that the father would wish to be drawn from the proofing notes and the judgment was that the allegations made against the father were unreliable, that the mother had exerted pressure on the child to give evidence and that the reason the child was reluctant to speak to the police was because the allegations were concocted but she was burdened by the pressure being exerted upon her by her mother and other members of her family.

4. In making the orders for the child to spend time with the father, I considered that without more information the allegations of the mother alleging that the father had sexually assaulted C when considered against the backdrop of the proofing notes was such that it should not support a finding that the father presented as an unacceptable risk to the child, nor that supervision was required.

5. During the course of submissions the following documents were tendered by consent:-

   (a)Exhibit 6 – record of interview of C;

   (b)Exhibit 7 – statements of Ms O and Ms P;

   (c)Exhibit 8 – statement and particulars of offence;

   (d)Exhibit 9 – statement of Ms Loffler

   (e)Exhibit 10 – proofing notes dated 10 July 2015.

6. The particulars of the offence is that between 12 February 2010 and 4 May 2014 at Suburb Q, Suburb R and other places, the father committed the offence of sexual exploitation including the following:-

   (a)Inserting his penis in C’s vagina on multiple occasions;

   (b)Inserting his fingers in C’s vagina on multiple occasions;

   (c)Licking C’s vagina on multiple occasions;

   (d)Touching C’s vagina using an object;

   (e)Touching C’s chest area.

7. The detail of the offending is that the father was in a relationship with C’s mother during the relevant period and at night would go to C’s room for the purpose of reading to her.  During that act he would perform sexual acts whilst the child continued to read.  The acts included inserting his penis into her vagina, inserting his fingers into her vagina, touching her chest area, licking her vagina and rubbing her vagina with a sex toy.

8. The father performed these acts at three different locations over the relevant period.

9. In the course of submissions counsel for the father urged the Court to consider carefully the tendered material but in particular to have regard to a detailed record of interview with C with specific reference to the following questions namely 159, 165, 181, 257, 262, 273, 283, 322, 353 and 366 and the further matters at page 11 and 12 of the statements.

10. Whilst the evidence presented on behalf of the mother has not been tested, the further material provided assists me in better understanding the nature of the alleged offending.

11. Having considered the further information, it is not possible to dismiss the allegations made against the father at an interim hearing.

FAMILY REPORT

1. The family report was prepared in anticipation of the final hearing. 

2. The family consultant considered the allegations made by C following the parties separation and whilst not interviewing the child, considered some possible reasons for the child’s refusal to engage in the proofing and continuation of the criminal proceedings.  She opined that the abuse may not have happened or may not have happened in the way that she had described, that she was unwilling to give detailed information because she was embarrassed about what had happened to her, or that “the intensity of emotion that the mother demonstrated in respect of the father and the alleged abuse may have been overwhelming for the child”.

3. The family consultant accurately recorded the vitriol and mistrust expressed by each of the parties to the other.

4. The mother is implacably opposed to the father spending time with the child and considers that he is a “child rapist”. She reported to the family consultant that:-

   There is an extremely high risk of him sexually assaulting [the child] because of his past history.  He spent several years raping my daughter.  Since visits have begun there are very concerning behaviours and [the child] is beginning to show symptoms of abuse already.  I am very concerned for his safety.

5. Notwithstanding the anger that clearly emanates from the conflict, the observations of the family consultant were that the child had a warm and affectionate relationship with both the father and the paternal grandmother.  When given an opportunity, the child spontaneously commented that when he visits on Saturdays “lots of fun stuff happens” and there was nothing in the child’s presentation that displayed sexualised behaviour.

6. Similarly, there was nothing in the physical contact that the child initiated under observation with either the father or the paternal grandmother which was of concern to the family consultant.

7. Following the observed interaction the child indicated that he loved his father and that if given the opportunity he would like to spend more extensive time with the father than currently provided.

8. The child also accurately reported his mother’s position in relation to extended or further time with his father replying that “she would say no to do it” and when asked why the child said “because my mum says dad is an evil man but I don’t think dad is an evil man”.

9. The family consultant considered that the child would benefit from a relationship with the father notwithstanding that the extended period of absence had been potentially damaging to the child.

10. Obviously the extent to which any time was spent with the father was dependent upon the Court finding that he does not pose a risk of sexual abuse to the child.

FURTHER CONSIDERATIONS

1. The evidence of the family consultant as set out in her report suggests strongly that there is significant benefit to the child in maintaining a relationship with his father.  He loves his father and was able to speak in a positive way of the time that he spent with him and the paternal grandmother, but also seeking more time notwithstanding that he knew his mother considered the father to be an “evil man”.

2. The observations of the family consultant are not to be taken in isolation.  The Court is assisted by an observational report prepared by Ms S during a period when the father recommenced his time with the child under supervision.  The report was favourable and supportive of the observations of the family consultant.

3. It is accepted that the mother is opposed to the father having any relationship with the child and does not consider that he has anything to offer.  She considers that he is a “child rapist” and a “paedophile”.

4. Taking into account the circumstances, I do not consider that the evidence of Ms I or the evidence in respect of the allegations of sexual assault against C are such that the father’s time with the child should be suspended.  To do so may well impact adversely on the child now that a relationship has been established.  I do not consider that the father presents a risk to the child which would speak against there being any promotion of a relationship between the father and the child.

5. The further information in respect of C has not been tested in the way that Ms I’s evidence was. 

6. There is wisdom in the submissions on behalf of the ICL that the father’s time should continue but under supervision which is unlikely to significantly impact upon the quality of the interaction pending the opportunity that a trial will give to the parties to explore and test the evidence raised in respect of C and by Ms I.

SUPERVISION

1. Each of the parties have filed significant affidavit material in support of the proposed supervisers.

2. The mother remains intractably opposed to the paternal grandmother undertaking supervision.

3. The paternal grandmother impressed the family consultant with her balance and whilst the basis of the mother’s objection is her alleged role in ignoring or at worst facilitating the father’s sexual abuse of Ms I, I consider that the evidence of Ms I in respect of any involvement by her mother as having little weight.

4. It is important where matters are so finely balanced that the Court not lose focus of the need to promote and facilitate the child’s relationship with the father providing the child is not seen to be at risk.  I do not consider that the child’s time with his father would take place in a natural and facilitative fashion if the supervisers were members of the mother’s family.

5. The child is now familiar with the paternal grandmother and I have little doubt that the protection of her grandson would be at the forefront of her mind.

6. I also accept that the paternal grandmother is aware of her obligations and would act appropriately even if contrary to her son’s interests.

CONCLUSION

1. Accordingly, I propose to impose a condition of supervision on the current orders regulating the time that the child spends with the father and in addition will put in place trial direction orders to enable the final hearing to commence on 22 May 2017.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 November 2016.

Associate: 

Date:  15 November 2016