Beale and Nicklin

[2016] FCCA 3176

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEALE & NICKLIN [2016] FCCA 3176

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged 3 years and eight months – allegation of sexual abuse – high conflict – should father’s time with child continue to be professionally supervised following positive contact centre report – assessment of risk – is degree of risk unacceptable – best interests.

Legislation:

Family Law Act 1975, ss.60B, 60CC

N & S and the Separate Representative (1996) FLC 92 - 655

M & M (1998) FLC 91 - 979

Applicant: MR BEALE

Respondent: MS NICKLIN

File Number: ADC 3723 of 2015

Judgment of: Judge Brown

Hearing date: 18 August 2016

Date of Last Submission: 18 August 2016

Delivered at: Adelaide

Delivered on: 18 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Adelaide Family Law

Counsel for the Respondent: In person

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The child X born (omitted) 2013 live with the mother.

2. The father spend time with the child as follows:

   (a)Each Tuesday and Thursday between 9:00am and 1:00pm commencing 23 August 2016 and each Sunday commencing 21 August 2016 from 2:00pm until 5:30pm;

   (b)The child is to be exchanged between the parties for the weekday periods at her childcare, (omitted) and for the weekend periods in the foyer of the (omitted) Police Station, subject to the consent of police to use the foyer until such time as the parties have been accepted by the (omitted) Children's Contact Service for exchange purposes only;

3. The father’s previous lay supervisor, Mr C, is to be present at the first Sunday handover to act as an intermediary if necessary.

4. The father’s time with the child is subject to the following conditions:

   (a)He be restrained and an injunction issue restraining him from consuming alcohol during any period of time the child is in his care or 24 hours beforehand.

   (b)The mother is to purchase or obtain an exercise book within 48 hours of now to use as a communication book to pass between the parties each time the child is to be exchanged between them and in which:

   (c)The mother is to record details of the child’s health, dietary preferences, sleeping patterns, health and any other matters relevant to her needs, including any illnesses diagnosed and any medication prescribed and provide helpful suggestions as to menus for lunch and an evening meal; and

   (d)The father is to record details of the child’s activities with him including contents of meals eaten by her; activities undertaken and any mishaps which might have befallen her.

5. In the case of a medical emergency or accident befalling the child each party is to advise the other as soon as possible as to the medical emergency or any injury suffered by the child when in his/her care and advise the other parent concerned of the names and addresses of any relevant treating medical practitioners.

6. The parents are to exchange contact details including mobile telephone numbers, emails and landline telephone numbers.

7. The parties are restrained and an injunction issue restraining them from denigrating the other in the presence or hearing of the said child or permit any other person to denigrate the other party in the presence or hearing of the said child.

8. The parties are restrained and an injunction issue restraining them from discussing the proceedings in the presence or hearing of the said child or permitting any other person to in the presence or hearing of the said child.

9. A copy of the orders made today are to be provided to the officer in charge of the (omitted) childcare (omitted) NOTING the applicant’s solicitor will attend to this.

10. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 24 November 2016.

11. The family assessment to deal with the following matters:

    (a)to include interviews with the parties, the child and relevant family members;

    (b)observed interaction between the child and the parties;

    (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

    (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

    (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

12. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

13. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

1. Further consideration of the matter is adjourned to 7 December 2016 at 9:30am for directions and if necessary to allocate a trial date and make any necessary arrangements for Christmas, X’s birthday and the father’s birthday. 

2. The matter is fixed for final hearing before Judge Brown on 15, 16 & 17 May 2017 at 10:00am NOTING 3 days allowed.

IT IS NOTED that publication of this judgment under the pseudonym Beale & Nicklin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3723 of 2015

MR BEALE

Applicant

And

MS NICKLIN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Given the controversy generated by the case and the fact that it is on-going it is appropriate that the reasons be transcribed.

2. The proceedings before me today concern interim parenting proceedings in respect of a child, X, who was born on (omitted) 2013. 

3. The parties to the proceedings are Mr Beale “the father” and Ms Nicklin “the mother”.  There is no dispute that currently X lives predominantly with her mother. 

4. The father does not seek to change X’s living arrangements but does seek to spend regular periods of time with her falling short of overnight time, but to include time during the week and on weekends.  He resists any application that his time with X be either professionally supervised or supervised by a lay person. 

5. Ms Nicklin vigorously resists the father’s application.  It is her position that it would represent an unwarranted risk to the health, safety and welfare of X, if Mr Beale spends lengthy periods of time with her which is not subject to at least some form of supervision.

6. The case concerns issues which frequently arise before the court in respect of arrangements for fairly young children to spend time with one of their parents invariably a father.  The issues relate to the tender years of the child concerned and fears the mother holds regarding the overall safety of the child, in both an emotional and physical sense whilst in her father’s care particularly overnight.  As the names of the parties suggest there are also significant cultural disparities between them. 

7. In addition, the relationship between the parents was a fairly brief one.  It appears to be common ground between them that they had no plans to have a child together, and the relationship between them foundered when X was only about four months of age.  Accordingly, there is no basis of shared experience, certainly of parenting, on which the parents can build or forge a workable parenting relationship between them at the present time. 

8. Recently, on 1 August 2016, I received a report from Family Consultant Ms R, who interviewed the parents separately on 1 August 2016.  She described the parties’ parenting relationship as acrimonious and not functional. She further said that the parties engaged in minimal communication.  At that stage, the parties were unable to reach any agreement in respect of arrangements for X’s care.

9. One of the features of these proceedings is that there are many significant evidentiary conflicts between the parties arising from their respective affidavit material which is extensive in nature.  This application arises at an interim stage.  As a consequence of the truncated nature of the hearing at this interim stage I am not able to resolve these factual issues.

10. However, nonetheless, notwithstanding these evidentiary deficits I cannot defer the hearing.  Rather I must endeavour, on the basis of the evidence available to me to make the orders which I think will be in X’s best interests. 

11. The proceedings have been on foot for a significant period of time. The father commenced them in October of 2015.  At that stage, it was his position that he felt compelled to begin court proceedings because he was unable to negotiate with Ms Nicklin, whom he thought was becoming increasingly unreasonable and blurring issues to do with X’s best interests with the parties’ personal political issues arising from their difficult and acrimonious separation.

12. Since Mr Beale began these proceedings, each party has filed numerous affidavits.  The matter was listed for interim hearing today.  I did not have time to deal with it on 8 August and, accordingly, it was listed for hearing today, a bit over a week later. 

13. Ms Nicklin has since withdrawn her instructions from her previous solicitor, Ms A, whom on my calculations, has filed five affidavits on behalf of Ms Nicklin together with a notice of risk.  Given her lack of representation Ms Nicklin wished to adjourn the proceedings.

14. In the circumstances, I was not prepared to adjourn the proceedings further.  In my view, it is in X’s interests that there be some further resolution of the interim issues in dispute between the parties.  As I had indicated, there are many issues in dispute between the parties.  They can be summarised as follows.

15. The father’s position is that the mother is a parent who is easily stressed.  It is his position that prior to the parties’ separation, he had an extensive involvement with X’s care and tended to her needs.  It is also his position that after the parties finally separated, in June of 2013, when X was about four months of age, the parties considered reconciliation and, indeed, travelled to (country omitted) together as a family which is the country where Ms Nicklin originated. 

16. In all these circumstances, it is Mr Beale’s case that he has previously had a strong relationship with X, particularly when she was a baby.  It is Mr Beale’s perception now that for reasons about which he can only conjecture, Ms Nicklin is intent on ensuring that he does not have a viable relationship with X whom he loves deeply.

17. In her notice of risk which was filed on 20 November 2015 and in her several affidavits, Ms Nicklin has alleged that Mr Beale has behaved inappropriately both towards her and, more significantly, towards X.  In particular, she asserts that towards the end of 2014, the mother witnessed the father rubbing the child’s bottom against his genital area, whilst saying, “I would like to root you, baby”. 

18. She alleges that the father has repeated this comment to the child on a number of occasions.  For his part, Mr Beale vigorously refutes the allegation.  For understandable reasons, allegations of this kind precipitate strong emotional responses in those against whom allegations of sexual impropriety involving children are made.

19. It is also the mother’s position that during the parties’ relationship and afterwards, the father drank to excess and has significant mental health issues.  She asserts that in the past he has been banned from a hotel for bad behaviour and has come to the notice of the police for being intoxicated. 

20. It is also her case that when intoxicated, Mr Beale has yelled at her and denigrated her, thrown and broken furniture and has behaved in a violent manner.  She acknowledges that after the parties separated, the family did travel to (country omitted) with Mr Beale, but she says that was only because he insisted that he come and after she had paid his fare.  The allegations of sexual abuse have been referred to the police.  The police are not going to take any action.

21. As I understand it, the only witnesses to the incident of alleged sexual are X herself, who was a child of a few months of age at the time – accordingly, she cannot, of course, be interviewed by police; Mr Beale, who denies the incident; and Ms Nicklin, whom Mr Beale asserts has a motivation for fabricating allegations against him.  It is also not beyond the bounds of possibility that, if something did occur, Ms Nicklin has misconstrued it or misunderstood it. 

22. In addition, Ms Nicklin asserts that Mr Beale is a compromised parent in many ways. She says that he did change some nappies, but she did most of the parenting required.  She also asserts that Mr Beale does not attend to X’s dietary needs appropriately and when she has spent time with him, she has come back having been fed, to use the jargon, junk food. 

23. Another significant issue arises in terms of a photograph which Ms Nicklin has exhibited to one of her affidavits.  It shows X with her lips on what is obviously a beer bottle.  Ms Nicklin asserts that Mr Beale was feeding the child beer which amply establishes that he is a compromised and un-insightful parent. 

24. Mr Beale asserts that the photograph is nothing more than perhaps a piece of amusement which may be criticised for being in bad taste or inappropriate, but cannot be interpreted as being an incident of abuse or harm to the child concerned.  He denies that the child actually ingested any beer.  He emphatically denies giving her alcohol regularly.

25. The mother is not in a position to say that the child has regularly ingested alcohol as there is no evidence that the child has ever been taken for medical treatment in respect of alcohol consumption and apart from the mother saying that it is evidence of abusive parenting and the father saying it is not, there is no independent, objective evidence to resolve the issue either way.

26. The proceedings have had a lengthy and protracted process through the courts.  At an early stage, orders were made for the parties to enrol at the (omitted) Children's Contact Centre.  Thereafter formal orders have been made for supervised time at the Centre. 

27. As a consequence, I now have a report from the supervisor of the Children’s Contact Centre at (omitted), Ms N.  In addition, orders have been made for the father to have supervised time with X, supervised by a variety of lay persons.  They include his mother Ms Beale and other friends of the father including a Mr B and a Mr C. 

28. I now have the children’s contact centre report to hand, as I say.  The report evidences that X knows her father and appears to be comfortable in his presence.  The report speaks of the child smiling at her father and engaging in a variety of activities.

29. Ms Nicklin has also read the report and she asserts that there is evidence to be gleaned from it of emotional manipulation and emotional neediness on Mr Beale’s part in that she asserts that the child is constantly asked by him if she loves her father. 

30. The supervisor has not ostensibly raised any concerns of this kind in her report and like the episode concerning the child and the beer bottle, I am concerned that it an issue which loom larger in Ms Nicklin’s mind rather than in reality. 

31. Today, I have also heard some oral evidence from Mr C, who speaks positively of what he knows of the child’s relationship with her father.  He has been facilitating the collection of the child from her current child care which is (omitted) in (omitted).  He deposed that X is happy to see her father and the two, that is, Mr Beale and X, engage together in a happy and positive way.  X apparently likes climbing onto her father’s shoulders.

32. In the past another child care centre has been utilised.  The coordinator of that child care centre has apparently been unwilling to have Mr Beale on the premises and has written a letter to this effect which Ms Nicklin has annexed in several of her affidavits.  It is alleged that Mr Beale has said disparaging things about the mother.  The father denies that.  It is his position that the mother through unfounded allegations of sexual abuse against him, has attempted to align the child care centre against him.

33. From that brief summary, it is clear that Ms R’s view of the parenting relationship between the parties as being acrimonious and difficult is undoubtedly the case.  It is against this troubling background that the parties’ competing applications must be determined.

34. Today, Mr Beale seeks to have two periods of weekday contact with the child together with a longer period on weekends.  He is currently employed as a self-employed (occupation omitted).  I think he works from home.  He has just started that business.  It does not generate any profits.  At present there is a child support assessment of a modest sum of money which I accept will go nowhere near to supporting the child’s needs.

35. Ms Nicklin is an (occupation omitted).  She works full time.  Accordingly, she has to place X in child care.  No doubt she gets some form of Commonwealth rebate for that, but it must represent a significant burden on her pocket. 

36. I suspect that along with the cultural disparities between the parties and the relationship difficulties arising between them, both prior and after their separation, issues to do with the financial support of X are a major factor leading to the acrimonious relationship between them.  Accordingly, this is a case which is vexed with all manner of difficulties. 

37. Ms R recommends that there be a family report prepared.  She also recommends that there be some sort of objective assessment by an independent person, such as a psychologist or psychiatrist, who has a therapeutic relationship with Mr Beale regarding his mental status; parenting capacity; and any information in respect of the allegations of a sexual nature made against him. 

38. To this end, Mr Beale has obtained a report from his treating psychiatrist, Dr M.  Dr M diagnoses Mr Beale as suffering a major depressive order which is presently in remission.  As a consequence of his depression, Mr Beale has given a history of emotional dysfunction which is described by Dr M as being typically low grade in nature but exemplified by episodes of alcohol misuse and gambling behaviour.

39. Mr Beale has been prescribed an antidepressant Lexapro and then a further antidepressant Pristiq, which has been more successful for him.  It is also the case that Dr M believes that incidents of depression in Mr Beale are likely to be precipitated by stressful situations in his life, including those relating to relationship breakdown, employment instability and in the context of these proceedings not being able to interact with his child.

1. It is Dr M’s view that Mr Beale’s alcohol use is now in remission and he reports that Mr Beale has not become intoxicated during 2016 and plans to abstain from alcohol when he has the care of his daughter.  Dr M does not have any concerns about Mr Beale’s capacity to parent X safely certainly on the basis of his alcohol consumption.  In addition, Dr M has no concerns about Mr Beale from a psychiatric perspective.  Dr M regards his depression as being well controlled and having been so for some time. 

2. Dr M has not been able to elicit any history from Mr Beale of any sexual deviancy and, as I say, Mr Beale has resolutely refuted any allegations that he has used the child as an objection of sexual gratification.  Ms Beale Senior is unable to continue with supervising any periods of time between father and child because she finds that process to be extremely stressful and her health, as I understand it, is poor.  The issue for today is whether lay supervision should continue.

3. The mother asserts that the current arrangement which is for three hours each week at most should only be augmented by a similar period of time.  She wishes that time to continue to be supervised as rigorously as possible.  Mr C has been fulfilling that function up to the present time after the conclusion of the involvement of the Children’s Contact Centre.

4. However, Ms Nicklin asserts that this supervision has not, in fact, been happening because X, who is about three and a half, told her that it was not and she believed her daughter.  Mr C was asked to give some additional evidence about his role in supervising the father’s time.  In this context, it was suggested to him that he had not been present.  Mr C resolutely refuted this suggestion. 

5. The dynamic of this case is a common one in cases coming before the court involving care arrangements for a young child.  The mother presents as being highly anxious and agitated at the prospect of the father spending any significant additional periods of time with the father.  She vigorously resists any normalisation of the relationship between father and child. 

6. I asked Ms Nicklin – and I should say at this point that the interim hearing has occupied the best part of the full morning – whether she was seeking any treatment for depression or anxiety.  Ms Nicklin told me, no, she was not.  It is also the case that during the period these proceedings have been on foot, Ms A, her solicitor has not presented any material which would suggest that the mother is psychologically incapable of supporting any orders that the court makes. 

7. It is, I think, to Ms Nicklin’s credit that she has abided by all the orders which have been made by the court, since December of 2015, given she fervently disagrees with them although some of the supervised periods of time were missed because X was ill. 

8. The issue now is whether there should be an advance of X’s time with her father and what form that advance should take.  From the mother’s perspective, any advance will be potentially risky for X.  From the father’s perspective, there is no such risk but rather a different type of risk, namely that X will not have the benefit of having a proper level of relationship with her father.

9. In this context, I must make some sort of assessment of the risk which Mr Beale potentially poses for X and having assessed any such risk put in place proportionate responses to it.  In performing that exercise I have to apply the provisions of the Family Law Act 1975.  These provisions are somewhat complicated. 

10. In this, as in all cases to do with children, the best interests of the child concerned are the paramount and most important consideration [see section 60CA]. In determining what is the best outcome for X must consider the objects and aims of the Family Law legislation as it pertains to children set out in section 60B(1), which include the following:

    “(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;”

11. The principles [section 60B(2)],  which underpin those objects include the following:

    Children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together.

12. So in this context, it matters not that the parties’ relationship with one another was comparatively brief and was obviously unhappy.  Rather, what I have to consider is the entitlement of X to have both her parents involved in her life.  At the same time I have to ensure that her safety is not compromised in any way. 

13. This is frequently a difficult balancing task to achieve at the interim stage.  However, in this case I consider I have extensive evidence available to me to help me with it.  This includes a report from the children’s contact centre which is positive so far as Mr Beale is concerned.  I have also had the benefit of having a not un-lengthy dialogue with Ms Nicklin herself and I have also heard some evidence from Mr C.

14. In considering X’s best interest I have to look to a long list of matters in section 60CC of the Family Law Act 1975. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations.

15. There are two primary considerations, which pick up on the objects and principles of the Act. They are set out in section 60CC(2)(a) & (b) namely:

    (a)   the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)   the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

16. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

17. However, although I must give primacy to protective concerns, given the overall structure of the Act, I am not in a position to ignore the benefits which will likely come to X of knowing her father.  It is, I think, the underpinning of Mr Beale’s case that these years of early childhood are very important for a child to develop a strong relationship with both parents. 

18. From his perspective the relationship will only become meaningful if he is able to engage with X in a variety of contexts and settings, which the current regime simply does not allow.  He is prepared to wait until what the family report says, so far as overnight time is concerned, which he is not pressing for now. 

19. His initial position, set out in his application of October of 2015 was a far more ambitious proposal than which he puts forward at this stage. In my view Mr Beale has tempered his position greatly in the light of the mother’s objections and allegations against him.  In my view, it cannot be said that he has been unreasonable up to this juncture. 

20. The additional considerations [section 60CC(3)] are longer.  They relate to such things as the wishes of the child; the parental capacity of each of the parents; and the existence of family violence orders and the like.  A child’s ethnic background is also relevant.

21. In the past arrangements were made for Ms Nicklin and X to travel to (country omitted) over the last Christmas period.  Clearly issues to do with X's (country omitted) background are very important in the case.  It also seems to me that there are issues again relating to cultural disparity which relate to X’s diet. 

22. In dialogue with me the mother indicated that she was concerned about X getting a sausage from her father.  Mr Beale’s position is that sausages are a part of life.  I have no desire to enter into any debate about whether a sausage is a suitable thing for a three-and-a-half-year-old to eat.  As in all things to do with everything, it is a question of balance.  A child cannot live on sausage alone, but a sausage can be part of the diet.  The same is true of treats and things of that nature. 

23. The issue of diet I think is more emblematic of the fact that the parties are unable to exchange any information whatsoever at all about this little girl which cannot be helpful to her.  Regardless of whether the parties like it or not, they are likely to be linked together in a relationship with one another as parents for at least the next 15 years and quite possibly for the rest of their lives. 

24. They need to think about how they are going to improve their relationship with one another because in the longer term it will not be helpful to this little girl if she has a sense that those who love her detest one another.  That will cause the child untold emotional harm, as potentially will the emotional consequence of a worthwhile parental relationship being either unnecessarily curtailed or cut.  

25. Ms Nicklin has made serious allegations of family violence, which I must carefully consider them.  There is an interim family violence intervention order which was granted on 25 June 2014 by the Holden Hill court naming Mr Beale as the defendant.  The applicant for the order was the police. 

26. It was subsequently withdrawn.  Ms Nicklin has asserted that after she threw a bottle at Mr Beale or in his direction he grabbed her throat.  Thereafter she says she was prevailed upon to withdraw the intervention order.  This must have been granted very shortly after the parties separated or in the immediate aftermath when relations between them were difficult. 

27. As I say, I have not heard any extensive evidence about the matter, but the mother does not assert that she has been put at risk at any – in any period since.  It is more likely than not at this juncture that this incident represented situational violence which arose because of the stressful circumstances in which the parties found themselves. 

28. Family violence is defined by section 4AB(1) of the Family Law Act 1975.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

29. In the jargon, what is characterised by the Act under the rubric of family violence is coercive and controlling family behaviour.  That is behaviour that controls another person.  I am not condoning either the throwing of a bottle or the grabbing of another person by the throat.  But it is frequently the case that individuals behave poorly and lash out when they are frustrated, angry or just unhappy. 

30. I have to look at that violence, try and categorise it, but also place it in the context of more nuanced concerns regarding what is in the best interests of this child, particularly the benefit she is likely to derive from having a proper and appropriate level of relationship with both her parents. 

31. Abuse, in respect of a child, is also defined by section 4(1) of the Family Law Act 1975.  It includes:

    (a)     an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

32. Clearly if, as is alleged, the father was – to use the mother's term – humping the child for his own sexual gratification, that would represent abuse.  As such it would be the most severe and heinous exploitation of a young child. 

33. The matter was reported to the police.  They could take the matter no further.  There are no other witnesses, and Mr Beale himself refutes the allegation.  His psychiatrist says this is not a man who has in the past displayed a history of sexual aberration.  There are no prior convictions or anything of that nature. 

34. In cases of this kind it is likely to be impossible for the court to make a definite finding one way or another as to whether an incident of sexual abuse did or did not occur.  The person who is best placed to give an objective assessment of what occurred is of course X herself.  But given her age, she is not in a position to be interviewed or say what happened.  She’s a child, and her vocabulary is necessarily limited. 

35. In many cases – not many cases – in some cases allegations of sexual abuse occur in the aftermath of relationship-breakdown or problems where the parents concerned communicate poorly if at all because of antipathy and suspicion.  For obvious reasons such circumstances provide fertile grounds in which words and actions can be misconceived, misunderstood or indeed manipulated. 

36. Sadly it is also not unknown to me and to others of my brethren for allegations of sexual abuse to be made for tactical or mischievous reasons.  Fogarty J, now the late Fogarty J, but a highly experienced judge, said as follows in N & S and the Separate Representative:[1]

    “Courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith as a result of a misperception of information about their child or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.” 

    [1]  See N & S and the Separate Representative, (1996) FLC 92 655

37. The High Court in the case of M & M,[2] has confirmed that in any matter involving allegations of abuse the only duty of the court is to make an order for custody or access which will, in the opinion of the court, best promote and protect the interest of the child.  As a result of this formulation the court – at both the interim and final instance stage – does not have an obligation or duty to resolve in a definite way the disputed allegation of sexual abuse.  Its responsibility remains to foster the best interests of the child concerned.

    [2]  See M & M, (1998) FLC 91 979

38. As I have pointed out, I am not in a position to say definitively whether or not Mr Beale did as he has alleged to have done.  I will probably never be in a position to reach such a resolution.  But nonetheless I still have to consider what sort of time arrangement should be made between X and her father. 

39. In this context, in M & M, the High Court formulated a test which is routinely referred to by lawyers as the unacceptable risk test.  In summary, a court should not grant parental access if it is concerned that to expose the child to a parent would pose an unacceptable risk for the child concerned. 

40. Again Fogarty J in N & S went to some lengths to explain what was meant by the unacceptable risk test.  He said as follows:

    “Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

    In asking whether the facts of the case do establish an unacceptable risk the court will often by required to ask such questions as: What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them?  What expert evidence has been provided?  Are there satisfactory explanations for the allegations apart from sexual abuse?  What are the likely future effects on the child?

    This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown.  The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case.  But it is essential that questions like these be asked.”

41. So in this case there is no evidence that X has complained to anybody else other than her mother; has displayed any aberrant personality traits; or has acted out in any unacceptable way.  The complaints arise in the context of highly acrimonious proceedings where there are complex emotional politics between the parties concerned overlaid by considerable cultural disparities.

42. Against that background, I must also bear in mind the inherent risk of either severing or unnecessarily curtailing a potential beneficial relationship for a child because of a nebulous or uncertain allegation of risk.  Risk cuts both ways.  There is a risk that I will do untold emotional harm to X by putting in place a regime, which for a lengthy period of time ensures that she has a stilted or truncated relationship with her father. 

43. I hope I have closely considered all these things.  Having heard Mr C, having read the report of Dr M and having made some brief assessment of Ms Nicklin herself, I have come to the conclusion that it would not represent an unacceptable risk for the court to take if Mr Beale has some unsupervised time with X, particularly in the context of the preparation of a family report which will provide some more evidence in an objective sense of the nature of the relationship between father and child.  In reaching this conclusion I bear in mind strongly the objects and principles of the Act which I have tried to summarise. 

44. These proceedings are necessarily in a truncated form.  I am unsure how long these reasons which are being orally delivered have taken to deliver.  Obviously, I have not had any extensive period of time to prepare them, but I am satisfied that I should make some orders which I believe are fairly modest in nature and that their modest nature in itself provides protection.  I was impressed by Mr C.  The proceedings have been on foot for coming up to 10 months.  It is time for Mr Beale to spend unsupervised time with X.

45. I asked Ms Nicklin if she accepted that Ms Beale love X.  I think she does accept that he does, but it took her some time to make that concession.  I also accept unreservedly that Ms Nicklin loves X passionately and would do everything, including quite possibly laying down her life to protect the child. 

46. But Ms Nicklin – and I mean her no disrespect – is not in a position, I think, objectively to ascertain the risk.  From her perspective the risk will always be unacceptable.  The time has come for the matter to progress in a modest increment which will include both weekday time and day time.

47. For these reasons I am going to make the orders as set out at the commencement of these reasons for judgment.  In so doing, I have endeavoured to consider arrangements at (omitted), particularly the time when X has her nap and when she has her lunch to ensure that Mr Beale is able to interact with the child and possibly give her some lunch or whatever. 

48. Similarly, on Sunday I appreciate Ms Nicklin’s position that she works very hard and she does not have much weekend time with X, but a balance has to be struck.  It is a fairly modest period of time on a Sunday and from my perspective it is important that some weekend time begin.

49. For all these reasons the orders of the court are as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty eight (88) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       15 December 2016