Betts and Bidwell

FAMILY COURT OF AUSTRALIA

BETTS & BIDWELL

[2018] FamCA 900

FAMILY LAW – CHILDREN – Where there is one child aged six years – Where the mother seeks that the child live with her and spend no time with the father – Where the father seeks an order for supervised time initially with a progression to unsupervised time – Where the mother and the Independent Children's Lawyer submit that the father is an unacceptable risk to the child due to sexual abuse allegations and the father’s ongoing illicit drug use – Where the exact extent of the father’s illicit drug use is unknown as he has elected not to comply with orders for random urinalysis testing – Where the father has failed to implement the recommendations of the court expert – Where the court finds that the child is placed at an unacceptable risk in the father’s care due to his illicit drug use – Where the court finds that the mother holds a genuine belief that the father sexually abused the child – Where an order for the child to spend time with the father may impact the mother’s parenting capacity – Where no time is ordered between the child and her father.

Family Law Act 1975 (Cth) ss 60CC, 60B, 61DA, 65DAA, 68B
Evidence Act 1995 (Cth) s 140

M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461
N and S& the Separate Representative (1996) FLC 92-655
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Ms Betts

RESPONDENT:

Mr Bidwell

INDEPENDENT CHILDREN’S LAWYER:

Johnson Horsley

FILE NUMBER:

WOC

787

2015

DATE DELIVERED:

31 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

6-8 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rebehy

SOLICITOR FOR THE APPLICANT:

MDV Family Lawyers

THE RESPONDENT:

Mr Bidwell appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Johnson Horsley Lawyers

Orders

That the mother have sole parental responsibility for the child X born … 2012 (“X”).
The mother do all such things as are required to engage a child psychologist for X including:
(a)obtaining from Dr B a recommendation as to a suitable child psychologist ("the psychologist")
(b)obtaining all necessary referrals including mental health assessment referrals to facilitate such psychological treatment and therapy for X
(c)following all reasonable directions in relation to such psychological treatment and therapy including recommendations as to the duration and frequency of such treatment and therapy.
Upon engaging such child psychologist that the mother notify the Independent Children's Lawyer (“ICL") of the name and address of the psychologist and further advise the ICL if and when the psychologist recommends no further treatment or therapy is to occur.
The father, should he wish to do so, prepare and maintain a documented story of his life for the purpose of possible presentation to X should the said psychologist deem it appropriate.
The ICL is permitted to write to the psychologist (and copy each correspondence to the mother but not to the father) advising:
(a) that the father has been given the option referred to in Order 3 above
(b)that if and when the psychologist deems it appropriate that X be shown the documented story, the psychologist contact the ICL to facilitate the documented story being obtained from the father.
The father is not to be informed of the name or address of the psychologist however the ICL is to advise the father when Order 4 has been complied with.
The father keep the ICL informed of his address.
Only upon the father being informed by the ICL that the psychologist has satisfied the ICL that the life story is to be shown to X, is the father to forward the life story to the ICL.
Upon receipt of the life story the ICL will forward the life story to the psychologist.
That it be noted: These Orders in no way are intended to bind the psychologist to present the said life story to X should he or she deem it inappropriate.

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 Betts & Bidwell 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 SYDNEY

FILE NUMBER: WOC 787 of 2015

Ms Betts

Applicant

And

Mr Bidwell

Respondent

And

Independent Children's Lawyer

Respondent

REASONS FOR JUDGMENT

The proceedings

Mr Bidwell and Ms Betts are the parents of X, who was born in 2012 and is currently six years of age. These proceedings concern parenting orders in relation to X.
The applicant mother sought the following orders:
1.That the mother have sole parental responsibility for X [X] born in 2012.
2.That X live with the mother.
3.That the father have not (sic) contact with X by any means whatsoever.
4.That the father, other than with the written consent of the mother, is to otherwise be restrained, pursuant to Section 68B of the Family Law Act 1975, from:
4.1Attempting to contact X by any means whatsoever, including through a third party;
4.2Approaching, or coming within 100 metres of any place where X might from time to time reside;
4.3Approaching or coming within 100 metres of any day care centre or school which X might attend or is enrolled.
4.4Pursuant to Section 68C of the Family Law Act 1975 (Cth), if a Police Officer believes on reasonable grounds that the father against whom the injunction is directed has breached the injunction causing or threatening to cause bodily harm to X or harassing, molesting or stalking, X that person may arrest the father without a warrant.
By a Response filed on 12 November 2015 the respondent father sought orders which may be summarised as follows:
1. The parties have equal shared parental responsibility for X.
2. X live with the mother.
3.X spend time with the father each alternate weekend; for half of all school holidays and on special occasions.
4.Each of the parties keep the other informed in relation to significant matters concerning X.
In his Outline of Case document the father indicated that he sought orders which may be summarised as follows:
1. X live primarily with the mother.
2. X spend time with the father under supervision initially.
3.The father participate in decisions in relation to X including education and medical treatment.
4.X and the father communicate with each other by telephone, letter and email.
5.The mother undertake counselling as recommended by the single expert Dr B.
In his oral evidence the father confirmed that he proposed that X spend time with him under supervision initially, until she "is comfortable" and thereafter each alternate weekend from Friday afternoon until Sunday evening; during school holidays and on special occasions. The father also sought an order that he and X communicate with each other by telephone.
The Independent Children's Lawyer ("ICL") supported the mother's proposal, with the exception of the orders which she sought pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”). The ICL sought the following additional orders:
1.THAT the mother do all such things as are required to engage a child psychologist for [X] born …2012 including:
(a)Obtaining from Dr B a recommendation as to a suitable child psychologist
(b)Obtaining all necessary referrals including mental health assessment referrals to facilitate such psychological treatment and therapy for X
(c)following all reasonable directions in relation to such psychological treatment and therapy including recommendations as to the duration and frequency of such treatment and therapy.
2.THAT upon engaging such child psychologist that the mother notify the Independent Children's Lawyer of the name and address of the psychologist and further advise the Independent Children's Lawyer if and when the psychologist recommends no further treatment or therapy is to occur.
3.THAT the father, should he wish to do so, prepare and maintain a documented story of his life for the purpose of possible presentation to X should the said Child Psychologist deem it appropriate.
4.THAT the Independent Children's Lawyer be permitted to write to the said Child Psychologist (and copy each correspondence to the mother but not to the father) advising:
(a)That the father has been given the option referred to in Order 3 above
(b)That if and when the said child psychologist deems it appropriate that X be shown the documented story, the psychologist contact the Independent Children's Lawyer to facilitate the documented story being obtained from the father.
5.That the father is not to be informed of the name or address of the said child psychologist however the Independent Children's Lawyer is to advise the father when Order 4 has been complied with.
6.That the father keep the Independent Children's Lawyer informed of his address.
7.That only upon the father being informed by the Independent Children's Lawyer that the psychologist has notified the Independent Children's Lawyer that the life story is to be shown to X, is the father to forward the life story to the Independent Children's Lawyer.
8.That thence on receipt of the said life story the Independent Children's Lawyer is to forward it to the child psychologist.
9.That it be noted: These Orders in no way are intended to bind the said child psychologist to present the said life story to X should he or she deem it inappropriate.
The additional orders proposed by the ICL followed the recommendations of the single expert, contained in both her report and oral evidence. The mother consented to these orders.
The mother and the ICL submitted that X would be placed at unacceptable risk if she spends time with the father. Both the mother and the ICL sought a finding that X would be placed at an unacceptable risk of sexual abuse by the father. The mother and the ICL both submitted further that the father's ongoing use of the drugs cannabis, amphetamines ("speed") and methamphetamines ("ice") would place X at an unacceptable risk in his care.

The evidence and witnesses

The applicant mother relied on the following affidavits:
1.        Ms Betts (the mother) sworn on 30 July 2018
2.        Mr C Betts (the maternal grandfather) sworn on 11 May 2017
3.        Ms D Betts (the maternal grandmother) sworn on 11 May 2017.
The mother and her parents all gave oral evidence by way of cross-examination, primarily by counsel for the ICL.
The respondent father relied on the following affidavits:
1. Mr Bidwell (the father) sworn on 27 February 2017
2.Ms E Bidwell (the paternal grandmother) sworn on 10 March 2017
3.Ms F Bidwell (a paternal aunt) sworn on 27 February 2017.
The father, his mother and sister all gave oral evidence by way of

cross-examination.
I had the benefit of a single expert report prepared by a psychiatrist, Dr B, dated 18 October 2016. Dr B also gave oral evidence.

Approach to these proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of X who is the subject of the proceedings. Part VII of the Act sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of X (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in X’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in X’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said at page 464:
[8]Subsection (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether X spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”
…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of X to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
[footnotes omitted]
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M v M (1988) 166 CLR 69 (“M v M”). Their Honours said at page 76:
“…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…”
and at page 76:
“…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 to determine, 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.”
In M v M at pp. 76-77 the High Court identified the relevant standard of proof in these terms:
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 at p.362]. There Dixon J said:
“The seriousness of an allegation made, the inherent likelihood 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.’”
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)   the nature of the subject matter of the proceeding; and
(c)    the gravity of the matters alleged.

The High Court in M v M addressed the issue of “unacceptable risk” of sexual abuse and said at page 77:
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 assess 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 a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 (“W and W”) the Full Court (Warnick, May and Boland JJ) discussed the “unacceptable risk test”, and said:
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S& the Separate Representative (1996)
FLC 92-655:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be 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 have the allegations been made? 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 of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.

Background

The mother and the father, who are aged 36 and 35 respectively, began to cohabit in September 2009. They separated in May 2014, although they again lived together for approximately one week in November 2014.
The mother has two children from previous relationships. Her sons Y and Z, who are aged 15 and 13 respectively, lived with the parties throughout their cohabitation. The boys spend time with the natural father of Z by arrangement with the mother from time to time.
In 2009 the mother ceased using speed and, approximately six months later, she became involved with the Brighter Futures Program operated by the Department of Family and Community Services ("FACS"). The parties met toward the end of the mother's period of engagement with the Brighter Futures Program.
During their relationship both parties used illicit drugs. The father deposed that he began to use cannabis when he was approximately 13 years old. He conceded that he was using this drug at the time of the trial in August 2018. The father said "I have been smoking pot to deal with all the stuff I have been going through". He gave no indication that he intends to take any steps to address his use of cannabis, despite his admission that "I have a problem with pot".
The father said that he began to use speed when he was aged in his early twenties. He said in his oral evidence that he last had used this drug approximately one month before the trial. The father said that he had used ice about three months before the trial and on another occasion some two to three months earlier at a party.
The mother deposed that she began to smoke marijuana with the father about 18 months after the commencement of their relationship and progressed to daily usage. She also used speed during the parties' cohabitation. The mother deposed that she first used ice in June 2013, when she was unable to obtain speed.
The mother indicated that she and the father used ice together during their relationship. Neither party had previously used ice but, according to the mother, they both became "heavy users" and consumed this drug each week and sometimes on a daily basis. In cross-examination the father conceded that there were periods when he used ice on a daily basis.
In August 2013 the mother moved into the home of her parents while they were away on a holiday. She and the father used ice together and reconciled during this period. The maternal grandparents evicted the mother and father from their home when they returned from the holiday and they then moved into premises at Penrith.
In 2013/2014 the mother suffered from depression and was prescribed the drug Zoloft. In April 2014 she took seven or eight Zoloft tablets and lost consciousness. The mother deposed that, as this experience frightened her, she apologised to her parents for her drug use and moved into their home with Y, Z and X.
From mid-2014 X began to spend time with the father each Tuesday and Thursday and every alternate weekend from 9.00 am on Saturday until 4.00 pm on Sunday. This arrangement continued until February 2015, when X last spent time with the father. The father conceded that he used cannabis, speed and ice during this period but maintained "I did not take drugs when I had her".
In November 2014 the parties reconciled for approximately one week, when they stayed in the home of the maternal grandparents during their absence on a holiday. They used ice together more than once during this brief reconciliation and the mother and the children returned to live with the father. She deposed that she did not use drugs for three days and then sought help from her parents and a counsellor.
The mother gave unchallenged and uncontradicted evidence that she has used no illicit drugs since November 2014. She submitted to voluntary urinalysis in January 2015 and returned a negative result. The mother has returned seven negative results to urinalysis re-testing required by the ICL, pursuant to Orders of 8 September 2015, in the course of these proceedings.
The mother alleged the father asked her for contact details of an ice dealer in January 2015. The mother then requested that the father undergo a urinalysis test but he refused to do so. The father has undertaken none of the urinalysis tests required by the ICL in the course of these proceedings.
The mother alleged that in late February/early March 2015 she and X had the following conversation:
73.
(a)Whilst [X] was in the bath I was bathing her and I said words to the effect "what are you doing have you got your finger in your bottom?"
(b)She said "yes, it's a game I play with dad" in next breath (sic) [X] said "I put it in my wetty as well". I know [X's] wetty to be her vagina ...

The mother took X to her general practitioner, Dr G, on the following day. On the next day she informed her drug and alcohol counsellor of X's statements. This counsellor advised that he or she was a mandatory reporter and would make a notification if the mother did not so do herself. The mother telephoned FACS on the same day.
The mother alleged that X next made concerning statements of this nature on 22 March 2015. She deposed:
76.It was on 22 March 2015 that [X] again disclosed the following whilst having a bath, [X] said "I'm tickling myself. It's nice I like it". [X] was looking at me smiling. [X's] finger was inside her and she was moving it around. I recall saying to [X] words to the effect "Oh ok stop it darling we have to get clean now.
The mother alleged that X made further statements which may indicate inappropriate conduct on the part of the father on 10 July 2015. She deposed as follows:
81.On 10 July 2015 [X] said words to the effect "There's a big scary monster in my room, it's big and round like my daddy's doodle." "Come and check mum". "Can you find him?
JIRT became involved and officers first interviewed X when she was three years old. The Magellan Report indicated that "she did not disclose any abuse, physical or sexual".
The maternal grandmother deposed that X made the following statements to her:
30. [X] has said to me words to the following effect:
"Daddy has put his doodle in her mouth and made me choke."
31.When [X] said this to me [X] made gagging noises. [X] then said words to the effect "Daddy then weed in my mouth and it was gross."
...
33.On another occasion, [X] was playing with her fishing game and was holding the fish against her privates. [X] said "They're licking me like my dad does".
The outcome of the JIRT investigation was summarised as follows in the Magellan Report:
During the second interview [X] initially denied any disclosures of physical or sexual abuse. When [X] was directly asked "someone said to me that your dad put his doodle on your face" [X] corrected him and said "No, he put it in my mouth". She went on to disclose that her father did this at his house. She said further, "he weed in her mouth" and this made her "angry" and she didn't like the taste. She also talked about her father taking off his pants and then staying to play with the Barbie dolls after the incident.
The matter of sexual abuse was substantiated but not investigated any further as there was not enough evidence to support criminal charges. It is unclear from the information recorded if [Mr Bidwell] was informed of the disclosure or given an opportunity to be interviewed regarding the allegations.
Since the interview by JIRT, Community Services received another 4 reports that were disclosing abuse or sexualised behaviour. These were not allocated for a response as the information was similar to what had already been investigated and it was considered [Ms Betts] is being protective as she was not allowing [Mr Bidwell] access to [X] and [X] was receiving sexual assault intervention. ...
In April 2015 the mother and the children moved to the South Coast to live with the maternal grandparents. In March 2018 the mother, Y, Z and X moved into their own accommodation a short distance from the home of the maternal grandparents.
The mother alleged that X has continued to make statements which may indicate inappropriate sexual conduct on the part of the father. She deposed to the following conversation with X on 21 January 2016:
(iii)On 21 January 2016 at about 7.30pm I had a talk with [X]. Earlier that day [X] had said to me words to the effect "Mummy can you tickle my wetty." I did not respond to [X] on the spot and instead thought it best to distract her and talk to [X] at a later time. [X] and I then had the following conversation using words to the effect:
Me:"I just want to have a little chat with you, remember talking to mummy today about you wanted me to tickle your wetty?
[X]:"Yeah"
Me:"I want you to know ok that if anyone touches your wetty or tickled your wetty you can tell me, yes"
[X]:"Ummm Daddy has touched my wetty"
Me:"Has he done anything else?"
[X]:                 "Yep, he tickled my bottom."
Me:                 "How did you feel when he tickled your wetty?
[X]:                 "Umm Angry."
Me:                 "Angry? Can you explain that to me?"
[X]:"Cause he punched me. He tickled his wetty, his noodle and he walked in front of me without his undies on and not his pants he squirted wee out when I had my nightie on"
Me:                 "It's called a penis ok?
[X]:                 "and its your Privates!!"
Me:                 "good girl"
[X]:"He showed me his privates, he wagged his bum at me. He pooed on the ground and wee'd in his undies"
Me:                 "how did that make you feel?"
[X]:                 "I runned away from him"
Me:                 "When you said that he put his noodle in your face.."
[X]:"Yeah no he actually put it right onto my face, he put it in my mouth.”
Me:                 "How did that make you feel"
[X]:"I went [X then went quiet and made coughing sounds] He made me cough I didn't like it."
Me:                 "How come you didn't tell mummy?"
[X]:                 "Because you weren't there."
Me:                 "Thank you for talking to me today"
[X]:                 "Daddy's done lots of things"
I have reported this incident to JIRT and I made a further report to the H Town Police Station.
The mother deposed further that Y informed her of the following conversation with X on 29 January 2016:
(v)On 29 January 2016 at about 3.50pm my son Y came to me and reported the following incident:
[Y]:"Me and [X] were wrestling when she bit my penis, I asked her why?
[X]:"My daddy makes me choke.
[Y]:"With what?"
[X]:"I don't want to tell you"
[Y]:"how come?"
[X]:"Ahhh okay [X starts to whisper] he does it with his noodle"
[Y] then came straight to me. [Y] then wrote it down words (sic) for word.
The mother further deposed that Y informed her of the following conversation with X on 2 February 2016:
(vii)On 2 February 2016 at about 6.05pm [Y] reported to me the following incident. [X] was playing with [Y] with slime.
[X] said:        "slimes gross [Y]"
[Y]:                 "Yeah I know"
[X]:"What's the grossest thing that happens to you [Y]?"
[Y]:                 "I break wind [X]. What about you X"
[X]:                 "My daddy touches my wetty."
The mother deposed to the following conversation with X on 9 May 2016, whilst X was in the bath:
122.     …
[X]:         "People should touch your wetty should they mum"
Me:         "No they shouldn't"
[X]:         "Daddy weed in my mouth and on my wetty"
Me:         "Well no one should ever do that"
[X]:         "He put his doodle in my mouth"
Me:         "How did that make you feel"
[X] then made a choking and coughing noise and then said words to the effect "yuck it was yukky".
123.On 13 May 2016 [X] made further disclosures. I recall [Z] and I were laying in bed with [X]. It was at about 10.30 pm / 11.00 pm at night. [X] was refusing to go to sleep. [X] then said words to the effect "My dad put his doodle in my mouth. He wrote you a letter mum saying "You will never see your daughter again ever. You can't come and pick her up anymore". [X] then pretended to hand it to me. [X] then said "My dad wrote it for you and it said "[Ms Betts], you will never see your daughter again ever."
The mother deposed to the following conversation with X on 14 May 2016:
125.On 14 May 2016 I recall telling X she was safe here with me X then said words to the effect "my dad doesn't love you but I do. You and my dad aren't getting married are you?" I said "No we are not." X and I then had the following conversation:
[X]:          "my Dads evil"
Me:          "Can I ask you something?"
[X]:          "Yes"
Me:          "Has he ever threatened to hurt you?"
[X]:          "yes"
Me:          "Can I ask another one?"
[X] nodded.
Me:          "Has he ever put his penis near your wetty?"
[X]:          (Quietly) "I'm sorry mum, I lied about all of it."
Me:          "What do you mean?"
[X]:"We just play with the dog and feed him everyday and then when you came to pick me up he threw a beer bottle at the car."
In May 2015 the father was convicted of possession of a prohibited drug, being ice, and fined $900. On 5 December 2015 the father was stopped by police and found to be in possession of 0.35 grams of ice. In February 2016 the father was convicted of possession of a prohibited drug and fined $1,000. On this occasion the father was in possession of cannabis.
On 23 March 2016 the father was stopped by police while driving in Suburb J with a female passenger. Police found "a clear resealable bag containing a crystal substance" in the central console of the vehicle. The father and his passenger denied any knowledge of this substance and police took no further action, as there was no proof of possession.
On 25 October 2017 the father was stopped by police in the early hours of the morning. Police officers found approximately 40 used syringes in his backpack. The father denied that police found "40 used syringes" in his backpack. He then said words to the effect that "the syringes were in a room I moved into and I took them to a disposal unit. I did not want to be seen going there."
On 15 November 2017 the father was stopped by police while riding a motorised bicycle in Suburb K and arrested for failure to wear a helmet. Police found approximately 0.55 grams of ice in his backpack and he was fined $200. The father informed police that his backpack contained a number of syringes.
The mother alleged that the father has directed verbal abuse at her on many occasions, including at changeovers during 2014 and 2015. She deposed that the father screamed at her, in the presence of X "I fucking love you you slut" during some of these changeovers. The maternal grandparents deposed that they attended changeovers because of this conduct of the father.
A COPS entry dated May 2015 referred to telephone messages left for the mother by the father in April 2015. This COPS entry read in part as follows:
... About 11:11am on 27^th April 2015 the PINOP received a phone call on her mobile from a private number. She didn't answer it and let it got (sic) to message bank. When the message was checked the PINOP heard the DEFTs voice. The message stated, "Ring me back you fucking trash." The PINOP states his tone was intent, he sounded angry and vengeful. Between 11:11am and 12:23pm the DEFT rang the PINOPs mobile a total of five times. In the messages the DEFT stated, "Answer you're (sic) fucking phone dog. Wanna fucking see what a man who's got nothing to lose can do. What are you Fucking doing you stupid cunt. You want to cancel the fucking mediation. I'm coming down to find you now you fucking dog. Fucking had enough slut you've fucked me over too many times cunt. You stripped me to nothing you piece of shit. I'm coming down to find you you stupid slut. You fucked me over too many times." ... About 6:42pm on 27^th April the PINOP received a picture message from the DEFTs phone, number: .......... The message was a picture of a father holding onto a daughter saying, "The real deadbeat is the woman that keeps her child from a loving father." ...
In cross-examination the father conceded that he left these messages on the mother's telephone. He added "I could have said anything at this time. I had just had my heart ripped out." The father conceded that at least one of these message could be construed as a threat and that the mother "could have been quite frightened by this conduct."
A provisional Apprehended Violence Order (“AVO”) for the protection of the mother and X was issued against the father in early May 2015. Later in May 2015 a final Apprehended Violence Order was made against the father for a period of twelve months.

Section 60CC(2) considerations

Section 60CC(2)(a) the benefit to X of having a meaningful relationship with both of X’s parents

Dr B observed X's reaction when she informed her that the father would be present on the day of the interviews. She reported as follows:
Her mood was happy and cheerful until I discussed her father being present on the day of the assessment, at which point X became quiet, awkward and somewhat sullen. She then asked to end the interview and go back and play with her family, as will be discussed further below. Prior to this point, X had not demonstrated any evidence of distress, discomfort, anxiety or emotionality.
Dr B discussed the father with X and reported as follows:
187.[X] stated that she did not know why she had come to see me and she claimed that her mother did not tell her anything about the visit to Sydney or its purpose. As such, she described the events of the days being quite "weird" because she was not expecting them. I explained to her the nature and purpose of my assessment, as well as the limits to confidentiality in an age-appropriate manner. [X] responded by telling me that she does not want to see her father. [X] reported that she has not seen her father now in a long time and she believes this is because she moved with her mother and brothers. [X] stated that this makes her sad because she misses her father. She claimed to have fond memories of eating pizza with her father and his dog. To this end, X commented that she likes her father and there is nothing about him that she does not like or that has made her feel yucky.
Dr B reported further, in relation to X's reaction to the prospect of seeing the father, as follows:
190.At this point I told [X] that her father would be coming to my office and that she could see him if she wanted to. Her mood changed immediately and she became sullen and disconnected. [X] told me that she did not want to see her father and despite giving her several opportunities to discuss this and change her mind, [X] told me that she did not want to see father (sic) because in reality, he is not nice. She stated that sometimes she has to sleep with him at his house but [X] would not discuss why her father was not nice in any more detail and after several attempts at redirecting the topic with me, she asked if she could go back and see her mother again. I did not force the issue and terminated the conversation at that point before taking her back to [Ms Betts] when X's mood lifted again.
Dr B proffered these opinions in relation to X's reaction to the topic of the father:
220.[Mr. Bidwell] has not had contact with X since early 2015 and I note that he is not the one that initiated these proceedings. [X's] behaviour has reportedly settled in the absence of her father, although she is yet to engage in professional therapy. This would suggest that, to some extent, the trauma she was demonstrating was a function of her contact with [Mr. Bidwell]. It is therefore, important that the Court weigh up the risk versus benefit that [X] may gain from having contact with her father. Although she described liking her father, it is clear that she is quite frightened of him or at least unsettled by the idea of seeing him. Whatever the reason for this (e.g., it may be simply that she has not seen him for some time), her bond with him and desire to have him in her life was not sufficient for her to tolerate her emotional state enough to want to see him at the time of my assessment. Further to this, [X] appears settled with her routine and family connections at present and she does not identify [Mr Bidwell] to be part of her family unit.
The mother has been X's primary carer throughout her life. Dr B opined that the mother was "child focussed and her language was appropriate in both tone and content" during her observations. I refer below to the assessment of Dr B as to the nature of the relationship between X and the mother.
In my view the father's ongoing use of illicit drugs is a matter of considerable concern, in terms of the need to protect X from risk of physical or psychological harm. In cross-examination the father said, inter alia, words to the following effect:
●I have no information about the effects of speed and ice on a person
●ice does not make me feel happy, make me take more risks, feel anxious, increase my desire to have sex, feel paranoid, it is easier to block people out, I get more done, have more energy, it does not increase my confidence
●I do not believe that drugs impact on my behaviour in any way
●I lose inhibitions with the drugs I use.
In her oral evidence, Dr B described the effects of ice, marijuana and speed on a person. She said:
Ice is a stimulant, it causes an increase in energy, sexual drive, and agitation. Over time it causes an increasing break with reality and a person's moral compass becomes skewed. Marijuana is the opposite. A slowing-down drug, a dulling of mental processes, a slowing of reaction time. Speed is a baby brother to ice, it is not as severe.
In her oral evidence Dr B was asked to comment in relation to the father's above evidence in relation to the effects of ice, speed and marijuana upon him. In particular, she was asked for her opinion as to the father's evidence that he does not experience adverse effects from ice. Dr B said:
I would almost be shocked beyond belief at the father's lack of insight into the effects of drugs upon him. Absolutely these substances impact upon decision-making and a person may do things that they would not normally do. The only real answer for the father is abstinence. It might take three weeks to get clean and two years to get abstinent.
The fact is that the extent of the father's current use of illicit drugs is unknown, as the only evidence came from him and he elected not to comply with Orders for random urinalysis upon request by the ICL. In my view it is a matter of concern that the father admitted that he uses illicit drugs in the home of the mother, despite his being fully aware that she disapproves of this behaviour. I have referred above to the evidence contained in documents produced on subpoena by the New South Wales police in relation to the father's involvement in drug-related activities.
Dr B assessed that the father is a "moderate" risk of future sexual abuse to X. She opined as follows:
232.In sum, risk assessment suggests that [Mr. Bidwell] presents with greater risks in parenting when compared to [Ms. Betts] in a general sense. Specifically in relation to sexual abuse, it is suggested that [Mr. Bidwell] poses a Moderate risk of future sexual abuse of [X], although his risk of sexual abuse in a general sense is lower. If [Mr. Bidwell] did abuse his daughter sexually, it would seem most likely that this occurred in the context of emotional loneliness and distress as a function of significant relationship breakdown that left him bereft of other means of meeting his emotional/intimacy needs.
I note the father's strenuous denials that he ever acted toward X in a sexually inappropriate manner. I note also that he dismissed the possibility that he had touched X in the genital area in an innocent context. My concern in relation to these denials on the part of the father arises from the expert evidence of Dr B as to the impact of his drug use upon the father. As noted above, however, neither the mother nor the ICL sought a finding that the father has perpetrated sexual abuse upon X. I accept the submission of counsel for the ICL to the effect that:
The risk of sexual abuse dovetails in with the father's drug use, particularly ice.
In her report of 18 October 2016 Dr B made specific recommendations as to the steps which the father should take before X spends time with him. She opined as follows:
●That [Mr. Bidwell] addresses his cannabis use and become abstinent, which can be monitored through random urinalysis testing over a period of 12 months. This may require [Mr. Bidwell] to engage in specialist substance abuse treatment in order to develop his commitment to abstinence and his skills for relapse prevention.
●That [Mr. Bidwell] engages in sessions with a specialist clinician experienced in work with matters of child/sexual abuse. These sessions should help him develop insight into X's experience, in addition to developing accountability for any inappropriate behaviours, sexual or otherwise, and a comprehensive plan for safe parenting, even if contact only occurs on a supervised basis ...
The father has taken none of these steps and could offer no explanation for his failure to do so. Dr B opined that the father's inaction is "concerning", as it demonstrates "a lack of insight into the severity of the problem, a lack of ability to put X's needs ahead of his." Dr B noted that the father has persisted with a lifestyle which would not meet X's needs.
I do not consider it necessary that I make a finding on the balance of probabilities, as to whether the father subjected X to sexual abuse. I am satisfied, and I find, that the father's ongoing use of illicit drugs would expose X to an unacceptable risk of physical or psychological harm in a variety of ways.
The father proposed that X spend time with him under supervision for an unquantified initial period. He made no proposals as to potential supervisors, however, and said in cross-examination "I would not have a clue who should supervise. I have not asked my mother or my sister. The only reason I've put it in is the time since I have seen [X]."
The father's sister Ms F Bidwell said "I don't know what being a supervisor would look like." The paternal grandmother Ms E Bidwell said "I know that he seeks supervised time initially. I assumed an independent person would supervise and later at my place. I have made enquiries about supervision. I will pay. We have not made enquiries about contact centres".

Section 60CC(3) considerations

I will refer only to those considerations set out in section 60CC(3) which are relevant to these proceedings. Some of these considerations clearly are not at apposite for present purposes.

Section 60CC(3)(a) any views expressed by X and any factors (such as X’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to X’s views

X is six years old and her stated views would to carry little weight in the determination of these proceedings. Dr B expressed these opinions concerning the views of X in her report:
[X] suggested that she misses and likes her father initially but when she was confronted with the idea that she might see him in person, her manner and mood changed, and she ostensibly shut down and sought to end the interview. Within this context, [X] stated that she loves her mother and wants to stay with her, whilst she does not want to see her father. This is important and speaks to her level of emotional distress associated with her father. However, [X] is only young and therefore, limited weight should be afforded her position in this regard.

Section 60CC(3)(b) the nature of the relationship of X with: (i) each of X’s parents; and (ii) other persons (including any grandparent or other relative of X)

I have referred above to the assessment of Dr B in relation to the nature of X's relationships with the mother and the father. In her report Dr B opined:
[X] appears to have a strong and stable bond with her mother but she is avoidant and seemingly afraid of her father. I am unsure what X's relationship was with her father prior to the separation, although Mr. Bidwell suggests it was positive. Even so, it does appear that Ms. Betts has always been X's primary caregiver and an attachment figure.
In her report Dr B also considered the nature of X's relationships with the maternal grandparents and her half-brothers. She reported as follows:
192.In sum, the observations of contact between X and her maternal grandparents were normal and unremarkable. This seems like a family that is engaged and comfortable with one another and I did not observe anything that raised concern or that I considered was inappropriate. Rather, [Ms Betts] interacted well with her children and particularly [X] and [X] appears to be comfortable with her family and responsive within their relationships.

Section 60CC(3)(c) the extent to which each of X’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to X; and (ii) to spend time with X; and (iii) to communicate with X

The father failed to implement any of the recommendations of Dr B. He thus did not avail himself of the opportunity to create a situation in which he could participate in decisions concerning major long-term issues in relation to X. He has been aware of these recommendations since October 2016 but has failed to take any constructive steps in this regard.
The mother has been responsible for decision-making in relation to major

long-term issues in relation to X and has received considerable assistance from her parents. The maternal grandparents supported the mother's decision to obtain independent accommodation and they are in regular contact with the family.

Section 60CC(3)(d) the likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of X), with whom he or she has been living

Dr B assessed that the mother has a genuine belief that X was sexually abused by the father. In her oral evidence Dr B said:
The mother has a genuine belief that something happened to [X] at the father's home. It is important to protect her parenting capacity, that is a significant issue that needs to be afforded some weight.
In her report Dr B referred to X's need for stability, after a somewhat disturbed start to her life. Dr B opined as follows:
[X] has had a difficult few years it seems and this has been evident in her dysregulated behaviour and signs of trauma. It is my understanding that she is now settled and comfortable and although she does not have contact with her father, it would be unsettling and disturbing for [X] if her routine and stability were to change.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis

The mother lives on the South Coast of New South Wales and the father resides largely with his mother in Sydney. The father does not own a car and currently is not engaged in paid employment. His evidence was that he could obtain work with a likely income of about $1,000 per week. At present, therefore, difficulties of distance and available funds constitute practical hurdles to X spending time with the father.

Section 60CC(3)(f) the capacity of: (i) each of X’s parents; and (ii) any other person (including any grandparent or other relative of X); to provide for the needs of X, including emotional and intellectual needs

It is obvious from the evidence set out above that the capacity of each of X's parents to provide for her needs has been compromised in the past. It appears, however, that the mother has successfully addressed her drug-related and mental health problems. In her oral evidence Dr B opined as follows:
I think the current status quo is probably good enough but I recommend that the mother has psychological support. Her fears are a trigger. That is ideal but not essential.
Unfortunately, as noted, the father has taken no constructive steps to address his drug-related issues. As noted further, he continues to use illicit drugs to an extent which cannot be determined on the available evidence.
In her report Dr B identified difficulties in the parental capacity of each of the mother and the father. She opined as follows:
[Ms. Betts] and her parents impress as having the ability to meet [X's] needs, although [Ms. Betts] is considered somewhat vulnerable in this given her mental health issues and background of substance abuse and poor relationship choices that have adversely destabilised her ability to prioritise her children's needs in the past. It seems that the support of her parents holds [Ms. Betts] to a degree to this end. [Mr. Bidwell's] ability to meet [X's] needs, on the other hand, is more fragile and tenuous, associated with the risk for sexual abuse, his self-regulation difficulties, substance abuse and generally self-focussed approach to parenting.

Section 60CC(3)(i) the attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents

I am satisfied that both the mother and the father are committed to X but, most regrettably, he has failed to take the preliminary steps outlined by Dr B to restore the parent/child relationship. I accept that the father has been deeply affected by the allegations of sexual abuse but Dr B offered a pathway forward some two years ago. Dr B in her report expressed these opinions:
221.In sum, [Ms. Betts] is suggested to have acted protectively for X by "gate keeping" in relation to [Mr. Bidwell], although this has not been overly or inappropriately restrictive. She has acknowledged her flaws and her history with the fathers of her other children suggests that she is not exclusionary, nor does [Ms. Betts] actively seek to manipulate her children and alienate them from their fathers. [Mr. Bidwell], on the other hand, expresses love for and commitment to his child, but he has not followed this through with consistent action and although I have no doubt that he loves [X], I have concerns about his ability to be a responsible and safe father consistently, whether this be in relation to substance abuse or sexual violence.

Section 60CC(3)(j) any family violence involving X or a member of X’s family

In my view, it is necessary to look no further than the evidence which led to the making of the AVO in 2015 to reach the conclusion that the father has subjected the mother to family violence. As noted, the father conceded that one of these telephone messages could be construed as a threat and the mother would have been justified in feeling fearful of him as a result of this behaviour.
Otherwise, each of the mother and father levelled allegations of physical violence and verbal abuse against the other. I am mindful that both parties were users of illicit drugs during their relationship and I consider it likely that their behaviour was adversely affected by these substances. In my view, it is unnecessary that I attempt to make findings in relation to each individual allegation of family violence in order to reach a determination of these proceedings.

Section 60CC(3)(k) if a family violence order applies, or has applied, to X or a member of X’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter

I have referred above in these reasons to the AVO made in 2015.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X

It is open to the father to implement the recommendations of Dr B and then to make a fresh application for parenting orders in relation to X. If the father were to succeed in addressing his drug use and other vulnerabilities, I would not see further litigation as necessarily contrary to X's best interests.

Parental responsibility and conclusion

I have found that the father's ongoing use of illicit drugs would place X at an unacceptable risk of physical or psychological harm in his care. I find that the father failed to present evidence of a workable proposal for supervised time. I am satisfied that the father's reason for supervised time demonstrated a lack of insight into the need to ensure X's safety.
I accept the expert evidence of Dr B, to the effect that protection of the mother's capacity to parent X is a significant consideration in the outcome of these proceedings. I am satisfied that the mother has a genuine belief that the father has subjected X to sexual abuse and that an order for her to spend time with the father would be likely to undermine her parental capacity.
I am satisfied that the father's past conduct has engendered genuine fear in the mother. In this regard, I refer in particular to his admitted behaviour which led to the AVO in 2015. I am satisfied that an order for X to spend time with the father would be likely to undermine the parenting capacity of the mother in this context.
The father has had no role in making decisions in relation to X's care, welfare and development for the past three years. I can see no way in which the parties could now share parental responsibility in any constructive manner. I am satisfied, and I find, that the presumption does not apply and is rebutted by evidence that equal shared parental responsibility would not be in X's best interests.
For all these reasons, I conclude that X should not spend time with the father. Dr B recommended that there be no telephone communication between X and the father at this point but left open that prospect for the future.
Dr B made these recommendations, inter alia:
●That [Mr. Bidwell] not be allowed to see [X] at this time. However, it will be important that he stays "live" for [X] through some form of contact. At present, this might be through letter or email contact that will require a support person to read for [X]. If, through the process of psychological treatment, as outlined below, [X] is able to cope with telephone contact, this should occur. If she is able to cope with this over time and with treatment, [Mr. Bidwell] might be able to progress to having supervised contact with [X] but this will be contingent on her progress in treatment, as well as [Mr. Bidwell's] capacity to address his vulnerabilities through intervention. ...
These recommendations were adopted by the ICL, with the benefit of having heard all of the evidence and submissions.
I appreciate that the father will be most disappointed and distressed at this outcome to the proceedings. It is open to him, however, to accept and implement the recommendations of Dr B as the first step toward a restoration of the relationship between X and himself.
In paragraph 6 above I refer to the injunctive orders sought by the mother pursuant to s 68B of the Act. I consider that these orders are unnecessary because the mother will have sole parental responsibility for X and the father will spend no time with X.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 31 October 2018.

Associate:

Date: 31 October 2018

[2018] FamCA 900

31 October 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Natural Justice

Procedural Fairness

Remedies