Bourman and Huffam

[2018] FamCA 660

FAMILY COURT OF AUSTRALIA

BOURMAN & HUFFAM [2018] FamCA 660

FAMILY LAW – CHILDREN – Parenting – interim – application for change from professionally supervised time to time supervised by family member – allegations of sexual risk – question as to parenting capacity – fact-finding on an interim basis – where risk of exposure to sexual abuse exists – where in child’s best interests to continue supervised time – where no such risk exists for other child.

Family Law Act 1975 (Cth) – s 60CC.

Goode v Goode (2006) 36 Fam LR 422
SS v AH
U v U (2002) 211 CLR 238

APPLICANT: Mr Bourman

RESPONDENT: Ms Huffam

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: CAC 1577 of 2017

DATE DELIVERED: 17 August 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 16 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Andrew Warren Associates

SOLICITOR FOR THE RESPONDENT: Wendy Evans Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

IT IS ORDERED THAT

1. The children, X, born … 2014, and Y, born … 2015, live with the mother.

2. Until further order, X spend supervised time with the father through B Group, C Town, as able to be facilitated by B Group.

3. Y will spend time with the father on the days X has supervised time, commencing at the commencement of X’s time and ending three hours after the end of X’s time.

4. There is no requirement for the father’s time with Y to be supervised.

5. The matter is adjourned to the Registrar’s list to a date to be fixed for restoration in this Court on either application by the parties, transfer by the Registrar or on the Court identifying that trial time has become available to finally dispose of the matter.

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 Bourman & Huffam 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 CANBERRA

FILE NUMBER: CAC1577 of 2017

Mr Bourman

Applicant

And

Ms Huffam

Respondent

REASONS FOR JUDGMENT

1. This is an interim application and response regarding the two children of the relationship, being X who is aged four and Y aged two.  The scope of the dispute is the Father seeks that he spends time with the two children on an unsupervised fortnightly weekend basis. 

2. The circumstances of this application are that there have been orders in place; there has been supervised time for both X and Y; there is currently a Domestic Violence Order in New South Wales regarding X.  Recently, X has recommenced spending time with her Father, having professionally supervised time at B Group on three occasions.  For a considerable period of time now Y has had supervised regular time with his Father. 

3. The critical circumstances are that the parties in this relationship have never lived together but following the ending of their relationship they took steps to transition the time that the Father was spending with the children into overnight time.  That continued until May 2017 when the Mother brought that arrangement to a halt.  She brought that arrangement to a halt at that point because she alleged that there was a risk of sexual abuse posed by the Father. 

4. There were two broad bases that she put forward to substantiate that risk of sexual abuse.  The first was an allegation that there had been odd sexualised behaviour by the Father towards X during the relationship.  That behaviour centred on issues such as how the Father changed X’s nappies, the way that he cleaned her vagina, whether he did that in a closed-door room, that he blew on X's vagina and that he splashed water onto her vagina while she was having a bath. 

5. Those matters were not such that, on their own, they prevented the transition of X to overnight time with the Father.  Those matters were said to have occurred during the time of the relationship and the transitioning to overnight time occurred after the end of the relationship. 

6. The second matter which led to the termination of the unsupervised time between the children and the Father, is that the Mother alleged a series of disclosures made by X, being that the Father had sexually dealt with her.  Those alleged disclosures have been made to the Mother, to JIRT, to DOCS and to X's counsellor.  At their height the allegations involve the allegation that the Father has put his fingers into X’s bottom and vagina, that he has rubbed her vagina, that he has put his penis onto X and in that context has left her belly wet.  The Mother says that in this case there is an unacceptable risk without professional supervision. 

7. The Father disagrees with that position and says that, in fact, there is no risk.  He says that the allegations put forward by the Mother are undermined by inconsistency in her reporting.  In particular, he identifies an alleged inconsistency in the Mother’s reporting of X’s disclosure regarding the putting of his penis onto X and the belly being wet. It is unclear that there is an inconsistency in relation to that reporting at present, but no doubt that will be a matter further explored at final hearing. 

8. The Father also says that the Mother’s position is undermined because she says that he should have a relationship with each of the children.  She has also proposed that the maternal grandparents have time with the children which he says is inconsistent with her account in relation to X saying that the Father had put his penis onto X and left her belly wet.  It is inconsistent with that account because the Mother says that X also said that the paternal grandmother was present when this occurred and simply told the Father ‘no’.  In that context, the Mother’s acceptance of time between the paternal grandparents and X may be seen as inconsistent with the veracity of the claimed disclosure.

9. The Father also says the question of risk is undermined by the report prepared by the Single Expert in this case, Dr D.  He further says that the question of risks is again undermined because of the recent reintroduction of time between himself and X on 7 and 21 July and 4 August, time which he says has gone well. 

10. The Father says there is no rational basis against that background to continue supervision and asserts that, to the contrary, the risk lies with supervision and the potential curtailing of his relationship with the children. 

11. The parties identified a number of pivotal opinions expressed by Dr D.  It should be observed that Dr D’s opinions in this matter have been expressed equivocally in relation to the question of sexual risk, and appeared to centre on the behaviour alleged by the Mother prior to the allegation disclosed.  Dr D expressed alternatives.

12. The first alternative explanation, which Dr D thought was less likely, was that those alleged behaviours meant that the Father is deviant, was grooming X and has been manipulative of the assessment and of the Mother.  The more likely explanation, she thought, was that the Father is a clumsy and unskilled carer with an insecure attachment with X, and that X is picking up on the Mother's distress regarding X’s relationship with the Father.  Less equivocally Dr D observed that in any event, X is resistant and afraid of the Father, although that observation took place before the last three supervised periods had taken place. 

13. The Independent Children’s Lawyer (‘ICL’) raised a further issue.  The ICL advocated a change to daytime periods only, supervised by the paternal grandmother.  She said that the arrangements should be the same for both Y and X because she was concerned that treating the children differently could lead to a hardening view for X that she has been abused by her Father, which could present further difficulties between X and the Father.

14. In determining this matter I am to apply the reasoning process that is set out in the legislation and described by the case of Goode v Goode.[1]I have identified the competing proposals of the parties. During the proceedings I identified to the parties that I am not bound by their proposals,[2] and raised the issue with them as to whether different orders may be appropriate for X and Y.

    [1]Goode v Goode (2006) 36 Fam LR 422

    [2] U v U (2002) 211 CLR 238.

15. The issues in dispute in the case centre on a question of risk to X and to Y and the benefits of relationship with the Father, particularly if the time that he spends with each of the children is unsupervised. 

16. There were a number of uncontroversial or uncontested facts.  The Mother has been the primary carer of the children for their whole lives, which is not a position that is sought to be disturbed in these interim proceedings.  X has had almost no time with her Father, until recently, since May 2017.  Y has only had supervised time with his Father since May 2017.

17. In relation to the s60CC factors of the Act,[3] generally, it was identified to the parties that there are limitations in interim proceedings, as the Court is being asked to deal with untested evidence.  It means that Court must be cautious before making a finding where that evidence is either controversial or controversial and untested.[4]  However, in the face of that the case of SS v AH[5] identifies that, at times “there is little option for the Court but to weigh the probabilities of competing claims and the likely impact on the children in the event a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue here”. 

    [3]Family Law Act 1975 (Cth) s 60CC.

    [4]Goode v Goode (2006) 36 Fam LR 422 at [68].

    [5]

18. Here the key s60CC matters that must be determinative of the application relate to the primary considerations. They relate, firstly, to the question of meaningful relationship.

19. It is uncontroversial that the Father has only limited relationship with X at present.  That is not so strongly the case with Y, given that he has had a more consistent period of time seeing the Father.   Y's interactions with the Father were described positively by Dr D.  There is some evidence of late that there is some limited improvement in relation to X.  There is some evidence of a risk of distress to X in having contact with her Father.  It may be that this risk is ameliorated by the recent visits going reasonably well. 

20. However, if the risk of distress for X and spending time with her Father does come to fruition, what flows from that is a potential backward step in X’s wellbeing and in her relationship with the Father.  If the risk does not come to fruition one could expect some improvement in the relationship between X and her Father in the absence of other factors. 

21. However, this case is not run in the absence of other factors.  The principal contentious matter is the question of risk of sexual abuse; it is both the risk that sexual abuse has occurred and that there are consequences that continue to flow from that and a risk of future sexual abuse.

22. As identified for the Father there may well be significant issues ultimately in the assessment of the cogency of the evidence that is said to point towards him being a sexual risk.  Those matters will need to properly be explored at final trial of the matter.  But, at face value, the basis put forward for the risk as I described earlier, if accepted, and if ultimately unqualified, could lead to the view that X has been both previously sexually abused and is at risk of future abuse. 

23. What flows from that is a risk of X being exposed to the person who has abused her and an exposure to a further risk of abuse occurring.  If those risks come to fruition they are potentially devastating and destructive for X, with terrible long and short-term implications. 

24. The matters that have been raised in relation to potential sexual abuse of X are sufficient to say that there are reasonable grounds available to believe that a party has engaged in family violence.  I note that this is not the same as finding that a party has engaged in family violence, it is merely an objective assessment of the evidence that points to there being reasonable grounds to form that belief.  That is sufficient to render the presumption in favour of equal shared parental responsibility inapplicable. 

25. I would note that no party has sought an order in respect of parental responsibility and no party has addressed the question of parental responsibility.  Absent the presumption and absent submissions on the matter I intend to make no order as to parental responsibility, this being the appropriate disposition of that at this point.  That allows the parties to severally make decisions in relation to the children, but effectively, because the children are living with the Mother, means the decision-making will primarily be in her hands. 

26. I further note in respect of the change in regime proposed for X that Dr D expressed caution about that introduction process with the Father.  Without accepting or rejecting whether or not she is right about that, there is at least a sensible reason advanced for being cautious in the manner of reintroduction.  At present the introduction seems to be functioning reasonably well.  It is a reintroduction that is taking place in the context of professional supervision which may be thought to ameliorate the risks of X’s exposure to the Father and exposure to future risk of sexual abuse.

27. Against the risks that I have identified, there is a question of what benefits X might gain from unsupervised time with her Father.  There is significant uncertainty expressed as to the Father's current parenting capacity, although that may well resolve in his favour at a final hearing.  It is at least controversial that there are issues with his parenting capacity at the moment.  While I was urged to rely upon the paternal grandmother as a means of supervision for X I note that the paternal grandmother has had almost no contact with X in recent times and she is not a professional supervisor. I further note that there is still some controversy about whether or not the paternal grandmother has acted protectively in the past, although the matter raised by the Father undermines that notion significantly.  I stress that this is not a finding that the grandmother has not acted protectively, merely that it would be open on the evidence.  On balance, professional supervision should continue in respect of X both to protect her in case she is being exposed to someone who has abused her and to protect her from any risk of future abuse.

28. As between the two children there are different questions of risk that touch upon X and Y.  There is no suggestion in the material that at any time there has been abuse of Y. 

29. There is an oblique risk question raised that if X has been abused, whether or not that might expose Y to abuse, but that is a matter that seems to be worthy of less weight at this point.  There is also a significant difference in terms of X and Y in terms of the risk attached to the trauma of spending time with the Father. Y and the Father have a positive relationship and enjoy positive interactions.  That is, there is less of a barrier to Y enjoying the benefits of relationship with his Father then there is for X enjoying the benefits of relationship with her Father.  There is less issue of risk for Y. 

30. Under those circumstances it is appropriate that there be a different regime despite the concerns expressed by the ICL.  I accept that there may be the risk that is identified by the ICL, but in this case the best interests of Y dictate that he should receive a different approach, which does not involve professional supervision.  I intend to make orders which will piggyback Y's time off X’s supervised time so that those times overlap.  That is, X and Y share her supervised time but with his time extending after the end of supervision so that he might have the benefits of further time and more freedom in that time with his Father. 

31. There is still some potential risk regarding the Father's attentiveness in looking after Y as seen in the assessment process.  That is not sufficient to significantly depart from the benefits potentially available, even if the benefits are limited as has been suggested by Dr D.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 August 2018.

Associate: 

Date:  30 August 2018