BRUCE & KINSLEY

[2020] FamCA 679

FAMILY COURT OF AUSTRALIA

BRUCE & KINSLEY [2020] FamCA 679

FAMILY LAW – CHILDREN – Application by father to spend time with child – Allegations of alcohol and drug abuse – Allegations of abuse – Whether child at risk in the unsupervised care of the father – Interim Orders made that father spend supervised time with the child for a period of 18 months – Interim orders that parents have equal shared parental responsibility for the child – Interim Orders made in circumstances where mother initially participated in the proceedings and then withdrew

Family Law Act 1975 (Cth) ss 60B and 60CC

J v C in [1969] 1 All E.R. 824
Donnell & Dovey [2010] Fam CAFC 16
Yamada & Cain [2013] FamCAFC 64
Keane & Keane [2020] FamCA 99

APPLICANT: Mr Bruce

RESPONDENT: Ms Kinsley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission Of Tasmania

FILE NUMBER: LNC 336 of 2016

DATE DELIVERED: 12 May 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 12 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tucker

SOLICITOR FOR THE APPLICANT:

Grant Tucker

Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Briffa

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Legal Aid Commission of Tasmania

Orders

UNTIL FURTHER ORDER

1. W born … 2012 (‘the child’) live with Ms Kinsley (‘the mother’).

2. Mr Bruce (‘the father’) and the mother shall have equal shared parental responsibility of the child.

3. The child shall spend time with the father for five (5) hours twice per fortnight, structured either once per week or consecutive days on each alternate weekend, provided such time shall be at a start time and finish time arranged through D Contact Centre (‘the Contact Centre’) and the first date shall be the first date such Contact Centre is open and at times and dates reasonably nominated by the Contact Centre.

4. Each party shall contact the Contact Centre within seven (7) days from the date of these orders or seven (7) days from the Contact Centre, the father or the Independent Children’s Lawyer notifying the mother that the Contact Centre has

   
   

   re-opened and:-

   a.     arrange an appointment for assessment for suitability for supervised time;

   b.     attend the assessment;

   c.     comply with any appointments made by the Contact Centre for supervised time;

   d.     comply with all reasonable rules of the Contact Centre; and

   e.     comply with all reasonable requests and direction of the staff of the Contact Centre.

5. If after the intake procedure the Contact Centre is unable or unwilling to provide handover as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen (14) days written notice to the other party and to the Court. (Liberty to relist the matter to apply twelve (12) months from the date of this order).

6. The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days’ notice to the other party and to the Court (liberty to relist the matter to apply twelve (12) months from the date of this order).

7. If after assessment the parties are accepted by the Contact Centre as suitable for supervised hand over the father is to spend time with the child as set out in this order at times nominated by the Contact Centre.

8. In the event that the Contact Centre offers supervised hand over only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.

9. The father shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre and the vicinity when the time with the child is to end.

10. The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, handover will be spent at times which the services can be provided by the Contact Centre.

11. The parties shall contribute equally to the cost of the Contact Centre.

12. The father shall complete his engagement with mental health, drug and alcohol services and receive therapeutic treatment and he shall be given liberty to relist the matter for the purpose of increasing time with the child, such leave to operate for a period of eighteen (18) months from the date of these orders.

13. Neither party will denigrate the other party or permit the child to remain in the presence of third parties who denigrate the other party.

14. Both parties are restrained from using physical discipline on the child or allowing others to use physical discipline on the child.

15. Each party is restrained from using any illicit substances or being affected by illicit substances whilst the child is in their care or drink alcohol to excess or allow third parties to use such substances or drink alcohol in excess in the presence of the child.

16. The mother shall engage with therapeutic support to assist with her supporting the child’s time with the father.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

18. The proceedings be stood over generally for up to eighteen (18) months from the date of this order.

IT IS NOTED

1. The Independent Children’s Lawyer will remain in place pending further order.

IT IS REQUESTED

1. The solicitor for the father shall cause a sealed copy of this final order to be personally served upon the mother as soon as practicable and shall file an affidavit of service of proof of service of the sealed copy of this order.

2. The Legal Aid Commission of Tasmania shall fund the personal service of this order upon the mother.

IT IS DIRECTED

1. Any contravention application filed in respect of these orders filed within eighteen (18) months of this order is to be filed in the Family Court.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Bruce & Kinsley 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 HOBART

FILE NUMBER: LNC 336 of 2016

Mr Bruce

Applicant

And

Ms Kinsley

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings between Mr Bruce (‘the father’) and Ms Kinsley (‘the mother’), in relation to parenting arrangements for W (‘the child’), born in 2012, who is now aged seven. 

2. The child has not seen the father since 2018, and the father has been seeking orders to spend time with the child.  The mother has resisted those orders in a passive-aggressive way, in that she has not engaged in the proceedings. 

3. The mother has raised issues of violence and issues of abuse of the child, which are set out in the family report prepared by Ms B (‘the family consultant’) and dated 9 October 2019.  Before the Court was that report, which is Exhibit E5.  I have also had before the Court an s 69ZW[1] order response, which is Exhibit E7, and a Magellan response dated 27 March 2017, which is Exhibit E8.  There was concern that the child had been made a disclosure to a social worker, and on 11 February 2020 evidence was taken from that social worker, Ms C. 

   [1] The Family Law Act 1975 (Cth)

4. The disclosure was one which could have referred to a number of people and was one where a question or an answer was sought.  The Court was, of course, concerned that this had been properly investigated.  The evidence of this witness was forwarded to Child Protection Authorities, who took no action, and the Police have taken no action.  I have read and accepted in evidence the, at this stage, unchallenged evidence of the father contained in his Affidavit of 21 March 2019 and his Amended Application filed 6 October 2017. 

5. I have read and considered the evidence of the mother contained in her affidavit filed 22 March 2019, the Notice of Risk filed the same day and the Response to the Application for final orders at a time when she was represented and engaged in these proceedings. 

6. An Independent Children’s Lawyer was appointed, and he has been engaged in this matter and has prepared a case outline.  The mother has been asked to become engaged in these proceedings and for the whole of 2020, and she has declined to do so. 

7. A letter was sent to the mother on 5 May, which is Exhibit E2, and another was sent on 7 May, which is Exhibit E3.  The mother has not engaged, nor has she enabled the child to be engaged, in the proceedings.  She did, however, engage with the family consultant.

THE LAW

1. The provisions of the Act that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (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; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) 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; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act.  It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’.  The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence.  The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)      to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child 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 the child), with whom he or she has been living;

   (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 the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child'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;

   (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 the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. The House of Lords in J v C in [1969] 1 All E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[2]

   3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases.  The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240

   4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance.  For all I know that may have been true in some cases containing dicta to that effect.  But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change.  I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion.  But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.

   [2] Page 824.

2. These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.

3. The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’.  Their Honours went on to reject that argument.  The basis for that rejection was set out from paragraph 19 onwards.

1. The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest.  Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say.  The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-

   25.    In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents]  does not give rise to any difficulty in ensuring all relevant matters are taken into account.  In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight. 

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.  For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75]. 

   (Bold emphasis added).

   26.    Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:

   It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …

   and more broadly, at [75]:

   While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …

2. The Full Court in Yamada & Cain (supra) went on to conclude:-

   27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

3. McEvoy J elegantly set out the law regarding principles in parenting proceedings involving allegations of abuse in Keane & Keane [2020] FamCA 99 where his Honour said:-

   Principles in Parenting Proceedings Involving Allegations of Abuse

   63.The central duty of the Court in parenting cases – which is to make orders in the best interests of the relevant child or children – and the mandatory process by which that duty is to be undertaken, does not change because allegations of abuse are made. 

   64.As the High Court observed in M v M (1988) 166 CLR 69 at 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.

   65.How a trial judge is to assess disputed allegations of sexual and other abuse is a question which has occupied much judicial and academic attention. Frequently it will not be possible to resolve with certainty whether particular allegations of abuse are made out. That this is so is unremarkable in the present context and was the subject of specific attention by the High Court in M v M (at 76) in a much cited passage:

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.

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

   (Citations omitted)

   66.Where one parent alleges that the other has engaged in the sexual abuse of a child it is for the Court to make an assessment of the relevant facts and conduct the fact finding exercise by reference to the civil standards of proof. Again, as the High Court said in M v M (at 76-77):

   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. There Dixon J. said:

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

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   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. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   (Citations omitted)

   67.In Fitzwater & Fitzwater [2019] FamCAFC 251, at [13]-[15] Strickland and Aldridge JJ referred to parts of this passage, and noted the observations of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 at 82,713-82,714, approved by the Full Court in Napier v Hepburn (2006) FLC 93-303 at 81,115 and Johnson and Page (2007) FLC 93-344 at 81, 888-81,889, that:

   … 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.

   68.How the Court is to go about assessing whether there is an unacceptable risk of sexual abuse or risk of harm to the child involves, on the one hand, making findings of basal facts on the evidence before the Court and, on the other, using such facts as part of the predictive exercise in making findings about the possibility of the wider issue, that is any risk of harm posed to the relevant child or children which inform the parenting orders needed to resolve the dispute.  The basal facts found, assessed in the light of all other relevant matters, form the factual substratum for an assessment of the unacceptability or otherwise of the risk. 

   69.The fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act 1995. Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362 and referred to in M v M as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.

   70.As Austin J observed in Fitzwater & Fitzwater, the conclusion reached by the Court in proceedings under Part VII of the Act, as reflected in whatever decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence.  Critically, however, and as his Honour noted, the law draws a distinction between proof of historical facts and the prediction of future possibilities. Drawing on what the High Court said in Malec v J.C. Hutton (1990) 169 CLR 638 at 639 – 640 and at 643 (“Malec”), Austin J noted that in determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.

   71.In Malec, Brennan and Dawson JJ said (at 639 - 640):

   … facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities… the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history… the court must form an estimate of the likelihood that the possibility will occur…

   …

   …To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…

   72.In Fitzwater & Fitzwater, Austin J noted that although the High Court in Malec was referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction: see Oswald v Karrington (2016) FLC 93 – 726 at [60] and Bant & Clayton (2015) 54 FamLR 621 at [99], [107], [171] and [172]. His Honour considered, and I respectfully agree, that such application of principle is consistent with the principles essayed by the High Court in M v M.

   73.Austin J’s analysis of the nature of the task confronting a trial judge of this Court when considering whether to make a parenting order in favour of a parent who is alleged to represent an unacceptable risk is, with respect, compelling and of considerable practical assistance. His Honour observed:

   138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.

   139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm.  At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

   140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).

   141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject  child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.

   142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

   74.Although in Fitzwater & Fitzwater the majority expresses disagreement with Austin J on the proposition that s 140 of the Evidence Act has no role to play in a case where unacceptable risk of harm is alleged, their difference with his Honour on this point may be more imagined than real. Austin J does not contend that s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged. His Honour’s point, consistently with M v M and Malec, is rather that the assessment of risk is predictive. While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, consistently with settled principle, have been the subject of findings on the basis of s 140 of the Evidence Act.

   75.As the Full Court said in Napier v Hepburn (2006) FLC 93-303, at [82]:

   …But the future likelihood of that event occurring needs to be evaluated not only in terms of the cogency of the evidence that it has occurred in the past, but also in the context of the father’s denials and the vigilance of the parties, given the events that have led them to litigate over these issues so early in the child’s life. What potential there was for these events to continue to occur if they have previously occurred in the past might well be diminished by the bright lights that have been shone upon the parties and their conduct in the course of these proceedings.

   76.As the majority in Fitzwater & Fitzwater makes plain in relation to s 140(2) of the Evidence Act, the nature of the cause of action and the gravity of the allegations are relevant to the degree of satisfaction that the Court must hold to accept the proffered case.  Thus, their Honours observe, the nature of the allegations of the alleged sexual abuse are relevant to a finding (that is the future projection) that there was a possibility of such abuse.

   77.The process of evaluating whatever allegations are made must be conducted vigorously, and the termination of a relationship between the child and the allegedly abusive parent ought generally be the course of last resort. As the Full Court observed in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, at 79,217-8 (Kay, Holden and O’Ryan JJ):

   Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

   The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times…

   The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.

   78.Having regard to these principles it is necessary to assess the relevant facts – here the allegations of psychological, physical and sexual abuse of the mother and the child made by the mother, and the father’s denials – and to conduct the fact finding exercise by reference to the civil standards of proof. If the father’s denials are to be rejected, there must be reasons given for doing so.  The assessment of whether there is an unacceptable risk of abuse involves making findings in relation to the allegations which are made and then, on the basis of those findings and giving due attention to all other relevant matters, making a prediction about the level of risk of harm posed to the child in the future. A decision about what is in the best interests of the child can then be made, having regard to the magnitude of the risk and the various matters required to be considered by Part VII of the Act.

1. I will endeavour to apply the principles of law to the facts.

2. I have had the benefit of the Independent Children’s Lawyer submitting that the orders to be made reflect those suggested by the family consultant.  I have read the evidence in relation to the allegations of risk for this child in the care of the father.  Given the nature of those allegations and the comments in relation to those by the family consultant and all of the other evidence to which I have been informed of, I am satisfied, on balance, that there is no reason why the child cannot spend unsupervised time with the father.

3. However, the changeover needs to be properly managed, and, accordingly, we will have to wait until the D Contact Centre reopens.  This will ensure that there can be professional handovers and professional returns to enable the reintroduction of this child to the father in a child-sensitive and child-focused manner.  The child is not to be treated as a piece of property to be handed by one parent to another.  The child’s feelings and concerns must be addressed, and, on the evidence of the family consultant, that is the best way to address those. 

4. Each of the parties have been struggling with social demonstrates with respect to drug and alcohol abuse and with respect to dealing with the serious business of parenting.  The Independent Children’s Lawyer says that this matter should be dealt with by way of an interim order to enable the father to complete his engagement with mental health, drug and alcohol services and receive therapeutic treatment, given the circumstances, which is carefully analysed by the family consultant.  For the protection of the child, I will not be making further orders until such time as the father has done so, and I have directed him to do so in these orders. 

5. The mother, on the other hand, has, as I said at the start, simply walked away from these proceedings and buried her head in the sand in the hope that it would go away.  It will not, and this child is, in all of the circumstances, entitled to know her father and have a relationship with her father provided it is safe.  Accordingly, I will be directing the mother to engage in therapeutic support to assist her in supporting the child develop a relationship with the father.  I have not, but I will make orders that a sealed copy of this order be served upon the mother as soon as practicable so that she can understand that she is obliged to comply with these orders. 

6. This is not a matter of option.  It is not a matter of, “Well, I will this day.  I will not the next day,” and I ask that the Independent Children’s Lawyer write to the mother, once the order has been served, and make it abundantly clear that if she does not comply with this order, then the Court will look at what other alternatives it may consider in terms of contravention and other matters.  I am satisfied, given the evidence before me, that these orders will meet the current needs of this child.  I will stand the matter over generally for it to be relisted, but in 18 months’ time, so that if the matter does not proceed to the arrangements that I have put in place, it can be dealt with by way of enforcement and perhaps further orders, firstly, or, secondly, if the mother does comply, to developing the child’s relationship to a more traditional sense than a bare five hours twice a fortnight.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 May 2020.

Associate: 

Date:  16 June 2020