Carlyon & Graham

Case [2022] FedCFamC1F 228

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Carlyon & Graham [2022] FedCFamC1F 228

File number(s):

SYC 6554 of 2019

Judgment of:

CAMPTON J

Date of judgment:

8 April 2022

Catchwords:

FAMILY LAW – CHILDREN – Unacceptable risk of sexual and emotional harm – Where the mother alleges the father has sexually interfered with the child – Where the father specifically denies ever behaving in a sexually inappropriate way with the child – Where the mother does not present sufficient evidentiary foundation for her beliefs – Where it is found that the father does not pose an unacceptable risk of harm to the child – Where it is found that the mother poses an unacceptable risk of emotional and psychological harm to the child.

Legislation:

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, s 60B

Cases cited:

B & B (1993) FLC 92-357

Blann & Kenny [2021] FamCAFC 161

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Deiter & Deiter [2011] FamCAFC 82

G & C [2006] FamCA 994

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9

Langmeil & Grange (2010) FLC 93-427; [2010] FamCAFC 12

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski & Albright (2007) Fam LR 518; [2008] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Napier & Hepburn (2006) FLC 93-303 [2006] FamCA 1316

Stott & Holgar and Anor [2017] FamCAFC 152

Number of paragraphs:

379

Date of hearing:

15 March 2022

Place:

Sydney

Counsel for the Applicant:

Mr MacPherson

Solicitor for the Applicant:

Bridges Lawyers

Counsel for the Respondent:

Mr Schroder

Solicitor for the Respondent:

Metta Legal

Counsel for the Independent Children’s Lawyer:

Ms Carr

Solicitor for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

SYC 6554 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CARLYON
Applicant
AND:

MS GRAHAM
Respondent
AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 APRIL 2022

THE COURT ORDERS THAT:

1.All previous parenting orders in relation to the child, X, born 2013 are discharged.

Parental Responsibility

2.The father shall have sole parental responsibility for X, subject to the following:

(a)In the event the father intends to make a decision in accordance with this Order, the father shall advise the mother as soon as practicable of the decision and invite and consider the mother’s views and input in relation to the decision;

(b)The father shall advise the mother of the outcome of his decision within seven (7) days of making the decision.

Living Arrangements

3.X shall live with the father from the date of these orders.

Moratorium of Time with the Mother

4.From the date of these orders for a period of three consecutive months, X shall have no time or contact with the mother and during this period the mother is restrained from:

(a)Contacting X, including by way of…

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AGLC
Carlyon & Graham [2022] FedCFamC1F 228
Case
[2022] FedCFamC1F 228
Decision Date

CaseChat Overview and Summary

The case of Carlyon & Graham involved a dispute between the father and the mother regarding the care arrangements for their son, X. The father contested the mother’s allegations that he had sexually abused X and exposed him to an unacceptable risk. The mother, in turn, claimed that the father had committed family violence against her, including emotional and psychological abuse. The Independent Children’s Lawyer (ICL) also participated in the proceedings, providing recommendations for X’s care.

The court was required to determine whether the father had sexually abused X, and if so, whether this constituted an unacceptable risk to X. Additionally, the court had to assess the mother’s allegations of family violence and decide on the appropriate parenting orders for X, considering his best interests.

In reaching its decision, the court considered the evidence presented, including expert reports and affidavits from both parties. The court found that it was not satisfied to the requisite standard that the father had sexually abused X, based on various factors such as the mother’s unsubstantiated allegations and her tendency to draw conclusions from unrelated pieces of evidence. The court also concluded that the father did not pose an unacceptable risk to X arising from sexual abuse. Regarding the mother’s allegations of family violence, the court found that the evidence was insufficient to support a finding of family violence by the father.

According to s 65D of the Act, the court was required to make parenting orders that were considered proper. Under s 60CA, the court must regard the best interests of the child as the paramount consideration. The primary considerations under s 60CC(2) include the benefit to X of having a meaningful relationship with both parents and the need to protect X from harm. The court found that it needed to give greater weight to the need to protect X from harm than to the benefit of a meaningful relationship with both parents.

The court ultimately decided that it was in X’s best interest to live with the father, with supervised visits to the mother for a period of six months before transitioning to unsupervised visits. The father was granted sole parental responsibility for X.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr H in his oral evidence said that the options confronting the Court in respect of X’s care arrangements are “so black and so white, it is uncomfortable...”, and that he saw them as “all being really horrible options”.BACKGROUND The father was born in 1964 and is 57 years of age. The mother was born in 1970 and is 52 years of age. The parties met in May 2008 and engaged in a casual relationship shortly thereafter. Initially the father was living in Sydney and the mother was living in NN Town. There is some dispute, which is not material to these proceedings, as to when the parties commenced a relationship. X was born in 2013. The parties began living together in rented accommodation immediately after his birth. The maternal grandmother, Ms M, was born in 1948 and is now 74 years of age (“the maternal grandmother”). She lived with the parties for periods during their relationship, including for twelve months in 2014 and some months in 2018. A child of the mother’s prior relationship was born in 1999 (“Mr Y”). He is now 23 years of age. His father is Mr P (“Mr P”). Proceedings between the mother and her former partner as to the parenting of Mr Y commenced in the Brisbane Registry of the Family Court in 2001. On 28 May 2002 Mr Y’s access to his father was suspended by way of order made in the Family Court in Brisbane. Allegations were made as to Mr Y exhibiting sexualised behaviour. Mr Y was reported to have told his mother that his father hurt his bottom. The mother noted that X’s anus was red. A medical investigation at the time found no conclusive evidence of sexual abuse. A further medical investigation concluded that Mr Y had suffered from a haemorrhoid. As part of the proceedings, on 26 June 2003, Mr Y disclosed to this mother that his father had kissed him on the bottom and on his penis. Mr Y was told to keep this game a secret. The allegations of abuse were investigated and not substantiated. In 2004 final orders were made for Mr Y to reside with Mr P. The mother appealed that decision. The appeal was upheld. The matter was reheard in November 2005. Further final orders were made that Mr Y reside with Mr P who would have sole parental responsibility for his care, welfare and development and for Mr Y to spend time with his mother each alternate weekend and half school holidays. Mr H recorded that there were seven family reports completed by family consultants in Brisbane between May 2003 and June of 2013, and that Mr Y had been the subject of a number of child protection notifications. Further proceedings as to the parenting of Mr Y were initiated in 2011. In January 2012 the mother retained Mr Y after he allegedly said he wanted to live with her. An order was made that Mr Y return to live with Mr P and spend time with his mother in accordance with the final orders of 2005. Two further expert family reports were obtained, each recommending that Mr Y continue to live with Mr P in Queensland. An order was made on 26 February 2014 to that effect, and providing for Mr P to have sole long-term parental responsibility for Mr Y.

Evidence

Evidence Before The Court

Accordingly, it is in the best interest of X to live with the father. I propose that after a moratorium of three months X spend supervised time with the mother for six months before commencing unsupervised time. The father will have sole parental responsibility for X.EVIDENCE The father relies on the following documents:(a)Further Amended Initiating Application, filed on 1 February 2022;(b)Affidavit of Mr Carlyon, filed on 21 February 2022; (c)Affidavit of Ms K filed 21 February 2022;(d)Case Outline, filed on 7 March 2022 and marked Exhibit F1; and(e)Amended Minute of Order, dated 18 March 2022, and marked Exhibit F4. The mother relies on the following documents:(a)Amended Response to Initiating Application, filed on 7 February 2022;(b)Affidavit of Ms Graham, filed on 21 February 2022;(c)Affidavit of Mr L, filed on 21 February 2022;(d)Affidavit of Ms M, filed on 21 February 2022;(e)Affidavit and Report of Dr N, dated 3 March 2022; and(f)Case Outline and Minute of Final Orders filed 7 March 2022 and marked Exhibit M1. The ICLrelies on the following documents:(a)Case Outline filed on 11 March 2022 and marked Exhibit ICL 1; (b)Joint Tender Bundle marked Exhibit ICL 2; (c)Minute of Order dated 18 March 2022 and marked Exhibit ICL7. There have been four expert reports prepared in this matter. The first was undertaken by the single parenting expert, Mr H (“Mr H”). It was dated 10 December 2020 and marked as Exhibit CRT-1 (“the family report”). It is the substantive report relied on for the purpose of the proceedings. Mr H prepared an addendum report dated 11 January 2021, which was marked Exhibit CRT 2 (“the addendum report”). The third report was produced by Ms O, a clinic psychologist, on 8 June 2021 (“Ms O’s report”). It was marked as Exhibit CRT-3. Ms O’s report was produced subsequent to consent orders made on 28 April 2021 for the purpose of establishing whether this family would benefit from family therapy. A final report was produced by Dr N on 3 March 2022 (“the psychiatric report”). It was annexed to an affidavit by Dr N filed on 7 March 2022, and was produced pursuant to consent orders made on 10 February 2022 for the purpose of assessing the mental and psychiatric state of the mother. THE POLARISED PARENTING DISPUTE The parents and the ICL defined the parameters of the parenting dispute at trial around the allegations of sexual abuse and family violence exposing X to an unacceptable risk. The family report writer identified the challenging dichotomies when allegations of sexual abuse are made, being the risk of denying a parent falsely accused of sexual abuse of a relationship with a child and the associated social and emotional stigma attaching to false allegations, with the risk of returning or placing a child in the care of a parent who has sexually abused them thereby exposing them to ongoing, long term deleterious effects of that abuse. Mr H identified:114.The challenge in relation to this dispute relates to the binary nature of the conflict. [The mother] believes that [X] has been sexually abused and consequently, should have no contact with his father. [the father] categorically denies the allegations of abuse, and suggests that the allegations reflect a historical pattern. He draws attention to the obvious difficulties associated with [the mother’s] older son [Mr Y], and him having sexually abused his [relatives], [the mother’s] alleged level of denial in relation to the seriousness of [Mr Y's] behaviour and yet, the gratuitous associations made by her that culminate in the spurious claims directed at him.

Decision

Reasons for decision

I note that the mother reported to Mr H that this incident occurred on 9 February 2019, being before the charge against the father was withdrawn. The maternal grandmother also places the incident in her affidavit as occurring on 8 and 9 February 2019.Conclusion as to sexual abuse Having regard to all of the foregoing matters which to me indicate the challenges in accepting X’s disclosures as probative of sexual abuse by the father, I am not satisfied to the requisite standard that the father sexual abused X as alleged by the mother on any occasions. My preference as to the father’s denial of the event is supported by the further findings in these reasons as to the mother being reckless in making serious allegations absent supporting evidence, such as the father occasioning a cigarette burn to X, and the mother’s propensity to draw conclusions from disparate pieces of evidence which do not appear on their face to logically connect. The mother, in arriving at her conclusion that the father has definitely occasioned sexual abuse on X, relies on “loose associations, gratuitous assumptions, overvalued beliefs, and the false construction of loose connections in order to formulate her beliefs” (family report, page 54). That finding finds support in the mother’s unsubstantiated contentions as to the father’s surveillance and her exchange with an unknown person at a motel. Does the father pose an unacceptable risk to harm arising from sexual abuse? As was observed in Napier & Hepburn (2006) FLC 93-303, in order to reach a conclusion that a child is at unacceptable risk of harm where allegations are made of sexual abuse (and a trial judge is not satisfied that that abuse occurred) “the trial judge need[s] to evaluate not only the seriousness of the behaviour if it occurs, that is that the behaviour would be unacceptable, but also the risk that the behaviour is likely to occur”. It is beyond doubt that if the father touched X as alleged by the mother or penetrated his anus for sexual gratification, such conduct would be extremely detrimental to the child. Both parties and the ICL conducted the trial on the basis that the only matter that could support a finding of unacceptable risk is the allegation the father had sexual abused X in the past. In the circumstances of these proceedings, where both parties and the ICL clearly based the question of future risk of abuse or past behaviour, I am also satisfied that the father does not pose an unacceptable risk arising from sexual abuse.The Mother’s allegations of family violence It is the mother’s case that the father perpetrated family violence against her including by way of emotional and psychological abuse. She seeks a specific findings to this effect. In her affidavit, the mother deposes to a range of broad ranging but non-specific allegations of family violence. A significant complaint on the mother’s part was that the father by his actions and open disapproval of them, isolated the mother from her family, including her sister.

Ratio Decidendi

Legal Principle Established

Section 65D of the Act compels the Court to make such parenting orders that are considered proper. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration. Best interests considerations Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child's best interests. The primary considerations (under s 60CC(2)) are:-(a)The benefit to X of having a meaningful relationship with both of X’s parents; and(b)The need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am required to give greater weight to the need to protect X from harm than to the benefit to X of having a meaningful relationship with both parents. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) has approved the interpretation of the phrase by Brown J in Mazorski & Albright (2007) Fam LR 518 (“Mazorski & Albright”) and has also agreed with the reasoning of Bennett J in G & C [2006] FamCA 994 (“G & C”). Brown J in Mazorski & Albright said at [26], after setting out the definition of “meaningful” and “meaning”:What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. The word “meaningful” is qualitative rather than quantitative and the phrase has not been interpreted as requiring the Court to craft orders to support an optimal relationship.[1] Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.[1] Godfrey & Sanders [2007] FamCA 102 at 36 The Full Court said in McCall & Clark at [117]:Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic). The Full Court in McCall & Clark continued at [122]:No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. Bennett J discussed the terminology in G & C and said “the enquiry was a ‘prospective’ one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”