Cordis & Suvas

[2021] FCCA 2197

FEDERAL CIRCUIT COURT OF AUSTRALIA

Cordis & Suvas [2021] FCCA 2197

File number(s):

ADC 598 of 2021

Judgment of:

JUDGE BROWN

Date of judgment:

9 April 2021

Catchwords:

FAMILY LAW – interim parenting arrangements for child aged almost three years – shared care – allegations of family violence – allegations of sexual abuse – nature of interim hearing – assessment of risk – presumptions of equal shared parental responsibility – best interests – matters to be considered.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60CC, 61DA, 67Z

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) 36 Fam LR 422

W & W (abuse allegations; unacceptable risk) (2005) 34 Fam LR 129

Number of paragraphs:

99

Date of hearing:

7 April 2021

Place:

Adelaide

Counsel for the Applicant:

Mr Heinrich then Mr Praolini

Solicitor for the Applicant:

Mildwaters Lawyers

Counsel for the Respondent:

Mr Brown

Solicitor for the Respondent:

James Brown & Associates

ORDERS

ADC 598 of 2021

BETWEEN:

MS CORDIS

Applicant

AND:

MR SUVAS

Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	9 APRIL 2021

THE COURT ORDERS THAT:

1.The respondent de facto husband file a statement of his financial circumstances no later than 23 April 2021.

2.The applicant de facto wife file an amended application detailing the orders sought by her in respect of the settlement of de facto property issues together with a statement of her financial circumstances and an affidavit in support of such an amended application no later than 21 May 2021.

3.The parties exchange mutual informal discovery of all relevant financial documents as delineated in Rule 24.03 of the Federal Circuit Court Rules on or before 28 May 2021.

4.Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 28 April 2021 at 9:30am, to discuss the care, welfare and development of the child X born in 2018 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry to confirm their attendance.

UNTIL FURTHER OR OTHER ORDER

5.The child of the relationship X born in 2018 live with the mother.

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

(a)on each Sunday, commencing 11 April 2021, between 10:00am and 4:30pm; and

(b)each Friday, commencing 16 April 2021, from 2:30pm until 5:30pm.

7.To give effect to these orders the child is to be exchanged between the parties at the Town B Police Station or if the child is attending day care or kindergarten on Wednesdays, the child is to be collected from such day care or kindergarten.

8.The parties be restrained and an injunction issues restraining each of them from:

(a)denigrating, abusing the other in the presence of the child or permitting any other person so to do; and

(b)from using illicit drugs or consuming alcohol whilst the child is in their care or 24 hours prior.

9.Further consideration of the matter is adjourned to 24 May 2021 at 9.30am for directions. NOTING that the parties are to dial in to the court on ….

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE)

JUDGE BROWN:

INTRODUCTION

1. These reasons for judgment relate to interim parenting arrangements for one child.  She is X who was born in 2018.  The parties to the proceedings are X’s parents - her mother, Ms Cordis, and her father, Mr Suvas. 

2. These reasons are being delivered orally.  The case came before me in a duty list last Wednesday, and due to the pressure of other business, I was not in a position to deliver the judgment then.  In addition, I wanted to consider the complex issues which the case presented. 

3. It will, regrettably, take me some time to deliver these reasons, and I regret the burden this will place on the parties and their legal representatives. However, there just simply has not been sufficient time to have them reduced to writing.

   BACKGROUND

4. Ms Cordis and Mr Suvas, to whom I will refer as “the mother” and “the father” respectively in these reasons for judgment, began a relationship together in 2017, and finally separated in June 2020.  They have never been married.  X is their only child. 

5. The mother was born in 1979.  The father was born in 1989.  The mother has been previously married.  Her first husband is deceased.  The mother has three other children from this marriage.  They are Ms C, aged 19, D, aged 15, and E, aged nine.  Ms C lives independently.  D and E live with the mother, currently. 

6. At the present time, the mother, X, D and E live in a house owned by the mother in Town F.  The father lives in a rented unit relatively close by in Town G.  The parties operate a business in Town G. 

7. In addition, the mother works in Town H, on a part-time basis, earning around $35,000.00 per annum.  The father works as a tradesperson in Town G, earning around $55,000.00 per annum.

8. Due to the parties’ separation, child support issues arose in respect of X.  As it is well known, child support is calculated by two main considerations.  Firstly, the taxable income of the parent’s concerned, and secondly, the extent of care provided by the parents in respect of any child concerned. 

9. The mother commenced these proceedings on 8 February 2021, some months after the parties’ separated.  Prior to this time, due to the then care arrangements for X, the Child Support Agency assessed the mother as liable to child support for X to the father.

10. The parties, as required by the provisions of section 60I of the Family Law Act 1975 (Cth) (“the Act”), have not undergone any compulsory family dispute resolution prior to the mother’s application to the court. The mother asserts that this requirement should be dispensed with because of significant issues of child abuse and family violence. The father refutes these allegations and asserts that it is likely to be helpful for the parties to undergo some form of family dispute resolution.

11. It is common ground that between 5 June 2020 and mid-January of 2021, the parties shared the care of X on an essentially equal temporal basis, which resulted in the aforementioned child support assessment.

12. Section 67Z of the Act requires a party in proceedings relating to a child to file a document entitled “Notice of Risk”, which is designed for that party to set out details of any abuse or neglect, including exposure to family violence, which it is alleged that the child concerned has been exposed to, or is at risk of being exposed to. The notice also mandates that details of any action taken also be provided.

13. The mother has filed such a notice alleging the father has exposed X to abuse, but it has not been reported to the authorities because – and this is from her notice at page 3 – the reason was that, “I didn’t want to make the father angry as I kept telling myself that things would get better.”

14. She has also alleged the father has exposed her to family violence which has been reported to police, but she has answered, when asked to provide details of when a report was made, as follows:

    I can’t remember, as it was a telephone call only.  Although I could try and find a record of any call on my mobile, if required.

15. The father has filed his own Notice of Risk, alleging X is at risk of abuse from the mother and E.  Essentially, he alleges that the mother has a history of mental health difficulties which she shares with Ms C, D and E. 

16. In his Notice of Risk – and this is at page 11 – the father asserts as follows:

    The mother has a history of mental health difficulties that have – that has passed on to her three older children to varying degrees.  It is not known the extent to which the mother has resolved her long-standing personality issues through her treating health practitioners in the past.  In particular, the mother has controlling tendencies.

17. In respect of what action has been taken in respect of these allegations, the father has said:

    I don’t know whether the mother has any insight into her own personality issues or received any professional help in dealing with them.

18. It is my understanding that the father himself has no mental health qualifications, or medical specialties, and as will become clearer as these reasons unfold, neither party has provided any medical evidence or any reports from any general practitioners or psychologists whom they have consulted. 

19. In this context, when asked about the alleged harm or risk to X because of the asserted mental health issues of Ms Cordis, the father has left page 8 of the Notice of Risk blank.  In addition, as I have previously indicated, the father alleges that X is at risk of sexual abuse because of E.  In this context, it must be borne in mind that E is currently aged nine.  And it seems to be the case that the incident it complained of occurred when E was seven.

20. The allegation is that E indecently assaulted X by coercing her to masturbate him and “put his willy in her mouth”.  It is further alleged that the mother has previously left E unsupervised with his older cousin, J, who influenced him to engage in sexualised behaviours. 

21. I am aware that E has acted out sexually with at least two boys in addition to X.  In respect of the action taken, in regard to these matters, the father asserts that the mother has promised that X will not be left alone in a room with E, with the doors shut, and they will not be allowed to be under the blankets together.

22. X has not spent any time with the father since January 2021.  Prior to that time, the father had X in his care for 67 days.  Since separation, X has spent 163 days in her mother’s care.  These very specific figures come from the mother’s affidavit. 

23. The mother’s position is that she agreed to the initial shared care regime only because of the duress the father placed her under, in that he made threats that he would take X away from her.  Ms Cordis further alleges that Mr Suvas is a drug user and a trafficker in drugs, has subjected her, D and E to assaults, suffers from mood swings, and is otherwise psychologically unstable and has subjected her to coercion and control, and at times, has stalked her.

24. In these circumstances, the mother opposes the father spending any time with X whatsoever, until – to utilise her terminology – “[Mr Suvas] has conquered his problems with abusive behaviours and drug addictions.” 

25. In order to arrive at this outcome, the mother seeks that the court make orders for Mr Suvas to undergo the following: 

    ·A hair follicle test, which will reveal possibly any traces of illicit drugs in the creatine deposited in the hair follicle,

    ·A form of anger management training with two practitioners nominated by her, who practice in Adelaide, and

    ·He have a psychiatric examination to determine whether he can be diagnosed with a condition under the Diagnostic and Statistical Manual of Mental Disorders (“the DSM”).  The fifth edition of the DSM is the most current version.

26. She also wishes to be conferred with sole parental responsibility for X.  Accordingly, at the present time the parties have diametrically opposing views about practically everything arising in the case.

27. The father denies threatening to abduct X from the mother.  He denies assaulting E and D. He denies checking the mother’s phone or monitoring her movements.  He denies stalking her.  The father has deposed that he occasionally uses marijuana.  He denies any other illicit drug use or trafficking drugs. 

28. In contrast to the mother, it is the father’s case that it is the mother who is manipulative and disingenuous.  In this context, he asserts that the mother has manufactured claims of family violence to achieve some form of personal advantage over him in this case.  In this context, Mr Suvas has deposed as follows:

    The applicant perceives herself as an abusive victim but is herself quite controlling.  She is 10 years my senior, and it has always seemed she was most comfortable when was dominant in a situation.  There are many instances where the applicant has made unilateral decisions and expected me to simply comply without genuinely making effort to reach a fair and reasonable compromise.  I am unsure of the extent to which the applicant has resolved her long-standing personality issues through her treating health practitioner in the past.  The applicant’s treating doctor should at least identify the causes, any diagnosis and desirable treatments to enable to the applicant to manage these conditions successfully, whilst continuing to raise [X].

29. In these circumstances, the father seeks an immediate return to the equal time regime which existed post separation.  The father filed his response to the mother’s application on 10 March 2021.  In addition, he has raised issues to do with the settlement of de facto property.  However, at this juncture, he has not deposed, in any detail, what orders he seeks other than the orders should be just and equitable.

30. Clearly, it is hard to conceive of the situation in which the positions of the parties concerned are not more polarised or extreme.  It is in this context that issues of the alleged abusive behaviour of X by E when the latter was seven years of age loom large. 

31. The mother’s position is that the alleged abuser was not E, but another slightly older child, and did not involve X directly.  The father’s position is that the parties agreed prior to separation that E and X would never be left alone together because of what E had allegedly learnt from the older child concerned.

32. The father alleges that the mother and he agreed that X and E were never to be in the same room with the door shut.  However, he asserts that the mother neither enforces this stricture or supervises X and E properly. 

33. The father asserts that since separation X has, from time to time, tried to tell him what E has been doing to her and has pointed at her vagina when showering and said, “That’s no one else’s.  That’s [X’s].”  Accordingly, it is the father’s position that, “[X] is at risk if left in the mother’s care because of [E].”

34. For her part, the mother asserts that the father has utilised this controversy to exert influence over her in respect of X.  It is her case that she has, “always known that the father was not an appropriate person to be caring for [X] after we’d separated because of his drug use and his other abusive behaviours.” 

35. However, she asserts that she, “allowed [Mr Suvas] to spend time with [X]” because she was frightened that, “[Mr Suvas] would take her away from me and that I would not get to see her at all.”  This is because Mr Suvas threatened to, “report my son, [E] for sexual abuse of [X]” and he told me that when he did, “the authorities would take [X] from me to prevent [E] from hurting [X].”

36. Another factor behind the mother’s decision to withhold X from the father is that the mother asserts that, “in the last three months or so, [X] has started to cry and say, ‘I don’t want to go’” when she is driving towards the father’s household. 

37. In this context, she asserts that she, “is concerned that something has suddenly started” which has caused X to be reluctant to go to her father and she conjectures that, “something emotionally or psychologically damaging must have happened to [X] when she has been in [Mr Suvas]’s care.”  However, she is not in a position to assert what that is, and at this juncture, there is no independent assessment of the child.

38. As I indicated, the case came before me in a relatively busy duty list.  Due to the pandemic restrictions the parties and their respective counsel attended the hearing by telephone.  From memory, the mother did not attend.  I am not sure why that was the case. 

39. I was somewhat reluctant to deal with the matter on the telephone, however, from each parties’ perspective, the nature of the situation was urgent and required my urgent attention – so I dealt with the matter.

40. At the end of the hearing I thought it was appropriate that I direct Mr Suvas to have a random drug screen test via an analysis of his urine later that day.  He has done that test.  The report has been provided to me and it is negative. 

41. I appreciate that it is an isolated test.  I also appreciate that people who regularly use drugs are well versed in how to get around drug screen tests.  But there was no forewarning of the test.  It was promptly attended to.  It is negative.  That, in my view, must have some prohibitive value.

    THE LEGAL PRINCIPLES APPLICABLE

42. It is now necessary for me to outline as best I can the principles that are applicable to a hearing of this kind.  These proceedings arise at an interim stage.  As I indicated, they arise at a point of emergency and crisis in this family.  When everyone is very upset, positions are polarised.  There has been no attempt at mediation or to find some agreed way forward. 

43. The evidence necessarily is in truncated form.  Probably it has been fairly hastily prepared.  At this early stage, there is no opportunity for cross-examination of deponents.  As a consequence the very many controversies arising from the parties’ conflicting affidavit material cannot be resolved at this stage because of the restrictive nature of the hearing.

44. All these problems arise in the current matter. X’s family is obviously in a state of extreme crisis.  She has not seen the father for quite a number of weeks after spending relatively lengthy periods of time in his care.  The parties, themselves, fundamentally disagree about what is the nature of the crisis and what caused it. 

45. Essentially, each blames the other for it.  They present the crisis to me as a zero-some game.  I either do what the mother wants, which is essentially no time, or I do what the father wants, which is a return to equal time.  Notwithstanding all the deficiencies in the evidence, a decision has to be made.  The parties demand it and, for obvious reasons, there are dangers in that.

46. At this stage, in addition, there is a dearth of expert evidence.  Clearly, some sort of detailed assessment in the nature of X’s relationship with each of her parents will be required from an independent and expert source.  I do not have that report. 

47. At this stage, due to the evidence available to me, which is largely anecdotal in nature, I cannot make any definitive finding as to whether X has been subject to abuse as defined by section 4 of the Act or, been exposed to family violence as defined by section 4AB of the Act. One party asserts one thing, the other asserts something else.

48. Rather, at this stage, my responsibility is to assess the degree of risk arising from X from being either subject to abuse or family violence in the future. 

49. But at the same time, I cannot ignore the risk of a child being deprived of an otherwise meaningful relationship for her, with a loved parent on the basis of uncertain allegations, or untested evidence.

50. In making the required assessment of risk, the court is required to assess the degree of possibility that a harmful event will occur in future, and what will be its level of severity to any individual, particularly any child who will be potentially affected by it.[1]

    [1]  See Deiter & Deiter [2011] FamCAFC 82 at [61] (Finn, Thackray and Strickland JJ).

51. Essentially, a court is required to assess the risk arising for any child on the material currently before it and cannot defer that assessment until a later stage on account of deficiencies in the evidence available. 

1. Rather, the court must, as best it can, assess the nature and quality for the risk arising and put in place a response which it considers to be proportionate to the degree of risk so assessed.

2. Given the limited nature of evidence available at the interim stage, which has not been tested through cross-examination, this is often an extremely difficult task, however, as I am at pains to point out to the parties, it cannot be deferred.  Obviously, in carrying out such an assessment, the best interests of the child concerned remain paramount. 

3. The court must look at the evidence and consider what is the likelihood of some deleterious outcome occurring with, or without, precautions.  For obvious reasons, highly conflicted parenting relationships provide fertile ground for allegations of abuse to arise which cannot be easily neutralised by the parties concerned discussing them openly and candidly.

4. In addition, there must always be a possibility that a parent, either acting in good faith or as a result of misperception of information, erroneously believes that a child has been subject to abuse.  In addition, it is not unknown for a parent to deliberately fabricate or exaggerate allegations in order to gain an advantage in proceedings.

5. In Goode & Goode,[2] the Full Court cautioned the court about becoming involved in issues which were more appropriate dealt with at the final hearing stage, when all relevant evidence was to hand.  It directed the court to focus on agreed issues and non-contentious facts.

   [2] See Goode & Goode (2006) 36 Fam LR 422.

6. In this context, the following observations of the cases of each of the parties is appropriate.  As I have said, there is no independent evidence to support the allegations of parental misconduct each parent make against the other.  Rather, at this stage, the allegations are all based on anecdote or the personal observations or opinions of each of the parties concerned. 

7. This is particularly so in respect of the father’s assertion that the mother has mental health issues.  The same can be said in respect of the mother’s assertions that the father has been under the influence of drugs by how he presented to her – and things he has said to her in the past.

8. There is no evidence from any independent source at this stage to corroborate the issues raised in respect of either parties’ case.  In addition, each of the parties’ somewhat inchoate notices of risk have been referred to the Department for Child Protection (“the Department”), which has determined that there are insufficient grounds for the Department to intervene in respect of the matters raised, which have been categorised as notifier only issues.

9. Although the nature of an interim hearing is different in its scope to that provided by a final hearing, the same legal principles apply.  In deciding whether to make any particular parenting order in respect to a child, the court must regard the best interests of that child as the paramount or most important consideration. 

10. The matters which the court must take into account in deciding how a child’s best interests are to be best served are set out in – specifically in list form in section 60CC. The section creates two classes of considerations, which are relevant primary considerations and a longer list of additional considerations.

11. Generally speaking, the court should give greater weight to the primary considerations which closely tie in with the overall objects and principles of the Act set out in section 60B. There are two primary considerations which – which are as follows:

    (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 subject to or exposed to abuse, neglect or family violence. 

12. As a result of the insertion of section 60CC(2)(a) into the Act, the court is now directed in applying primary considerations to give greater weight to the primary consideration relating to protective concerns applicable to any child who is the subject to the relevant proceedings.

13. The court is required in assessing risk to subject the various allegations concerned to some level of scrutiny, bearing in mind the consequence of making a wrong assessment which may, on the one hand, compromise a child’s level of relation with a parent for a significant period or time, or on the other hand expose the child to the risk of coming to harm in either a physical or emotional sense. 

14. However, it would be unrealistic for me to completely neutralise some nebulous degree of risk, particularly if that came at the cost of depriving a child of maintaining some form of relationship with a parent. 

15. The most significant issue in dispute is how the initial post-separation equal time regime came about.  Was it through the father’s coercion, as the mother alleges, or was it the natural course of arrangements for a child who had a significant degree of relationship with each of her parents?  I simply cannot resolve that issue. 

16. However, it is the case that there was a significant period of shared care post-separation and in that period it would appear to be the case that no concerns were raised with the Department.  It was only in the New Year that the shared care regime came to an end.

17. X is a child of extremely tender years.  Necessarily, this renders her more liable to being neglected or abused.  It also renders it more problematic as to how she can make a complaint if she has been mistreated. 

18. The Act creates a presumption in section 61DA. The presumption is subject rebuttal in a case such as this one where there are significant allegations of family abuse and neglect. I do not think it would be reasonable for the presumption to be applied given all the allegations made and the obvious difficulties in the parties’ co-parenting relationship.

19. If the presumption is applied, that requires the court to consider equal time and substantial and significant time.  But, because of the rebuttal of the presumption I do not need to consider equal time or substantial and significant time.  Given X’s age and all the controversies arising in the case, I just don’t think it would work.

20. I am still required to have a look at the various section 60CC factors to reach the outcome which I think is in X’s best interests. Given the parties’ relationship with one another, which is mired in mistrust, it seems to me axiomatic that equal time just will not work.

    DISCUSSION

21. The parties agree on practically nothing.  There is no communication between them.  They have not even been able to access any mediation as the mother wanted to opt out of family dispute resolution.  Those factors, I think, clearly negate equal time. 

22. In addition, at this stage there must be, I think, some question marks about whether X, given her tender years, will be able to sustain such a relationship.  The mother asserts that she was struggling earlier this year.  That may be so. 

23. It is equally possible that she may have been reacting to the parties’ troubled relationship with one another.  I simply do not know.  In terms of the various allegations of parental incapacity, as I am at pains to point out, these are all extremely inchoate complaints which arise anecdotally from the parties, who are in the midst of an extremely acrimonious separation which seems to have a financial overlay. 

24. What is the place of the child support assessment in precipitating the conflict?  What is the place of the parties’ business interests in the business in that?  I simply do not know, and I think it is significant that until the financial issues arose neither party saw any necessity to come to court to seek urgent orders. 

25. In addition, there are not any current family violence orders in the matter.  In his affidavit material the father complains that the mother is besmirching his name in the relatively small community of Town G.  But no one has sought any restraining order or anything of that nature. 

26. At this juncture, I do not know what is the level of parental insight or capacity of either of the parents to physically care for a child of X’s age who necessarily needs to be loved and played with, and supervised.  She needs to be fed regularly, she needs to have a routine so far as her naps and sleeping.  All those things.  She needs to be cared for appropriately. 

27. I do not know how the parties themselves, how well placed they are in this regard other than the mother has three other children.  However, the fact remains that post-separation there was an equal time regime, and necessarily it would seem that the father must have some capacity to provide for the child’s needs. 

28. More significantly, I think, there must be some level of relationship between X and her father.  X grew up in the same household with her father, seeing him, it would seem, on a very regular basis.  This was the situation that continued after the parties separated.  She goes from that to having spent no time with him whatsoever. 

29. In these circumstances it seems to me that the mother’s proposal that there be no time until the father goes through an extremely complicated and quite possibly protracted raft of interventions which, with the greatest respect to her, I suspect originated more from her solicitor than from Ms Cordis herself and come about in these extraordinarily adversarial proceedings. 

30. As I say, there are risks in presenting to the court a zero-sum game.  This is where the outcome of the case is either (a) or (b).  I am extremely uncomfortable with that scenario.  But the fact remains that the parties and their legal advisors have absolutely no capacity to compromise or work through some process of incremental evidence gathering. 

31. I am concerned at the severance of X’s relationship with her father and the possibility that if the mother’s orders are put in place, that may lead to further severance of that relationship.  That is a significant risk, given X’s age. 

32. It must be balanced against the risk of exposure to family violence and abuse, which the mother has raised.  In my view, given the evidence and given the nature of the allegations, it would be a disproportionate response to order that there be no time. 

33. The parties do not suggest any honest broker who could act as a supervisor.  That was a query I made of the parties.  Nothing was suggested to me.  I am concerned that to wait for the parties to enrol at a supervised children’s contact centre, which will necessarily take months and which has not been an option put forward by either of the parties, I may say, would also have possibly quite deleterious consequences for X. 

34. On the other hand, I am also concerned about, in the worrying circumstances and the extremely compromised parental relationship between the parties, of there being any prospect of substantial and significant time, or overnight time. 

35. Everything must be balanced against one another at this stage to get the best outcome for X.  I am concerned that the greatest threat to her wellbeing is the parties’ extremely poor relationship with one another. 

36. In my view a proportionate response to the risk arising in this case is to try and get some more evidence from a Family Consultant sooner rather than later.  The parties each asked me to order a Family Report.  That is a significant utilisation of public money. 

37. In any event, it is going to take some significant time for such a report to be utilised because other reports for other families have to be prepared and are further advanced. 

38. At this stage, as a result of enquiries that I have made, the parties can attend a child dispute resolution conference on 28 April, which is comparatively soon.  That will give me some information.  I am going to direct that the parties attend that conference in-person.  The Family Consultant will at least have an opportunity of seeing to the parties directly and asking them questions. 

39. Cases involving any allegation of sexual abuse are complex and challenging. Particularly when the abuse alleged concerns a very young child, who is not cognitively or linguistically developed, and another older child. These cases are particularly difficult. 

40. On the one hand, it may be impossible for the court to determine definitively whether a child has or has not been abused. However, at the same time such allegations must be taken seriously because of their possible negative impact on a child. 

41. The court must assess the risk arising for a child and determine whether the level of risk is unacceptable.  At the same time, there are risks in reducing or ending a worthwhile relationship for a child on the basis of uncertain or ambiguous evidence.

42. The Full Court in a case called W & W (abuse allegations: unacceptable risk),[3] directed that, because of the serious consequence for a child of abuse, the court needed to give real and substantial consideration to the facts of the case concerned in determining whether there is or is not an unacceptable risk of harm befalling a child;

    [3]  W & W (abuse allegations; unacceptable risk) (2005) 34 Fam LR 129, 145 [94]-[96] (Warnick, May and Boland JJ).

43. In so doing, the sorts of questions, which the court should pose for itself, in respect of the allegations concerned, include the following:

    •What is the nature of the events alleged to have taken place?

    •Who has made the allegations?

    •To whom have the allegations been made?

    •What level of detail do they involve?

    •Over what period of time are the events alleged to have occurred?

    •What are the effects exhibited by the child?

    •What is the basis of the allegations?

    •Are the allegations reasonably based?

    •Are the allegations genuinely believed by the person making them?

    •What expert evidence has been provided?

    •Are there satisfactory explanations for the allegations apart from abuse?

    •What are the likely future effects on the child concerned?

    •The weight to be attached to the answers arising from these questions will vary from case to case.[4]

    [4] Ibid 148 [105], quoting In the Marriage of N & S (1995) 19 Fam LR 837, 860 (Fogarty J).

44. The reality is the triggering event occurred when E was seven; he is nine.  It involved another child.  Police have not been involved.  The child, X, has not been taken to a psychologist.  It is extremely unclear what effects this incident, whatever happens, had on her and above all, it arises in these extraordinarily acrimonious proceedings. 

45. I am not going to make any orders in respect of E and X’s interaction.  I think X needs, for her best interest to be served, to reconnect with her father.

46. I think, at this stage, because of the parties poor relationship, overnight time is not going to work.  It would have been beneficial for the parties to have tried to work through these issues themselves, but they cannot, so I have to specify some time. 

47. I am going to direct that, essentially, that the father have some time on Saturday, between 9:00am and 5:00 pm.  And then on each Wednesday between 2:30 pm and 5:30 pm with handover either to be at X’s day-care, or if it is possible on Wednesdays, or at the police station.

48. I will make the orders in respect of getting the matter ready in respect of the property aspect of it for reconciliation of conference. I will also make an injunction restraining either of the parties from denigrating the other or using drugs.  Drugs are illegal, obviously, and X should not be exposed to such behaviour.  The parties need to understand that the dispute between them is their dispute.  It is not X’s dispute.  So for those reasons, I will make these orders.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

Associate:

Dated:       25 January 2022