CORSON & CORSON
[2018] FCCA 3487
•11 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CORSON & CORSON | [2018] FCCA 3487 |
| Catchwords: FAMILY LAW – Interim parenting – whether unacceptable risk of abuse for children to spend unsupervised time with father – identification of the alleged risk – unsupervised time ordered. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT |
| Cases cited: Goode & Goode [2006] FamCA 1346 WK v SR (1997) FLC 92-787 |
| Applicant: | MR CORSON |
| Respondent: | MS CORSON |
| File Number: | WOC 886 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 19 November 2018 |
| Date of Last Submission: | 19 November 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 11 December 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Caldwell Martin & Cox |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Rossi Simicic Lawyers |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
ORDERS PENDING FURTHER ORDER
The parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children [X] (born 2013) and [Y] (born 2017) (“the children”).
The children live with the Mother.
The children spend time with the Father as follows:
(a)Each week on Thursday from 3:00pm to 6:00pm;
(b)Each week on Saturday from 9:00am to 6:00pm; and
(c)On Christmas Day from 3:00pm until 6:00pm;
(d)On New Year’s Day from 3:00pm until 6:00pm;
(e)On Good Friday from 3:00pm until 6:00pm;
(f)On Easter Sunday from 3:00pm until 6:00pm; and
(g)At such other or alternate times as agreed between the parties.
With the exception of the time ordered in Order 3(a) above where the Father will collect the children from day-care, at all other times the Father or his nominee will collect the children from the Mother’s home at the commencement of his time with them, and the Mother or her nominee will collect the children from the Father’s home at the conclusion of their time with him.
Whilst the children are in his care, the Father be restricted from using any electronic device for any socially or sexually inappropriate purpose, including accessing through any media pornography or any content that is inappropriate for children.
The Father be restricted from exposing himself, or appearing naked before the children, at any time.
The Father be restricted from receiving, or sending, any sexually explicit, or socially inappropriate content from any electronic device, whilst the children are in his care.
At such times that the children are in the Mother’s care, the children are to communicate with the Father via telephone each night at 5:30pm and the Mother shall do all such things required to facilitate such communication between the children and the Father.
Both parties be restrained from;
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
(c)Contacting or attempting to contact the children by any direct or indirect means, SAVE AND EXCEPT as provided for in these Orders.
The parties shall communicate via text message for the purposes of discussing the children, unless in the event of an emergency, where the parties shall telephone.
The parties are each to:
(a)Keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and notify each other within 7 days of any change;
(b)Advise the other immediately in the event that either child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended; and
(c)Authorise any medical practitioner, hospital or medical practice at which either child may attend from time to time, to communicate with the other party in respect to that child’s medical condition and/or requirements.
Each party be entitled to attend all day care, school and extra-curricular activities involving the children, including;
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)Pre-school and school function and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.
The matter be adjourned to 2 April 2019 at 9:30am for Mention.
NOTATIONS
(A)The purpose of the adjourned date is to consider the question of an Expert’s Report being prepared in this matter.
IT IS NOTED that publication of this judgment under the pseudonym Corson & Corson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 886 of 2018
| MR CORSON |
Applicant
And
| MS CORSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X], born 2013, who is 5 years old, and her brother [Y], born 2017, who is 1 year old. The Court must decide in what circumstances the children spend time with their Father.
Background
The Father is the Applicant in these proceedings. He is 42 years old and he is an [occupation omitted]. The Mother is the Respondent. She is 38 years old, and is a [occupation omitted]. They commenced cohabitation in [date] 2003, married in [date] 2004, separated, albeit under the same roof, in February 2018 and physically separated in July 2018 when the Father moved out of the former matrimonial home. It seems that the Father’s application was commenced because he was dissatisfied with the time that he was spending with the children. The Application was filed on 3 September 2018 and covers both parenting and property orders. It seems as if the Father had regular time with the children until 1 November 2018 when the Mother ceased all contact between the children and their father.
The competing proposals
The Father seeks an interim order for equal shared parental responsibility, that the children live with their mother, and spend time with him on a gradually increasing basis. In the first 4 weeks from the making of Orders, it would be from 3:00pm to 6:00pm on Thursdays, and then from 9:00am on Saturday to 9:00am on Sunday. At the expiration of this period, the children would spend time with their father in week 1 from 3:00pm on Thursday to the commencement of school on Friday, and then from 9:00am on Saturday to 4:00pm on Sunday. In week 2, it would be from 3:00pm on Thursday to the commencement of school on Friday. After 4 weeks, therefore, the Father’s proposal would progress to substantial and significant time. He also made a proposal for special days and for school holidays.
The Mother’s proposed Minute of Order was contained in her case outline document filed 16 November 2018. She not only proposed that the children live with her, but that she have sole parental responsibility. In the alternative, she sought sole parental responsibility in relation to education and health. She proposed that the children spend time with the Father for 3 hours each week supervised by a supervised children’s contact service, at the Father’s expense.
The children were represented by Ms Volk, as their Independent Children’s Lawyer. She supported the Mother’s proposal.
The evidence before the Court
In the Father’s case, he relied on the following documents:
a)Initiating Application of Mr Corson filed 3 September 2018;
b)Affidavit of Mr Corson filed 12 November 2018;
c)Affidavit of Mr Corson filed 3 September 2018;
d)Notice of Risk filed by Mr Corson on 3 September 2018.
In the Mother’s case, she relied on the following documents:
a)Response to an Initiating Application of Ms Corson filed 1 November 2018;
b)Affidavit of Ms Corson filed 1 November 2018;
c)Notice of Risk filed by Ms Corson on 1 November 2018.
The following documents were tendered as evidence during the proceedings:
a)Documents produced in answer to subpoena on the Department of Family and Community Services; and
b)A bundle tendered by the Respondent Mother containing material produced in answer to subpoena on the Department of Education.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) 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:
(a) 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
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(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).
Primary considerations
(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).
Additional considerations
(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.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
This a case where the Mother alleges that there is an unacceptable risk of abuse to the children. A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that 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.
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 (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. 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 (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
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.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. 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 assessing 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.
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. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). 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.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘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.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. 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.19. 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 be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the Independent Children’s Lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
The issues
The Mother framed her case, supported by the Independent Children’s Lawyer, as an unacceptable risk of abuse case. The Father’s case basically contended that even if the Court accepted all the matters raised by the Mother, there was no unacceptable risk to the children that would warrant the level of supervision, and limits on his time, proposed by the Mother, and supported by the Independent Children’s Lawyer. The Court accepts that, in the context of an Interim Hearing before there is any expert evidence, this case will be primarily determined by reference to the need to protect the children from the risk of harm. That is not to say that other issues are not relevant, but rather that they are not determinative.
The basis of the alleged risk to the children
The Independent Children’s Lawyer characterised the risk issues as relating to the Father’s seeming inability to maintain proper boundaries in his behaviour towards others, or in the presence of others. Counsel for the Mother conceded that whilst the Mother’s case was based on unacceptable risk of abuse, it was not contended that the Father presented to his children any risk of sexual abuse, but rather that his conduct over a period of time, and in a range of different contexts, raised questions about his lifestyle, role modelling, availability for the children, and a preoccupation with sexual activities. It was contended that the Father’s lack of insight about these issues exacerbated the risk to his children.
In the Father’s case, he accepted that he had demonstrated poor judgement in many of the activities that will be referred to below, but his case is that there is no risk to the children and that, in fact, the Mother’s case drew a “long bow” between the Father’s behaviour, and any risk to the children.
The Mother raised a number of specific concerns about the Father. [X] disclosed that her father sat with his legs open, and that her father had his penis out. The Mother alleges that the Father has walked around naked in front of [X], and responded aggressively when the Mother remonstrated with him. The Mother further contended that the Father regularly viewed pornography on his mobile phone and laptop, and received and responded to sexually explicit messages in his workplace as a [occupation omitted], even when training children’s [sports games]. The Mother contends that [X] was able to access a video of animals mating through YouTube on the Father’s mobile phone. Her concern is that the Father found this to be humorous, and could not appreciate that [X] had been exposed to inappropriate material for a girl her age. The Mother contended that the Father continued to kiss [X] on the lips, despite [X] indicating her dislike of this. Moreover, the Mother contends that on 18 May 2018, the Father filmed himself masturbating and sent the video to a third party, all whilst he was located on the lounge opposite the children’s bedrooms. The Mother’s concern was that [X] would wake up and be exposed to the Father’s behaviour.
The Mother also relied on information derived from the Father’s employment records which indicated that he had been the subject of a number of formal and informal complaints by female colleagues, over an extended period of time, in relation to inappropriate conduct. The conduct included inappropriate comments to female colleagues with respect to oral sex and unwarranted sexualised conversations, and the Father sending two videos of himself masturbating.
The Mother deposes to [X] engaging in sexualised behaviour, including repeatedly touching her vagina through her underwear and lying with her legs open whilst facing her brother. In her submissions, the Mother seemed to emphasise that she was not alleging that [X] had been sexually abused, but rather that the risk to her arose from the Father’s poor boundaries, and the risk of her being exposed to inappropriate behaviour and/or content whilst in the care of the Father.
The Mother’s case emphasised that the risk to the children was exacerbated by the father continuing his behaviour in the workplace despite disciplinary action, and his dismissive response to the Mother’s concern.
The Father disputes the characterisation of his behaviour as inappropriate towards his children. He asserts that the children never have, and never will be exposed to inappropriate material via their father. He believes that the cause of the Mother’s resistance to him spending time with the children is her anxiety and possible depression. He denies ever having exposed himself to the children, even accidentally. He agrees that [X] has been touching her vagina through her underwear, and deposes to [X] having said to him that she is itchy, or needs to go to the toilet. He says he has never seen [X] laying, or sitting, with her legs open towards [Y]. Nonetheless, he accepted that he does occasionally view pornography, usually at night, and when he was alone. He agreed that between 16 and 24 May he received text messages from a female who he had known for several years, which were very personal in nature, and which were in fact reproduced in annexures to the Mother’s Affidavit. He insists that at no time did the children see the images, nor were they in his presence when he viewed the images.
The Father conceded that there were workplace complaints, but professed to not being aware of the specific allegations. Indeed, he contended that the allegation and subsequent investigation was as a result of the Mother’s intervention through her solicitor.
The Father agrees that [X] was watching a YouTube clip on his mobile phone. He was allowing her to watch a clip of a professional bull riding but, apparently, and unbeknownst to him, she then clicked onto another video of a bull attempting to mount a cow. He explained to [X] that it was two cows playing.
Is there a risk of harm to these children if they spend unsupervised time with their father?
There is a difference between a parent undertaking conduct that another parent might find to be unacceptable, and indeed possibly repulsive, and that same activity presenting an unacceptable risk of harm to children. It was incumbent on the Mother to assist the Court in understanding how behaviour which is clearly socially inappropriate, and possibly even repulsive, amounted to an identifiable risk to the children of both the Father and the Mother. The Mother conceded that the risk to the children was not that the Father would sexually abuse them. The risk was framed in terms of being inappropriate boundaries, but it was hard to understand why, even if the Court accepts (as it does) that the Father’s behaviour was demonstrative of inappropriate personal boundaries, that this presented a risk of harm to his own children. There is no evidence that he ever masturbated in front of children, let alone his own children. There is no evidence that his sexting involved children in any way. There was no evidence presented before the Court to suggest that his alleged inappropriate, perhaps even lewd, behaviour towards colleagues at work somehow presented a risk to anyone’s children, let alone his own. Even the Mother’s case seemed to contend that the Father was no more than an occasional user of pornography, and even joining the dots of her case, this seemed to be in the context of self-gratification. The risk to the children was depicted in only the most indirect of terms.
None of the above comments should be misunderstood as some tacit acceptance, or legitimisation, of the Father’s conduct. Indeed, the Court may well share whatever feelings of revulsion the Mother has about what the Father has done, or is alleged to have done. But that is irrelevant.
Even on the Mother’s case, the Father was integrally involved in the children’s lives before separation and even after separation. She has brought about a significant change in their lives by preventing them from spending any time with him. In raising the above issues as justification of this, it was incumbent on her to identify, precisely, what the risks to the children were.
It should not be left to the Court to guess what, precisely, the asserted risks to the children are. That was the position that the Court was left in. In many ways, the Mother’s case was based on innuendo. When all these examples of the Father’s inappropriate behaviour are put together in collage like fashion, it presents a picture of a sexual deviant who posed a risk to his children. But what risk? Specifically, what risk is there to the children that could only be managed by professionally supervised time? Was it that the Father would view pornography in the presence of, and during his time with the children? Was it that the Father would engage in sexting during his time with, or in the presence of the children? Was it that the Father would expose himself to his children, whilst in his care? Was it that the Father would act in a sexually or socially inappropriate manner towards other persons, whilst the children were in his care? None of these matters were explicitly put as submissions in the Mother’s case. The reason for this is, with respect, self-evident: there was no evidence to suggest that any of these contentions could plausibly be advanced on the evidence before the Court.
Counsel for the Mother must have had at least some inkling of the weaknesses of the Mother’s case, because she made specific submissions to the Court about why making injunctive orders against the Father, no doubt prescriptively restricting certain behaviour whilst with the children, would not be enough. Counsel contended that the evidence indicated, particularly the Father’s employment records, that he was resistant to direction. Implicit in this contention is the assertion that the Father does not accept that his behaviour has been inappropriate and, indeed, minimises the same. Indeed there is evidence to suggest that, and that is a consideration to be taken into account in managing any asserted risk to the children. But it does not mean that the Father would not comply with orders made by this Court, during the course of proceedings that may largely determine his future relationship with his children.
The Independent Children’s Lawyer’s submissions was, perhaps, somewhat more nuanced. The concern was expressed about the Father’s conduct towards female colleagues. But there is no issue that all of these female colleagues were adults. How that transposes into a risk of harm to his own children, remains unclear.
The need for expert evidence in this case is self-evident. The focus is on how any risk to the children can be managed between now, and the date of receipt of that evidence. In the normal course, a delay of several months can be expected. In this case, based on the totality of the material before it, this Court concludes that any risk to the children can be minimised and managed by limiting the Father’s time with them and restricting his behaviours, and that there is no necessity for the Father’s time to be actually supervised.
The Court openly acknowledges that part of its concern is to address the impression that is created through the presentation of the Mother’s case, i.e. of her own anxiety. This is a relevant consideration, given that she is the undisputed primary carer of the children. Experience indicates that there is always a risk of an anxious parent transmitting their anxiety to children, perhaps even unwittingly. Whilst proposed restrictions are at least partly intended to reassure the Mother, the Father must likewise understand that these Interim Orders are made in a context where the evidence cannot be tested in cross-examination. There is thus factual uncertainty. Restrictions will be imposed on him. It is possible at a Final Hearing that the need for them will not be borne out. But as risk assessment at an Interim Hearing is so much more difficult than at a Final Hearing, he will need to accept the necessity for them.
By structuring the Father’s time with the children so as to avoid overnights, the Mother might be reassured about some of the behaviours of the Father that she is so concerned about. The Father will also be restricted from using any electronic device, whilst he has the care of the children, for any socially or sexually inappropriate purpose, including accessing pornography of any kind, through any media, or any content that is inappropriate for children. The Father will be ordered not to expose himself, or appear naked before the children, at any time. The Father will be ordered to desist from receiving, or sending, any sexually explicit, or socially inappropriate, content from any electronic device, whilst the children are in his care.
Other relevant considerations
The resumption of time between the children and their father will not be a change that is unacceptable for them, on the material before the Court.
There appear to be no issues of practical difficulty and expense. The parents do not live too far away from each other geographically. They both work full-time. They both have the assistance of grandparents.
Counsel for the Mother quite properly submitted that the Father’s proposal was developmentally inappropriate. Indeed, it was. Given [Y]’s young age, the Father’s proposal could be described as too much, too quickly. In any event, it is other issues that mandate shorter time periods with the Father.
There are issues about parental attitudes, and possibly even parental capacities, that need to be subjected to the forensic scrutiny of an Expert’s Report. The Father has, by his actions, seemingly betrayed any trust that once existed between the parents. There are issues about the level of his insight into not just the inappropriateness of his activities, but their potential impact on his own family, that need to be explored further. The Father will, no doubt, contend that there are issues about the Mother’s attitude in seeking to disproportionately control his time with the children, even having regard to the matters she raises.
These are all matters for another time.
Orders in the best interests of the children
The Court is not satisfied that, on the evidence before it, the statutory presumption of equal shared parental responsibility has either been rebutted, or is negated. The presumption of equal shared parental responsibility applies.
There is no doubt that these children should continue to live with their mother.
In the Father’s minute of order, he proposes that for the first 4 weeks from the making of these Orders, he spend time with the children each week from 3:00pm to 6:00pm Thursday, and then each week from 9:00am Saturday to 9:00am Sunday. The Order in relation to Thursday will be made, but the order the Court makes in relation to Saturday will be from 9:00am to 6:00pm.
The Father proposed an extension, indeed quite a significant extension of his time with the children, after 4 weeks. The Court is not prepared to consider an extension in the absence of expert evidence to assist the Court in assessing risk to the children and any developmental issues pertaining to them. Accordingly, the arrangement described above will continue pending further Order.
Christmas Day should be shared. New Year’s Day, Good Friday, and Easter Sunday can be divided in the same manner.
It is appropriate for there to be an Order that the children communicate with the Father when they are in the Mother’s care. Given the very young age of the children, the nightly communication at 5:30pm proposed by the Father seems appropriate.
The Court believes it is very important that the parents do not discuss these proceedings, or denigrate each other, in the presence of the children, or allow any other person to do so. Very serious allegations have been raised by the Mother in this case and it would entirely inappropriate from the children’s perspective, for those concerns to be articulated, either in their presence, or anywhere else for that matter.
The Father proposes that the parties communicate via text message for the purpose of discussing the children. This seems appropriate. Orders 7, 8 and 9 of the Father’s Minute appear appropriate.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 11 December 2018
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Family Law
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