Costello and Costello (No 2)

FAMILY COURT OF AUSTRALIA

COSTELLO & COSTELLO (NO. 2)

[2017] FamCA 727

FAMILY LAW – CHILDREN – Where father seeks for children to live equally between the parents - Where mother seeks sole parental responsibility and for children to live with her – Mother seeks children to have no contact with father – Where mother alleges that father’s mental health poses an unacceptable risk to children – Findings that father does not pose an unacceptable risk - Mother to have sole parental responsibility – Where children are to live with mother and spend time with father - Where father’s time with children is conditional upon him continuing psychiatric treatment and being medication compliant

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) s 140

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692.
Russell v Close (Unreported, 25 June 1993)

APPLICANT:

Mr Costello

RESPONDENT:

Ms Costello

INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

FILE NUMBER:

CSC

787

2014

DATE DELIVERED:

20 September 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

13, 14, 15 and 16 June 2017

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Fellows (by way of direct brief)

COUNSEL FOR THE INDEPENDENT

CHILDRENS LAWYER:

Mr Trevino

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Susan Gray

Orders

Living arrangements for the children

The children D born …, 2009 and C born … 2006 and B born … 2003 live with the mother.

Parental responsibility

The mother is to have sole parental responsibility for the decisions in relation to the long term care welfare and development of the children. For the purposes of these orders, major long term issues include but are not limited to:
(a)       The child’s education (both current and future);
(b)       The child’s religious and cultural upbringing;
(c)       The child’s health;
(d)       The child’s name;
(e)Changes to the child’s living arrangments that make it significantly more       difficult for the child to spend time with a parent.
The mother is to advise the father by way of email of significant decisions made by her in the exercise fo her sole parental responsibility within 7 days of them being made.

Father’s time with the children

The children will spend time with the father at all times as agreed between the parties in writing and failing agreement as follows:
(a) During the school term:
(i)Each alternate weekend from after school Friday until commencement of school on Monday if he is living within a 50 km radius of the children’s school;
(ii)If the father is not living within a 50 km radius of the school then each alternate weekend from after school Friday until 5.00pm on Sunday;
(b)During each of the term 1, 2 and 3 school holiday periods, for 4 consecutive days commencing in 2017 term 3 school holidays with the time being taken in the first week of the school holidays in odd numbered years and the second week in even numbered years;
(c)During the Christmas school holiday period for 4 consecutive days in each of the first three weeks of the period in odd numbered years and for 4 consecutive days in each of the later three weeks of the period in even numbered years;
(d)If the children are not otherwise spending time with the father on Father’s Day, then from 9.00am until 5.00pm on father’s day;
(e)If the children are not otherwise spending time with the father on the father’s birthday then from after school until 6.00pm if his birthday falls on a school day or from 9.00am until 5.00pm if on a non-school day.
The father’s time with the children pursuant to order 4 above is conditional upon the following:
(a)That the father continue psychiatric treatment with Dr Q and attend upon any other mental health professional as directed by her;
(b)That the father follow all recommendations provided to him by Dr Q including referrals to other treating practitioners and in respect of medication;
(c)That the father authorise and this Order acts as such authority to Dr Q or any other mental health care treating professionals he attends, to communicate with the mother about his mental health, including but not limited to information about:
(i)Attendance upon such professional;
(ii)Compliance with medication;
(iii)Whether he poses a risk to the children.
(d)That the father forthwith enrol in, and successfully complete, a post separation parenting orders programme with an appropriate service provider and provide a copy of the completion certificate to the mother by no later than 4:00pm on 16 June 2018.

Communication and information sharing

The parents are to keep the other parent advised of any change to their residential address telephone numbers or email addresses and advise the other parent within 48 hours of any such changes.
The parents shall communicate by way of email in relation to the children and each parent shall provide an email address to the other within 48 hours of the date these orders are made with that email address to be solely for the purpose of communicating any issues in relation to the children.
The father is authorised to obtain school reports, photographs and information relating to the children’s education and extracurricular activities.

Other matters

The Independent Children’s Lawyer be discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all outstanding applications in relation to the children’s matters be removed from the pending cases list.
The extant proceedings for property settlement be remitted to the Federal Circuit Court in Cairns.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Costello & Costello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC787/2014

Mr Costello

Applicant

And

Ms Costello

Respondent

REASONS FOR JUDGMENT

introduction

By his Amended Initiating Application filed 16 May 2017, Mr Costello (“the father”) seeks orders which, in substance, would see the parties’ three children, B (born in 2003 and hence presently 13 years of age), C (born in 2006 and hence presently 11 years of age) and D (born in 2009 and hence presently 7 years of age) (“the children”) live equally between the parties’ two households. Implicitly he also sought an order for equal shared parental responsibility. However by her Amended Response to Initiating Application filed 19 May 2017, the primary orders sought by Ms Costello (“the mother”) were that she have sole parental responsibility for the children, who should live with her, and neither spend time nor communicate with the father, save that he be permitted to send each of the children either a letter or card and gift for their birthdays, and at Christmas and Easter. She justified those orders on the basis that the father presents an unacceptable risk of harm to the children, as I shall shortly discuss.
The Independent Children's Lawyer supported neither of the parties’ primary proposals. Rather she sought that the mother have sole parental responsibility for the children, who would, primarily live with her, but spend alternate weekends with the father, together with periods during all school holidays. However those orders in relation to the father spending time with the children were conditioned upon him continuing to seek psychiatric treatment from his present psychiatrist, and following all her recommendations, including in respect of medication.

BACKGROUND FACTS

The mother

The mother was born in 1974 in Tasmania and hence is presently 43 years of age. After completing her schooling, she obtained an Arts degree, and thereafter obtained employment in the service industry. At some stage she moved to live in R Town, and was doing so when she and the father met in January 2002, when she was 27 years of age.

The father

The father was born in North Queensland in 1974 and hence is presently 43 years of age. He grew up in F Town and excelled at school, both academically and at sport. After completing his schooling, he commenced to tertiary education as a health professional, although it appears as though he had to repeat two years of study. Also during that time, he first began to experience symptoms of anxiety.
He graduated in 1999 and began working in S Town, and was so employed when, aged 27, he met the mother in January 2002.

The relationship

Initially the parties conducted a long distance relationship, with the mother being in R Town and the father in S Town. Then in May 2002 the mother purchased a property in Brisbane and moved there, however the relationship continued as a long distance one. The parties were engaged in September 2002 and in January 2003 the father relocated to T Town. The next month the mother became pregnant with what was to prove to be B, and they married in 2003.
In June 2003 the father ceased work in T Town and the parties commenced to cohabit. In August 2003 the mother ceased her employment, but returned to part time work at the end of 2003 after B was born. During this time the father remained in employment in several roles and other locations in the greater Brisbane area. In January 2006 the mother again ceased work in anticipation of C’s birth, and ultimately resigned in January 2007.
In the middle of 2007 the parties began to contemplate moving to live in Far North Queensland, and ultimately relocated there in January 2009. D was then born there in 2009.
Whereas up until the move to North Queensland, the father had been engaged in one type of employment, his move to North Queensland saw him commence training to modify his skills. That required him to be employed from time to time in different practices. However from early on, one of his employers diagnosed the father as suffering from depression and prescribed appropriate medication.
It appears as though the father was having some difficulty in behaving appropriately during his traineeship, and there were complaints by at least one female patient in relation to him misconducting himself. On 6 April 2010 he was advised by his medial supervisors that his progress was unsatisfactory and he would not be re-appointed as a trainee for the second half of the year. He then suffered a panic attack which led to him seeing a psychiatrist, Dr U for a few months. Thereafter, although the father did continue with his training, he continued to struggle with it, and appears to have had ongoing problems at work.
At around this time, the mother completed a graduate certificate, and commenced employment.
The parties’ relationship, which had always been a difficult one, appears to have experienced greater stress in North Queensland than elsewhere. The mother became aware that the father had been unfaithful to her in a number of affairs, and more, had a strong interest in pornography. From about 2010 she installed spyware on the parties’ home computer which she says revealed that the father was visiting up to seven different pornographic sites each day. She says that in 2012, she would often wake up in the middle of the night, and notice that the father was in another room masturbating to pornography. On another occasion when the father was masturbating during the day, the children were immediately outside the house playing on a trampoline.
Towards the end of 2012 the parties separated for what appears to have been a relatively brief period of time. During that separation, in November 2012, the mother wrote a hand written letter to the father in which she discussed their relationship, and their problems in it. On one view that letter is important, because it may reflect her then contemporaneous view as to what, if any, risk the father posed to the children.
After they had reconciled, the parties attended counselling with a view to improving their communication. However at the end of the first session the father terminated the relationship, on 21 June 2013. The mother and children remained living in the former matrimonial home and the father moved in with his parents.

Post-separation

The father then began to suffer an exacerbation of his mental health problems, and ultimately in August 2013 his employment at was terminated. His professional registration was suspended due to concerns in relation to his mental health.
The father then re-engaged with Dr U, which led to his hospitalisation at a psychiatric clinic for six weeks commencing 9 September 2013. Amongst the material in evidence before me was a report from Dr U of 10 September 2013, which provides a record of the father’s problems at that time.
In October 2013 the father was discharged from the psychiatric clinic and returned to live with his parents. He commenced to spend short periods of time with the children in the former matrimonial home.
On 24 October 2013 there was an episode when the father, who was under the influence of alcohol, attended the former matrimonial home, which resulted in the police being called. In evidence was the record of their attendance on the night, which involved the father engaging in bizarre behaviour, including hugging a toilet bowl and speaking to his wedding ring as if it were a magical object.
That precipitated the mother and children moving out of the former matrimonial home on the following day. Ultimately in October 2013, the father was readmitted to the psychiatric institution for a further three weeks.
In November 2013 the father was discharged from the hospital again, and seemingly either immediately, or shortly thereafter, commenced a relationship with a women whom he had met on an internet dating site. They immediately moved in with each other.
From this time onwards the mother insisted that the father’s time with the children be supervised. Initially this was day time only, but it ultimately moved to overnight time in the father’s home, supervised by his then girlfriend.
In April 2014 the father moved back in to the former matrimonial home, seemingly coinciding with the cessation of his new relationship. He then commenced spending overnight time with the children in his home supervised by his parents. However from an early stage it appears as though the mother became concerned that D was sleeping in the same bed as the father on occasions, and she thereupon cancelled the overnight visits.
At around this time the mother began to express concerns that the father either had sexually abused one or more of the children, or was a risk of doing so. The father notified the Department of Child Safety in relation to the mother’s concerns, and they investigated. That investigation involved the two older children, however no disclosures were made during their interviews. It is pertinent to note that at this time the mother remained employed as a child safety officer, only resigning in December 2014.
On 3 July 2014 the parties attended mediation and agreed a parenting plan whereby the children would live with the mother, and spend supervised time with the father for the next three months. However it does not appear as though formal supervision commenced until December 2014 at the R Town Contact Centre.
On 2 September 2014 the father’s professional registration was reinstated on various onerous conditions.
From 6 December 2014 until July 2015 the father spent supervised time with the children at the R Town Contact Centre. I will discuss the detail of those visits in due course, but for present purposes it is suffice to say that on 16 July 2015 the father ceased utilising the Centre’s services, and thereafter did not see or speak with the children for four months.
During the time that the father was spending supervised time with the children, a number of important things occurred, including:
·In January 2015 the mother commenced a new relationship with her present partner;
·On 23 February 2015 the parties divorced;
·On 31 March 2015 the father commenced these proceedings;
·On 3 April 2015 the father recommenced employment for two mornings per week;
·On 13 April 2015 the father’s employment was terminated for boundary violations, including inappropriate touching of, and discussing intimate issues with, staff;
·On 14 April 2015 the mother filed a domestic violence order application;
·On 12 May 2015 the matter was first mentioned in the Federal Circuit Court;
·On 2 June 2015 the father consented to final domestic violence protection orders without admission;
·Also on 2 June 2015 a Child Inclusive Memorandum was prepared by a Family Consultant of the Cairns Registry who noted that, if the mother’s concerns in relation to the father were correct, there was a risk in the children spending any unsupervised time with the father.
On 29 July 2015 this matter was transferred from the Federal Circuit Court to this court and a psychiatric report was ordered to be prepared.
On 17 August 2015 a Family Report was prepared and published to the parties. The author was Dr J. He recommended that there be shared parental responsibility for the children, and that the father, if it be accepted that his concerning behaviours were the product of a deterioration in mental health rather than sexual predation, recommence spending unsupervised time with the children on an incrementally increasing basis.
On 2 November 2015 the father’s application for interim parenting orders came on before me. Ultimately interim, short-term orders were made by consent, which saw the father commence to spend time with all three children on alternate Tuesdays and then Mondays from after school until 7:30pm, provided that such time be initially vigilantly supervised by named persons, and thereafter spent in the reasonable vicinity of them.
The interim hearing resumed before me on 9 December 2015. By then a psychiatric report from Dr K had been made available. It diagnosed the father as suffering from bipolar affective disorder type 2, and expressed distinct discomfort about the father moving beyond supervised contact with the children for the foreseeable future. However importantly the risk Dr K identified was not that he was a sexual predator of children, or indeed a sexual predator generally, but rather that his poor mental health gave rise to poor regulation of boundaries, including, and particularly in relation to, his sexual behaviour.
On 9 December I ordered that the father spend time during the forthcoming school holidays with the children from 11:00am until 4:00pm each Monday, Tuesday and Wednesday for the first three weeks of the holidays, but thereafter the second three weeks from 11:00am on Monday until 4:00pm on Tuesday. Both periods of time was to be supervised by one or more of the paternal grandparents.
On 2 February 2016, the matter then returned before me again on an interim basis at the conclusion of the school holidays, on which occasion consent orders were pronounced which saw the father spend alternate weekend time with the children from after school on Friday until before school on Monday, and a further overnight on Wednesday every week with B, however such time was to “be in the attendance of and supported by one or more of the paternal grandparents.” Importantly the father consented to an order restraining him from permitting the children into his bed at night.

The matter came back again on 12 April 2016 for further review, on which occasion the regime that had been ordered on 2 February 2016 was repeated by consent, save that it was noted that the paternal grandparents agreed that they would remain no further than 500 metres from the father during the times when the children were spending time with him. The matter was then adjourned for further hearing to 6 December 2016, as the parties had been unable to agree to the regime that should prevail in relation to the Christmas school holidays of that year.
Consequent upon the further hearing on 6 December 2016, on 22 December 2016 I pronounced orders and published reasons which permitted the children to spend holiday time with the father from 8:00am each Monday until 4:30pm each Thursday, such time to remain supervised by the paternal grandparents until Monday 2 January 2017, but thereafter that supervision was dispensed with. I also ordered that the father was to undergo fortnightly blood testing and to produce those results to the Independent Children's Lawyer, so as to demonstrate that he remained compliant with his then medication regime.
Although the father had tendered into evidence at that hearing a letter from his psychiatrist which indicated that he was then compliant with his medication regime, it has subsequently transpired that he had ceased his medication in October 2016, and misled me at the hearing on 6 December by providing that letter. In fact, he has not thereafter continued on any medication regime (noting that he briefly resumed it at a sub-therapeutic dose for a couple of days in December 2016).
Save that, on occasion, the father did not avail himself of the full complement of days provided for under the orders because of his commitments in relation to a forthcoming theatre production, the move to unsupervised time proceeded, and the matter returned again for review on 2 February 2017. By then the father had attended a further Child Inclusive Conference which had revealed that in fact he was then noncompliant with his recommended medication regime. The matter was then listed to resume on 13 February 2017, on which occasion the father was ordered to make arrangements for his psychiatrist and psychologist to attend to answer any questions which the court or parties may have of them. In the interim the father was to continue to spend unsupervised time with the children. Additionally, the child B was to keep her mobile phone with her at all times, and to be able to call a responsible adult to request that the children be collected from the father’s care, in which event his time would thereupon be suspended.
When the matter resumed on 13 February 2017, the father did not produce either his psychiatrist or psychologist, as had been ordered. Notwithstanding that failure, on that occasion I listed the matter for trial to commence 6 June 2017, and made a regime of orders which saw the father continuing to spend unsupervised time with the children each alternate weekend during school terms, and for block periods of time over school holidays, provided that the father gave to the Independent Children's Lawyer and the mother a report from his psychiatrist or GP each month, dealing with his current psychological functioning and mental health. The safety plan of permitting B to telephone to request to have the children return to the mother also continued.
However, notwithstanding the imminent trial, on 5 May 2017 the mother sought to revisit those interim orders, essentially on two bases; firstly that she was now aware that the father had permitted, notwithstanding the order prohibiting it, D to come into his bed of a night and sleep there; secondly, she emphasised again that the father, had a diagnosed psychiatric condition but was not taking the recommended medication. Further, she said that D had recently revealed to her that she had a secret with the father, which made her feel “yucky,” and had complained of having a sore vagina, although she refused medical examination in relation to that.
At that hearing the father indicated that, because of his considerable obligations in relation to his theatre commitments, he was content to revert simply to day time hours only with the children, but wanted that time to remain unsupervised. The mother wanted any time supervised. Ultimately I made orders that the father spend unsupervised time with the children on two occasions from 9:00am until 6:00pm but thereafter the orders of 12 April 2016 and 22 December 2016 would come back into operation.
That was the state of the orders when the trial came on for hearing before me on 13 June 2017.

Current circumstances

As at the time of the trial before me, both of the parents have re-partnered. The mother’s partner is Mr V. He has one child to a previous relationship, who lives with him and the mother each alternate week. The mother and Mr V work together.
The father, as I have indicated, has also re-partnered, with Ms W. She has no children from prior relationships. She and the father have cohabited since October 2016.
The father is not in employment, but remains in receipt of insurance payments from a disability insurer. He hopes to return to work once the trial and the stress of these proceedings has concluded. He appears to accept that in order to do so he would need to go back on to medication.
As to the children, B is in her second year of high school at X School. She foresees a future in arts, drama or teaching. She has a strong interest in dance.
C is in grade 6 at H School and appears to be doing well academically. D is also at H School, and is in grade 2. She appears to struggle to make friends and exhibits some unusual behaviours, including in the past, smearing faeces and the like. She has been diagnosed with ADHD and is medicated for it.

THE ISSUES

At the Trial Management Hearing conducted in these proceedings on 16 March 2017, with the assistance of the parties I identified the issues in these proceedings as follows:
1.What is the nature of the relationship between each parent and the children.
2.What risk, if any, does the father pose to the children, and what, if any, means are available to adequately mitigate it.
3.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.
4.What is the likely effect on the children’s relationship with the father if they were only to spend limited supervised time with him.
5.Could the party’s communication support equal shared parental responsibility.
In view of the way in which the trial proceeded, issue 4 is now more correctly expressed as “What is the likely effect on the children and their relationship with their parents of each party’s proposal.”
Once I have considered the relevant statutory provisions and legal principles, but in advance of a review of the residually relevant s 60CC factors, I shall discuss each of those issues and then go on to contemplate the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(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).
Section 61DA(1) of the Family Law Act provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)      the nature of the cause of action or defence;
(b)      the nature of the subject-matter of the proceedings;
(c)      the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

Abuse, neglect and family violence

“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The notion of unacceptable risk

Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed. The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests. Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A recent re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].
Plainly however, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

NATURE OF THE RELATIONSHIP BETWEEN EACH PARENT AND THE CHILDREN

Ultimately this did not prove to be a matter of any great controversy. Certainly it was not in dispute that the children have an excellent relationship with their mother, and obtain comfort, nurture and support from that relationship.
As to their relationship with the father, Mr J, in the second Family Report dated 2 June 2017, concluded that B “saw herself as having a very close, bonded relationship with her father, sees him as a positive influence in her life as she does her mother.” He was not challenged in relation to that evidence.
As to C, at [148] Dr J reported:
This young girl indicated that she loves her mother and father and feels reciprocated love from each…
At [161] he concluded in relation to her:
She was able to speak clearly about a very strong, loving bonded relationship between herself and her mother and father as well as an evolving relationship with the parents’ partners.
Again he was not cross-examined by reference to this evidence.
Finally, in relation to D, Dr J noted that she reported “I love seeing my daddy” although she went on to say that he struggles when he sees the children, and she knows that because he shouts at them.
Although, to an extent, the mother sought to suggest that the children were reporting better relationships with the father than they actually enjoy, because of their desire not to disappoint him, there was a telling exchange in the course of the mother’s interview with Dr J, at which Mr V was also present. In the context of discussing the effect of the mother’s proposed orders upon the children, Mr V said “they idolise [the father].” When challenged in relation to this by the mother, he continued “they do love him and they would probably experience some grief and loss if they were not to spend time with him.” I am satisfied that this is indeed an accurate reflection of the children’s relationship with the father.
It therefore follows that I am satisfied that the children have a close, meaningful and loving relationship with the father, from which they derive security and support. That is not to say that they may not, as I shall shortly discuss, on occasion experience some stress associated with spending time with him, because of his displays of anger or terseness from time to time, but nonetheless their relationship is a fundamentally sound and secure one.

RISK POSED TO CHILDREN BY FATHER

Overview

This was the central battleground between the parties. The mother contended that the father posed an unacceptable risk of harm to the children based upon three specific species of risk. The first was the risk of sexual harm based in the father’s sexually inappropriate conduct from time to time. The second was the risk that the mother may suffer some diminished parental capacity in the event that the father was to maintain a relationship with the children. The third risk was said to be one of emotional abuse, by reason of the father’s mental health and anxiety.

At the outset there are three matters that need to be adverted to in the context of the mother’s claims. The first is that the asserted risk to the children based upon the mother’s alleged diminished parenting capacity is, unlike the other two species of risk, not abuse, neglect or family violence, and hence does not need to be given greater weight than the benefit to the children of maintaining a meaningful relationship with the father. The second is that notwithstanding that distinction, nonetheless the cumulative consequences of the several asserted risks of harm to the children need to be weighed against the benefit of the meaningful relationship. Thirdly, in weighing where the best interests of these children lie, both the primary and the additional considerations need to be taken into account and weighed appropriately.

Risk of sexual harm

There can be no doubt that if the father were to sexually abuse any of the children, the prospect of them suffering harm is high, and the extent of the harm likely to be significant and long-lived. That much was not in contest before me. However what was in dispute was the magnitude of the risk that the father would act in a way to effect such harm upon the children.
It is important to note that the father has never been convicted or charged in relation to any sexual misbehaviour towards anybody, much less his three children, and there has never been any disclosure by the children of him sexually misconducting himself towards them. However the mother’s claim against the father was based upon the accumulation of a number of matters which she said nonetheless points toward the existence of the risk. In that regard her counsel provided me with 12 pages of written submissions detailing the matters which inform her opinion and concerns in this respect. It is convenient if I use that document to highlight the way in which she constructed her case. Particularly she said that the matters which informed her opinion and concerns were as follows:
1.Her personal experience of his sexual behaviour (including circumstances of their own sexual interactions and particularly the father’s extensive use of pornography during the course of the marriage);
2.Her experience of his mental health, including:
·       Risk-taking behaviours;
·       Failure to adhere to a regular medication regime;
·       The display of anger, abuse and threats during the course of the relationship and afterwards;
·       His numerous sexual liaisons with other people during the course of the relationship;
·       His lack of boundaries in a professional setting and in his personal life;
·       The fact that post-separation (and indeed pre-separation) he has had numerous casual sexual partners;
·       His tendency to inappropriately share information of a personal nature with other people; and
·       His engaging in conduct that comprises family violence during the course of the relationship, which during the course of his first Family Report interviews with Dr J, the father conceded resulted in the mother being terrified of him.
3.The experience and observations of others in relation to the father’s mental health issues, and particularly his behaviour when experiencing an acute episode of symptoms, including observations and opinions of his therapists from time to time, the police when they attended upon his home, and complaints in relation to his behaviour by others, including parents at the children’s school and members of a church where, at the time, he and the mother were attending.
4.The observations of supervisors at the R Town Contact Centre, who seem to have held the view that the father was obtaining sexual pleasure from interaction with the children, including, it seems, one supervisor believing the father had an erection during the course of some interactions with the children. As to this the father said during his cross-examination that the reason why he had a crouching posture when he stood up from having had the children on his lap was because he had a hole in his pants. I must say given that the father had previously said that he could not remember the occasion in question, that statement had an air of improvisation to it.
5.The fact that the mother cannot now trust the father in any respect, including by virtue of his undermining of the safety plan that was put in place under the 2016 orders permitting B to telephone to cease contact with the father, his misleading of the court on 12 December 2016 in relation to his then being compliant with a medication regime, and his breach of orders by permitting D to sleep in his bed on more than one occasion when she had come in to him to seek comfort during the course of the evening.
6.The content of his treating psychiatrist’s file, which demonstrates that the father has a longstanding history of anxiety, to the point on occasion being “paralysed with fear” and his lack of compliance from time to time with his medication regime. Particularly the mother relied upon the psychiatrist’s view that the father regularly involved in self-sabotaging behaviour, and the fact that the father was not compliant with her recommended medication regime.
7.The father’s occasions of demonstrating anger when the children were in his care, which caused them to become apprehensive. This anger included him using a loud voice with the children, slamming a colander down in an effort to emphasise his displeasure, and his apparent lack of any real insight in relation to the likely consequences of that behaviour upon the children.
8.The fact that the father seems to behave sometimes oddly when spending unsupervised time with the children, for instance the colander episode, and him taking the children to see his psychologist because “he thought she might like to meet them.”
9.His communication with the children when under stress shows real tension. In this regard the mother pointed to an episode involving the children needing to be consoled about a dead pet, which the father was unable to properly deal with, B’s complaints that from time to time the father’s attempts to make her feel better have exactly the opposite effect, the children’s reports in 2015 that some of the conversations they had with their father were weird, and an observation by B in 2017 that the father is short tempered and appears to be stressed.
10.The father’s behaviour with the children which from time to time, could be construed as having a sexual component to it (and certainly the mother so construes it) including the children wrapping their legs around him, the father engaging in horse play games with the children and the like.
11.Dr K’s unease about the father spending unsupervised time with the children.
12.The concerns of Dr J as to how any risk which the father posed might be properly managed.
13.The mother’s own observations and belief that the father’s compliance with the court’s orders was, on occasions, superficial at best, and on other occasions a breach of them, for instance the perhaps too loose supervision of his parents, his permitting D into his bed, his splitting the children on occasions when he has had them in his unsupervised care, with the consequent inability of the safety plan to in fact practically be invoked by B.
14.D’s recent photographs of her genitals and the fact that she says that she has a secret which she shares with the father (noting that she told Dr J that she had told the mother of the secret).
15.The father’s involving the children in the dispute with the mother, including apparently oversharing with them information relating to these proceedings, and misrepresenting to the children the likely consequences of the safety plan being invoked.
Against all this, however, the Independent Children's Lawyer emphasised that although the mother has had concerns in relation to the father’s behaviours for over five years now, and in that time the children have been seen and assessed by a range of people, including police officers, child safety officers, sexual assault counsellors, family consultants, psychologists and the Family Report writer, no disclosures of any untoward behaviour have ever been made by them. More, Dr J reported that B “was very clear she has never had any exposure to any behaviour from any individual with which she felt uncomfortable.” Likewise he reported that C “indicated clearly she has never experienced anything untoward or uncomfortable from either of her parents.” Further, B reported “I haven’t heard [C] ever mention anything” and also said “[D] hasn’t said anything either.” Counsel for the Independent Children's Lawyer emphasised that, given the age and maturity of the two older children, it is appropriate to accept and act on their statements.
Further, the Independent Children's Lawyer highlighted that the mother is prone to construing potentially benign information in a damming way against the father. Counsel emphasised the mother’s interpretation of the R Town Contact Centre notes, in which she seemed to attribute a sexual dimension to what, on the face of the notes, appears to have been ordinary interaction between the father and the children. Additionally he pointed to the mother’s interpretation of some recent nude photographs taken by D. These were taken by her in the mother’s home on an iPad which never travelled to the father’s home. Moreover there was no indication that the child had been requested to, or had sent, any of the images to the father. The mother’s explanation as to how these photographs somehow implicated the father was far-fetched, at best. She said that the child must have been emulating child pornography which she had seen in the father’s household. Not only is there no indication that the father possesses such unlawful images, but there is no suggestion that he has either shown or permitted the child to watch any such material. Whilst, of course, the fact that the child took a number of images of herself is disturbing, the mother only interprets it in a way which implicates the father. There are numerous other explanations as to why the child may have engaged in such an activity, many of which are wholly benign.
That said, the Independent Children's Lawyer did concede that, between 2009 and 2012, the father did behave in concerning ways. The most obvious is his masturbation to pornography while the children were present in the house (in a room with the door open). The Independent Children's Lawyer said that sort of conduct speaks to his lack of insight and his lack of ability to self-regulate his conduct. Moreover, counsel pointed to the fact that the father still continues to diminish the seriousness of such behaviour, and seemed unable to admit the role which his mental health likely played in such behaviour. However the Independent Children's Lawyer emphasised the historical nature of the father’s conduct, and the fact that in the five years since then, there does not appear to have been any repetition.
It is in this context that the mother’s letter which she sent the father whilst they were temporarily separated in November 2012 has some significance. In that letter she was seeking to resume her relationship with the father. In it she described him as “a great dad” and that “whatever happens I will always value beyond words your role as their dad.” She also noted that she “.. had very high expectations of you both as a dad and a husband, and a lot of the time you have met them..”
In her evidence, the mother sought to say she only said such things to appeal to the father’s ego, but I view that with some suspicion, largely because, notwithstanding his concerning behaviours, the children currently report an excellent relationship with the father, and always have.
Further, to the extent that the father may pose some risk of boundary violation, the Independent Children's Lawyer emphasised that the appropriate mitigation of that risk is by ensuring that the father remains appropriately treated and medicated if required. As to that, the father indicated that he would not oppose any order requiring him to continue to attend upon his psychiatrist, and to follow her recommendations, including medication.
I accept the submissions of the Independent Children's Lawyer in this respect. Particularly I am not satisfied that the father poses a risk of sexual harm to the children of any substance, and certainly it is not presently an unacceptable one. Further, I am satisfied that so long as the father remains appropriately treated, and if required, medicated, for his psychological ill-health, any risk which he may pose arising from his condition is thereby adequately mitigated.

Mother’s diminished parenting capacity

The mother did not run a Russell & Close argument, in that she did not say that if the father remained in the children’s lives, her parenting capacity would be diminished to a point that it would adversely affect the children’s welfare. Rather she ran her case on the basis that she would be left with residual concerns in relation to the children when they were spending unsupervised time with the father, and was likely to remain vigilant to detect any aberrant behaviour. In fairness though, the mother did not argue that this, in isolation, would justify the cessation of the father’s relationship with the children.
The highest that I am persuaded the evidence goes is that the mother is likely to remain fearful for her daughter’s wellbeing if they continue to spend unsupervised time with the father, and this is likely to cause her to feel anxious and be vigilant around occasions when that occurs. Otherwise I am not satisfied that it is likely to effect a diminution of her parenting capacity.

Emotional abuse by father

It appears clear that, from time to time, the father experiences some stress associated with spending time with the children. For instance in a letter dated 24 February 2016, his psychiatrist Dr Q noted, amongst other things:
In the last few weeks [the father] has deteriorated with regards his mental state. He is severely anxious and not functioning to his usual level. He stays in bed most days and finds it hard to concentrate and get through the day. He is not suicidal but feels he has nothing to live for apart from his children. He is “worried he will stuff everything up.” He describes intense intrapsychic pain and fear of being always different to others and being continually judged. This increase in self-loathing appears to coincide with his acquiring more custodial care of his children and his experience of the stress of this responsibility…
Certainly the children have reported that the father can demonstrate anger when he has them in his care. B told Dr J that her experience of alternate weekend time with her father was “good, but every person has their good days and their bad days.” She described the order which permitted her to telephone an adult to request that the children be removed from the father as only applying “when dad is really struggling” and indicated that both her mother and father “do yell at her” although when her father raised his voice that causes her to be scared, whereas her mother’s raising of her voice does not.
C, who appears to be perhaps a more mature girl than her older sister, observed to the Family Report writer that alternate weekend time with her father caused him to “get too stressed” but at the same time indicated that she liked seeing her father every other weekend. She indicated that when her father gets “too stressed” he will “bang on a table or go to his room and sleep.” Again she observed that there was an aspect to her father’s voice which makes her feel unsafe, and “[D] will cry on that big voice.” That said, she observed that she missed her father “terribly.”
D interestingly observed that “I love seeing my daddy” but “he struggles when he sees us too much.” When asked how he struggles she told Dr J “he yells at us.”
There is an additional component to the father’s alleged emotional abuse of the children, and that is his involvement of them in these proceedings and his oversharing of information surrounding them with the children. For instance in relation to sharing of adult issues, B told Dr J that “mum doesn’t tell us much and dad tells us a fair bit more” but on the other hand she went on to say that her father was better at providing a conducive environment for the other parent to remain in the children’s lives, specifically saying “dad talks a lot of good things about mum and the occasional bad thing about mum. On the other hand in relation to her mother “mum is always talking about dad, particularly about his mental health.”
C observed to Dr J that “mum doesn’t say many positive things but she says sort of negative things” in relation to her father. She went on to say “it sounds like she doesn’t want me to see him.” Interestingly she then went on to say “both of them are pathetic. I tuned it out. I’m trying not to listen to that stuff anymore.” Later she continued “its really obvious how they feel and both are as bad as each other.”
D observed “I don’t think my mummy likes my daddy. I think she cares for him but she doesn’t like him.”
There have been some episodes where the father has become angry with the children, the most notable of which is the colander episode. I am well satisfied that caused the children to become fearful and that the father’s display of anger was excessive.
The father identified that he believes he suffers from anxiety caused by exposure to psycho-social stressors, and that, conscious of that, he has sought to minimise his exposure to them. I am well satisfied that the litigation, and the risks which it entailed that he may be excluded from his children’s lives in the future, has been a serious and considerable psycho-social stressor for him. I am satisfied that with the resolution of these proceedings, that stressor is likely to substantially diminish. That said, the father does continue to be at risk of demonstrating anger when he is stressed, and there is no reason to doubt that he would not benefit from some professional assistance in coping with anger.
However the evidence falls far short of persuading me that the father poses such a risk of emotional abuse of the children from their exposure to his anger or adult concepts, that his time with them ought be stopped. On the other hand plainly he has struggled with the management of the children for excessive periods of time, and one means of ameliorating the prospect of him experiencing excessive anxiety or stress at caring for the children, is to have the children spending relatively shorter periods of time in his care.

Cumulative effect

It is then necessary to consider whether the combined effect of the three asserted risks renders the risk, in totality, unacceptable. To my mind the most telling evidence in this respect is that the children’s own reports to Dr J of their perception of the value of their relationship with their father. I am well satisfied that each of them experiences the relationship as warm, loving, supporting and an important component of their own identity and life. Importantly, they were all well able to identify and articulate less attractive features of both of their parents including their father, and hence I am satisfied that in reporting the value of their relationship with their father, they are not presenting some overly sugar-coated version of their experience of him. To the extent that the mother suggested that they were only saying nice things about the father because they did not wish to hurt him, or because they were scared of the consequences if they did say unpleasant things, I reject that argument, as it is inconsistent with what the children in fact said, including referencing to the father being “too stressed” and C describing both of her parents as “pathetic.”

I am therefore satisfied that the father’s time with the children should indeed be conditioned as contended for by the Independent Children's Lawyer. I am otherwise satisfied that the orders sought by the Independent Children's Lawyer are in the children’s best interests and will make them.

CONCLUSION

For these reasons there will be orders as set out at the commencement of this judgment.
There are unresolved property proceedings between the parties. These are not of sufficient complexity to warrant the matter remaining in this Court, and I will remit them to the Federal Circuit Court.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 September 2017.

Associate:

Date: 20 September 2017

[2017] FamCA 727

20 September 2017

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