Danniell & Letty
[2023] FedCFamC1F 1085
•15 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danniell & Letty [2023] FedCFamC1F 1085
File number: SYC 6309 of 2023 Judgment of: SCHONELL J Date of judgment: 15 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father sought permission to tender an expert report – Where some of the documents relied upon by the expert have not been seen by the mother – Where the Court finds that the probative value of the report is outweighed by the danger that it might be unfairly prejudicial to the mother in the sense of s 135 of the Evidence Act 1995 (Cth) – Permission to tender the report refused.
FAMILY LAW – PARENTING – Interim orders – Unacceptable risk – Where the father sought orders for time with the child – Where he has not seen the child for several months – Where the mother and Independent Children’s Lawyer opposed the father’s application – Where allegations have been made that the father has inappropriately touched the child – Where there is a potential risk of trauma and/or psychological distress if the child sees her father – Where the Court needs to act cautiously – Where the Court is not satisfied in the absence of more fulsome expert evidence that the father should spend time with the child – Application dismissed.
Legislation: Evidence Act1995 (Cth) s 135
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 68B, 69ZT, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.02, 7.04, 7.10, 7.11
Cases cited: Adamson & Adamson [2018] FamCA 523
Danniell & Mounce [2022] FedCFamC1F 531
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 102 Date of hearing: 11 December 2023 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Broun Abrahams Burreket Solicitor for the Independent Children's Lawyer: Mason Mia & Associates-Solicitors & Advocates ORDERS
SYC 6309 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANNIELL
Applicant
AND: MS LETTY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERED ON 11 DECEMBER 2023 THAT:
1.Permission to tender the expert report of Dr BB dated 19 September 2023 for the purposes of the interim hearing is refused.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
2.H born 2018 (“the child”) live with the respondent mother (“the mother”).
3.The applicant father (“the father”) spend no time with the child.
4.The mother inform the father as soon as practicable following any serious injury or illness (not including common colds, influenza and like illnesses) suffered by the child and any hospital or medical treatment required by the child.
5.The mother authorise any school attended by the child to provide the father with copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of a child attending that school.
6.All interim applications are otherwise dismissed.
7.The directions hearing listed before a Judicial Registrar on 5 February 2023 is vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danniell & Letty has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By the terms of the parties’ competing application and response, the Court was asked to determine, amongst a series of other orders, the interim living arrangements in relation to the parties’ only child H, who is currently five years of age. By the time of closure of submissions, many of the interim matters had been resolved and the primary issues left for determination were:
(1)The application of the applicant father (“the father”) that he spend time with the child on an initially supervised then unsupervised basis;
(2)The application of the respondent mother (“the mother”) supported by the Independent Children’s Lawyer (“the ICL”) that the child spend no time with the father; and
(3)The application of the mother for orders pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”).
Each of the parties’ Minute of Orders sought additional orders. I have addressed these at the end of these reasons.
The father relied upon the following documents:
(1)Initiating Application filed 25 August 2023;
(2)Affidavit of father filed 25 August 2023;
(3)Affidavit of father filed 8 November 2023;
(4)Affidavit of father filed 7 December 2023;
(5)Affidavit of Dr BB filed 9 October 2023;
(6)Notice of Child Abuse Family Violence or Risk filed 25 August 2023;
(7)Case outline document; and
(8)Written submissions (regarding permission to tender an expert report by Dr BB).
The mother relied upon the following documents:
(1)Response to Initiating Application filed 1 November 2023;
(2)Affidavit of mother filed 1 November 2023;
(3)Affidavit of mother filed 11 December 2023;
(4)Notice of Child Abuse Family Violence or Risk filed 1 November 2023;
(5)Financial Statement filed 5 December 2023;
(6)Case outline document; and
(7)A tender bundle.
All parties including the ICL referenced the Child Impact Report dated 30 November 2023 as well as the Project Magellan Report dated 28 November 2023.
Each of the parties referred to various documents contained in the mother’s tender bundle as well as documents produced pursuant to s 69ZW of the Act.
A preliminary issue for determination was the father’s application pursuant to r 7.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) for permission to tender a report of Dr BB dated 19 September 2023. The tender was opposed by both the mother and the ICL.
The Court heard submissions from each of the parties on the tender of the report. Following submissions, the Court indicated that it would not permit the report to be tendered on the current application and would deliver reasons as part of this judgment.
BACKGROUND
The father was born in 1969 and is currently 54 years of age.
The mother was born in 1975 and is currently 48 years of age.
The parties are at issue as to the nature of their relationship, with the father contending that it was a casual relationship and the mother disputing this. In any event, it is not in issue that the parties met in 2014 and their relationship broke down in early 2021. The parties never formally commenced cohabitation, with both parties maintaining their own respective homes and staying over at the other party’s place.
The child was born in 2018.
The father also has a child from another relationship who is currently 8 years of age. Pursuant to court orders, the father spends time with him on alternate weekends and for half the school holidays.
Both parties contended that the other perpetrated family violence. For her part, the mother deposed that the father perpetrated family violence against her throughout the relationship and that it included verbal abuse, sexual assault and coercive and controlling behaviour. The father denied these allegations. The father contended that following the breakdown of their relationship, the mother became verbally abusive towards him.
During the relationship, the mother had primary care and the father was significantly involved in the child’s life following her birth. It is not in issue that following the breakdown of the parties’ relationship, the father continued to have a significant role in the child’s life, which included spending substantial time on a regular basis with her.
In late 2022, the mother contended that the child started tickling the mother’s private parts whilst she was getting dressed. The mother deposed that the child told her that the father would tickle her private parts. Following this disclosure, the mother continued to facilitate time between the father and child.
The mother said she sought advice regarding how to approach the disclosure with the father from a psychologist who the parties had engaged for counselling. In early 2023, the mother said the psychologist told her to report the disclosure.
The mother subsequently reported the matter to Child Story Reporter (“Child Story”). In the same month, Child Story informed the mother that they would not be pursuing the matter any further.
In early 2023, the mother deposed that while she was getting dressed, the child started tickling her bottom again and then moved her hands into her underwear. The mother contended that she told the child to stop and that it was inappropriate to do so. She said that the child then told her that the father does it to her. The mother said she then asked the child to show her what the father does and began recording the child.
The mother said she subsequently contacted a child psychologist that she had engaged before, who told her to report the matter to Child Story. The mother said she then did this. An investigation was subsequently conducted by the Department of Communities and Justice (“the DCJ”).
On the following day, the mother said she received a phone call from a police officer who told her that they needed to speak to the child. The next day, the mother took the child to the Police Child Abuse Squad in Suburb CC. The mother contended that she was told by the police officer that she was to not allow the child to have any contact with the father. The following day, the mother said she told the father that both her and the child were unwell and that he should stay clear of them.
The father has not seen the child since this time in early 2023.
Two days later, the mother made a statement to the police.
Four days later, the mother went to the Police Child Abuse Squad again and in the presence of two police officers called the father to inform him of the disclosures made by the child. The mother deposed that the call was recorded and that the father did not dispute the allegations raised, saying instead that she should not go to the police and that they need to figure out why the child was saying this stuff. The father denied making any admissions.
On the same day, a provisional apprehended violence order (“AVO”) was made against the father for the protection of the child. The terms of the provisional AVO were such that the father was prevented from having any contact with the child.
Later that month, an interim AVO was made against the father. The father requested that he be allowed to have contact with the child. When asked by the police officer about the request, the mother agreed to vary the interim AVO. The terms of the interim AVO were subsequently varied such that the father is not to have any contact with the child unless the contact is through the mother or a lawyer, or by way of an order from this Court. The AVO proceedings are listed for final hearing mid next year.
In early 2023, the mother said that she attempted to facilitate contact between the father and child at the father’s request but that the child did not want to. She said she attempted to facilitate contact between the father and the child’s half-sibling, but the father would not agree to it.
In early 2023, the father and child had a video call. The mother contended that after about 10 minutes the child said she did not want to talk to the father anymore. She said that the child became distressed and agitated following the call. The mother said that about an hour after the call, the child grabbed her arm and attempted to pull it down to touch her private parts. The mother said that when she pulled her arm away, the child said to touch her like the father does. The mother subsequently reported this to Child Story.
The father has not communicated or had any contact with the child since this video call.
In early 2023, the mother deposed that the child discovered a message on the mother’s phone that had been sent by the father for the child. The mother deposed that the message comprised of a ‘unicorn voice emoji’ which included the father saying, “would loved to have kissed you and cuddled you and maybe give you a little tickle” (mother’s affidavit filed 1 November 2023, paragraph 58). The mother contended that after hearing this message, the child began exhibiting sexualised behaviour by again attempting to touch the mother’s private parts and saying that the father touches her there. The mother subsequently reported the child’s behaviour to Child Story. The mother contended that there have been at least nine ‘unicorn emoji’s” sent by the father.
A few days later, the mother said she was informed by the DCJ that the father would not be listed as a person causing harm but that he would a remain a person of interest, and that while they have substantiated that the child displays signs of sexual abuse, they cannot say the father was the perpetrator.
The mother contended that the father has made highly sexualised comments about the child whilst they were in a relationship. Such comments are alleged to have included the father saying that the child will be “so hot at 16, [he] will probably want to ‘do’ her” and that when she is older, he “will pretend [the child] is [his] girlfriend” (mother’s affidavit filed 1 November 2023, paragraph 86).
The father denies all the allegations made against him. The father has not been charged with any criminal offence relating to the disclosures made by the child.
On 25 August 2023, the father commenced proceedings in this Court seeking parenting orders. Part of his Initiating Application included an interim application for time with the child.
On 11 December 2023, the father’s interim application was listed for hearing before me.
REASONS FOR REFUSING PERMISSION TO TENDER AN EXPERT REPORT
The report dated 19 September 2023 relied upon by the father was prepared by Dr BB and attached to an affidavit filed 9 October 2023. Dr BB is a registered psychologist and professor of law. At paragraph 17 of her report, she identified that she had “reviewed a copy of the AVO [b]rief of [e]vidence for the purposes of preparing [her] report, including the following documents”, and thereafter listed six documents. She also identified that she had received a letter of instruction asking her to address eight questions. Her report adopted the structure of identifying each question and then providing her response.
In support of the tender of the report, the father in his written submissions said, amongst other matters, the following:
6.There are no criminal charges pending against the Father. There is a contested Apprehended Domestic Violence Order (“ADVO”) proceeding before the […] Local Court, set down for hearing in [mid] 2024. A central issue in that hearing will be the reliability of the police interview with [the child] and the evidence of the Mother as to alleged disclosure of sexually inappropriate conduct by the Father towards [the child]. It is in that context that the Expert was first engaged by the father to produce a report for the assistance of that Court.
7.The alleged “disclosure” of [the child] is a live, and significant issue in these proceedings in which the only evidence to suggest that [the child] is at any risk whatsoever from her father reposes in the Police interview and the Mother’s evidence of disclosure. The reliability of that evidence is highly relevant to the determination of whether [the child] is at an unacceptable risk in the Father’s care. The opinion of the Expert assists this Court to evaluate the things that [the child] has said and the context in which they have been said, and the resulting evidence produced by NSW Police and the Mother in support of the current ADVO proceedings.
…
15.There is no doubt that the Expert has the required expertise to provide an opinion as to the conduct of the interview between NSW Police and [the child] and [the child’s] “disclosure” more generally.
…
18.The report from the Expert has already been obtained at the cost of the Father. The Expert has had regard to the Brief of Evidence served by NSW Police for the purpose of preparing her report. The Brief of Evidence will available in due course (matter which at best goes to admissibility under s 79.
…
20.There should be no impediment to the Mother retaining her own expert in relation to this issue (should she choose to). In the event there is likely delay (and there is no evidence of that), any delay would be outweighed by the interests of justice in allowing the opinion of the Expert into evidence.
…
23.The Expert uses her specialised knowledge to comment on the interview style as “manipulative” by use of “positive reinforcement”, “priming” and at times inappropriate questioning incorporating:
a.material misstatements of facts e.g. “daddy tickles you on the front and back of your bottom”, (which was never said by [the child] but attributed to her nonetheless);
b.multiple questions and propositions, ambiguous and unclear as to what [the child] was responding to, and
c.use of lengthy convoluted syntax.
24.The Expert points out the “critical topic of tickling by Daddy was never volunteered by [the child] based on her free recall. [The Police Interviewer] suggested the topic multiple times”. At the 20-minute mark in the interview “tickling” has been suggested to [the child] 8 times. The Expert opines that recollections by [the child] during the interview were not independent and voluntary having regard to the suggestions given to [the child] and the rehearsal demonstration of tickling with her mother and the intermediary.
…
27.The Expert comments on the continued priming of [the child] throughout the interview. Of particular concern is when Police Interviewer told [the child] twice “that her Daddy tickles her on the bottom” then asked “where does he tickle you?”. The Expert opines that “having been primed with the answer right before the question, it was obvious that [the child’s] response was not an independent or freely-recalled episodic memory. Her reply simply repeated back to the authoritative adult the most recently primed and available suggestion in the four year old’s memory…Unsurprisingly [the child] complied with and acquiesced to pressure from two adults in the room seeking the response “on the bottom”.
…
31. The Father has obtained the report for the purposes of the AVO defence in which there is no scope for a single expert. In circumstances where the body of opinion is already available there is ample justification for an expert opinion from an expert, other than a single expert.
(Emphasis in original) (Footnotes omitted)
In opposing the tender of the report, the mother’s counsel submitted that the foundation for many of the conclusions reached by the expert cannot be established and thus the report was not admissible (in reliance upon the observations of the New South Wales Court of Appeal’s decision in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita v Sprowles”) and alternatively, the Court should refuse to admit the report pursuant to s 135 of the Evidence Act1995 (Cth) (“the Evidence Act”).
In that respect, the mother’s counsel identified that the expert relied upon documents in the “AVO brief of evidence”, some of which the mother has never seen, and which are not in evidence. The mother also objected on the basis that the father had failed to comply with the Rules in circumstances where the mother was not consulted nor asked about the appointment of a single expert and has had no input into the selection of the expert.
The mother’s counsel also referred to questions 3, 4, and 8, which are to the following effect:
Q3: Is a 4-year-old able to accurately report and recall such events?
Q4: Please comment on the statement given by [Ms Letty] and her report of [H’s] alleged disclosure.
a. Are mothers generally reliable sources in relation to reporting disclosures by their children?
…
Q8: ls a 4-year-old capable of feeling embarrassed?
She submitted that the answers to these questions are so general as to be irrelevant or have the potential to be misleading as they are not applicable to the subject child or mother.
The ICL supported the submissions of the mother, contending that the report was in essence an academic exercise, that it was prepared for the purposes of an AVO and not an assessment of unacceptable risk, and that it was merely an attempt to bolster the father’s position.
The father’s senior counsel in reply accepted that some of the documents the expert relied on are not available; some of which the father’s senior counsel conceded had not even been seen by the father. He submitted that the Court could nevertheless still receive the report and give the report such weight as it deemed appropriate notwithstanding what might be described as shortcomings in the report.
Discussion
The Rules set out a procedure to be adopted for the obtaining of expert evidence. The purpose of the Rules in relation to expert evidence is set out in r 7.02 to the following effect:
7.02 Purpose of Part 7.1
The purpose of this Part is as follows:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a proceeding;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness;
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.
It is uncontroversial in this application that there is no single expert nor is it controversial that the father proceeded entirely unilaterally and at no time approached the mother’s legal representatives for the purposes of appointing a single expert.
The Rules make provision for the Court to appoint a single expert on either an application or the Court’s own initiative. Rule 7.04(2) specifically provides as follows:
7.04 Order for single expert witness
…
(2) When considering whether to make an order under subrule (1), the court may take into account any matters relevant to making the order, which may include the following (without limiting the matters which may be relevant):
(a) the overarching purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 7.02);
(b) whether expert evidence on a particular issue is necessary;
(c) the nature of the issue in dispute;
(d) whether the issue falls within a substantially established area of knowledge;
(e) whether it is necessary for the court to have a range of opinion.
Pursuant to r 7.11, a party may seek permission to tender a report or adduce evidence from an expert witness. Rule 7.11(3) sets out the factors that the court may take into account in giving permission. One such factor is the purpose of the Rules in relation to experts as set out in r 7.02 (r 7.11(3)(a)).
I accept the submissions of the mother’s counsel that the failure to tender the documents relied upon by the expert in reaching her opinion would, but for s 69ZT of the Act, render the report inadmissible. In Makita v Sprowles, Heydon J observed as follows:
64. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.
…
85. In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
I accept that the common law rules as to admissibility do not apply (subject to s 69ZT(3) in parenting proceedings). It does, however, significantly dimmish the weight that could be given to the report if admitted.
It is a fundamental tenant that a party is entitled to know all the facts marshalled in a case against them. As it was observed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [p]rocedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it” (at [40]) (footnote omitted).
Here, some of the documents relied upon by the expert in forming her opinion have never been seen by the mother. In those circumstances, the mother is denied the opportunity of ascertaining whether the documents even provide a platform for the opinions expressed by the expert. In that sense, to permit the tender of the report would be procedurally unfair to the mother. The absence of the documents and the ability to ascertain whether they support the opinions also means that the probative value of the report is outweighed by the danger that it might be unfairly prejudicial to the mother in the s 135 of the Evidence Act sense.
I am also not satisfied that the father has advanced a sufficient explanation as to why the mother was not consulted about the appointment of a single expert or why a single expert was not retained if he was of the view that it was a substantial issue in the case. The Rules exist for a purpose. For the reasons given in the preceding paragraph, I am satisfied that departing from the Rules would compromise the interests of justice (r 7.02(c)).
These are the reasons why permission was not granted to tender the report of Dr BB.
WHETHER THERE SHOULD BE AN ORDER FOR TIME BETWEEN THE CHILD AND THE FATHER
The parties reached an agreement regarding the appointment of a single expert psychiatrist to prepare a report. The Court was advised that the interviews could take place in early February/March 2024 and a report would be available within four weeks. On that basis, I indicated to the parties that any determination I was going to make would cover the period between now and the matter coming back to the Court following the release of the report. For that reason, the matter is listed for further mention before me on 3 April 2024. Thus, the period in which any order would operate is approximately four months.
The father’s submissions
The father submitted that the mother’s credit was a central issue in the proceedings and was relevant to the fact and reliability of the reported disclosures of the child. The father’s senior counsel submitted, consistent with the father’s denials, that he has never touched his daughter in an inappropriate way. The father’s senior counsel recognised that the Court is required to undertake a cautious approach but that any possibility of risk could be ameliorated by supervision. The father’s senior counsel submitted that the father and child had a close and loving relationship and that he had been heavily involved in her care, including coparenting her until time was unilaterally suspended by the mother. He submitted that there was no evidence that supervised time would have a deleterious impact on the child. The father’s senior counsel took the Court through a series of allegations made by the mother about the father’s conduct during the relationship. The father’s senior counsel submitted that careful scrutiny of the evidence of the mother revealed her assertions to be untrue or inconsistent with earlier disclosures.
The father’s senior counsel observed that there is no ongoing investigation of the father and the conclusion of the Court Child Expert that the father presented as “combative, evasive, aggressive, demanding, non-flexible and as threatening” (Child Impact Report, paragraph 31) needed to be seen in the context of the father dealing with a “hideous allegation” which he strenuously denied and that “people in such situations do not always act appropriately”. Senior counsel for the father submitted inferentially that his response should not be seen as indicative of his general character.
The father’s senior counsel submitted that the DCJ’s Safety Plan dated early 2023 needed to be looked at in the context that it was a short term measure put in place while the police applied for an AVO. Senior counsel for the father relied upon the DCJ’s Closure Report dated 12 May 2023, which, after identifying the disclosures by the child, recorded:
… There is a current interim AVO protecting [the child] from unsupervised contact with [the father]. Contact is to be arranged through [the mother].
Whilst [the child] made a clear disclosure of [the father] touching her vagina, there is a lack of context as to the nature of this or that this was for [the father’s] sexual gratification. Police will not be pursuing criminal charges. There is no evidence that [the child] is at risk of immediate harm due to the conditions of the interim AVO as listed above, that contact is to be supervised. [The mother] is ensuring that this is adhered to. [The father] has also indicated that he will be seeking contact and arranging that this [sic] supervised through a service.
… A risk assessment was completed [in early] 2023 with an outcome of “low”.
(Exhibit 4)
The father’s senior counsel submitted that the mother has dishonestly represented a history for no purpose other than to build a case to prevent the father from having a relationship with the child.
The mother’s submissions
Counsel for the mother submitted that the child at five years of age is unable to protect herself and that the evidence of unacceptable risk arises from a number of sources, not just that which the mother reports.
Her counsel submitted the father’s criticisms of the mother of having built a case to prevent him having a relationship with the child is not borne out by the objective evidence. In that respect, counsel for the mother took the Court through examples of entries in the counselling notes of Ms DD, a psychologist; Ms EE, a psychologist; and Dr FF at GG Psychology, which record the mother reporting to those individuals her concerns about the father’s pattern of relating to people, including assertions that he blames others, has limited self-control, screams at the mother abusively, and bullies and threatens her.
Counsel for the mother also referred to Altobelli J’s judgment dated 27 July 2022 of Danniell & Mounce [2022] FedCFamC1F 531 in proceedings between the father and his former partner (being the mother of his older child), which records:
61.The risks to X in the father’s household are associated with the father’s personality and relational vulnerabilities. At paragraphs 230–234 Dr P states:
230.The father presented with poor insight and judgement with regard to the experience and needs of other persons, in particular the experience and needs of the other person within family or intimate relationships.
231.I observed at interview that the father showed poor reflective functioning in relation to other persons, that is a disrupted capacity to pause, to reflect upon, and to accurately appraise the thoughts, feelings, motivations and actions of others. By way of contrast, his reflective functioning with regard to his own thoughts, feelings, motivations and actions was reasonable.
232.Similarly, the father showed very poor affective empathy [ability to connect with and respond to the emotional state of the other] and deficits in cognitive empathy [ability at a rational level to understand the emotional state of the other] in relating to others, but reasonable cognitive empathy with regard to his own experience of emotion.
233.Reflecting the above disparity, the father’s narrative at interview was at times quite thoughtful and insightful, but was markedly self-referential. An example of the same was his reflection that his long {as he termed it) “adolescence” of maintenance of multiple intimate relationships with a significant component of deceit of the other, had been “taxing” for himself.
234.Reflective functioning and empathic attunement are fundamental capacities underlying good personality functioning, and underlying effective parenting.
(As per the original)
…
72.Dr Z’s affidavit was in evidence, and she was not required for cross-examination. A number of her clinical notes were tendered into evidence. The totality of all of this evidence leads the Court to find that, indeed, the father is unlikely to take steps to address the personality issues identified by Dr P because he does not acknowledge that he has any deficit in relation to his reflective functioning or empathic attunement, let alone that his parenting is lacking in these areas. This attitude of the father is consistent with Dr P’s description of him as suffering from narcissism. The father suffered from an inherent belief that his opinion about himself carried more weight than that of the single joint expert. The sense of elevation of self was evident in the cross-examination about this topic.
73.Thus, Dr P’s concerns about the father’s limited reflective functioning and empathic attunement, and how his narcissistic traits could possibly affect parenting of X are borne out by the evidence.
74.It bears reflecting on the risk that is posed to X from both his parents, in relation to parental lack of capacity. The mother’s deficits are more likely to be visible and tangibly manifested within a relatively short period of time. The father’s deficits are invisible, poorly identifiable, and their impact may take a long a time to observe. The risk presented to X by the father is more subtle. The riskiest period for X may well be as he enters adolescence and individuates.
Counsel for the mother made submissions that the Court should reject the submission of the father that the mother has “dishonestly represented history” and that the evidence demonstrates that the mother has at all times acted appropriately. Counsel for the mother submitted that upon the child’s initial disclosure, the mother did not sever the child’s relationship with the father but in fact continued to facilitate a relationship between the child and the father. It was submitted that this was conduct inconsistent with a parent seeking to build a case supportive of no time.
The mother’s counsel submitted that even supervision posed a risk to the child given the child’s response to a video call with the father. In that respect, the mother said the following in her affidavit:
53. Eventually [in early] 2023 [the child] agreed to a FaceTime call with [the father]. It lasted for approximately 10 Minutes. I was in the room for the entire call. After approximately 10 minutes, [the child] turned to me and said, “I don’t want to talk to Daddy anymore.” I observed that after the call [the child] was distressed and agitated. I found this to be unusual as she had been happy and settled throughout the day. I asked [the child] if she was okay and she said, “I am too embarrassed to talk about it”. I asked, “what are you embarrassed about?” and [the child] said, “what daddy does to me”. I tried to clarify and asked, “do you mean what you showed me a few weeks ago and you talked to […] the Police lady about?” [the child] said “yes”. I said, “I am here to keep you safe and look after you. You can tell me anything and I can help you feel better.” [The child] then requested to watch television, which she did to distract her.
54. About an hour later, [the child] and I went to the bathroom to get [the child] ready for her bath. She was agitated and fussy, not calm as she had been prior to the FaceTime call. I was standing next to her while she went to the toilet. When she was sitting on the toilet, [the child] grabbed my arm and tried to put it down to her vagina and I said, “[the child] darling, what are you doing?” as I pulled my arm away, and [the child] said to me, “tickle/touch my bottom like daddy does” as she tried to pull my hand to touch her vagina again. I said to [the child], “I won’t tickle or touch you there as that is your private area. No one should tickle or touch you there.” When I put [the child] to bed she said to me, “will you stay with me until I go to sleep?” This was unusual and not a normal request from [the child].
…
57. [In early] 2023 [the child] was looking at photos on my phone which she did every so often. While she had my phone, [the child] discovered a separate folder which had been created while at the CAS that contained a message that [the father] had sent to me [the previous month] at 6.45pm.
58. The message from [the father] was a Unicorn voice emoji (with [the father’s] voice). [The father] had wanted me to show the message to [the child], which I hadn’t. The emoji was a unicorn that said, “Hello baby girl, it’s Daddy-corn here…would loved to have kissed you and cuddled you and maybe give you a little tickle… At Annexure C is a copy of the Unicorn voice emoji sent to me by [the father] [in early] 2023.
59. I was in another room and heard the message playing so I immediately went to [the child’s] side however the message had finished by the time I got to my phone. Approximately 1-2 hours later, [the child] was in my bathroom with me. I was dressed. [The child] stood in front of me and put her hand on my vagina and said to me, “I am doing what Daddy does to me,” whilst tickling and touching my vagina. I gently moved [the child’s] hand away from me and said to her, “remember we don’t touch other people there.” [The child] said to me, “Daddy touches me there.” I said to [the child], “Daddy is not allowed to touch you there.”
(As per the original)
The mother’s counsel submitted that the Safety Plan implemented by the DCJ was supportive of the contention that there should be no time between the father and the child. She further relied upon the Court Child Expert’s observations in the Child Impact Report as follows:
16. Consideration was given regarding the current AVO conditions, the period of time since [the child] has seen her father, and the response she allegedly had following the facetime interaction in [early] 2023. It was not deemed in the best interest of [the child] to observe her with [the father] for this assessment, particularly with regard to potential risk of a traumatic response and/or psychological distress.
…
24.… The nature of [the child’s] alleged disclosure is concerning, along with [Joint Child Protection Response Program’s] substantiated risk outcome. Whilst actual harm is not substantiated, child sexualised disclosures, such as that reported by [the mother], indicate significant risk of psychological, emotional, sexual, and potential physical harm without safety planning. …
…
38. The Court may consider that a more comprehensive assessment is required, such as a Single Expert or Family Report, as well as consideration of the material from DCJ, before any considerations regarding spend time arrangements.
The mother’s counsel submitted that a combination of the father’s way of interacting as reported by her and as found by Altobelli J, the disclosures made by the child, and the child’s reaction posed an unacceptable risk of harm, and that risk could not be ameliorated by supervision.
The ICL’s submissions
The ICL supported the submissions of the mother’s counsel. She submitted that the child has no capacity to protect herself given her young age and that the Court does not know how the child may respond or deal with exposure to her father. She submitted that it is not appropriate for the child to be exposed to someone who has potentially sexually assaulted her and that there is a risk of the child being exposed to a perpetrator. The ICL relied upon the child’s responses to contact with the father as set out in the above paragraphs of the mother’s evidence. She further submitted that the father’s presentation is such that the child may not be protected from him.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Act, I set out in short form my reasons.
These were interim proceedings and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts. However, just because I am unable to determine or resolve a disputed fact and/or assertion does not mean that I ignore the allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
Primary and additional considerations
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
At this stage, the mother and the ICL make no proposal for the child to maintain a meaningful relationship with the father. The father sought orders that would permit him to maintain a meaningful relationship with the child.
As stated earlier, I am required when applying the primary considerations to give greater weight to the need to protect a child from risk and harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
I cannot ignore the allegations of risk that are raised by the evidence. Nor can I resolve the competing factual disputes, including disputes as to the reliability or otherwise of the mother, the mother’s credit, the allegations of family violence and inappropriate touching, and/or whether the mother’s allegations are designed or created for the purposes of ensuring that the child does not have a relationship with the father. I am simply unable to resolve each of these contended assertions which are matters for a final hearing. In those circumstances, I need to act cautiously.
The allegations of inappropriate touching are exceptionally serious. As the Court Child Expert recorded:
24.… The nature of [the child’s alleged disclosure is concerning, along with [Joint Child Protection Response Program’s] substantiated risk outcome. Whilst actual harm is not substantiated, child sexualised disclosures, such as that reported by [the mother], indicate significant risk of psychological, emotional, sexual, and potential physical harm …
I accept this evidence. Within the confines of this hearing, it is sufficient to establish a possibility of a risk of harm. I am satisfied there exists the possibility of a risk if the father’s orders are made, given he sought a progression of time to an unsupervised regime. As the authorities make clear, possibilities are a legitimate basis for a finding of risk.
The issue becomes whether there is a risk to the child in the event of there being supervised time. I do not know what the outcome of a supervised time arrangement between the child and the father might be. One must always be cautious in interim proceedings about unintended consequences. It is for good reason that the authorities direct judges to act with caution. I am concerned that there is a degree of risk even with supervised time.
The Court Child Expert determined that it was not in the child’s best interests to observe the child with her father because of the “potential risk of a traumatic response and/or psychological distress” (Child Impact Report, paragraph 16). Her conclusion was based upon the current AVO conditions, the period time since the child has seen her father and the child’s alleged response to the FaceTime interaction with the father in early 2023. It is not clear to me how the current AVO conditions or the effluxion of time since the child has seen her father could give rise to the Court Child Expert’s concern. However, she also based her opinion upon the child’s alleged response to the FaceTime interaction.
The mother described the child’s response following the FaceTime call as distressed and agitated, and it would appear that the child was unsettled for some time after.
I further note that the Court Child Expert identified that the Court should await the outcome of more expert evidence before “any consideration regarding spend time arrangements [is] to recommence” (Child Impact Report, paragraph 38).
I am unable to know whether or not contact between the child and the father may have the consequence identified by the Court Child Expert. However, where an expert has determined in their expert opinion that even bringing the child into contact with the father in her presence (which presumably would be a very controlled and managed environment) carried the “potential risk of a traumatic response and/or psychological distress” (Child Impact Report, paragraph 16), then an arrangement involving a supervisor must carry the same or possibly greater potential risk.
I am simply not in a position in the absence of more comprehensive expert evidence to second guess, contradict or disregard such an opinion. I will in all likelihood, however, be better informed as to those consequences, if any, when a more fulsome expert report is released.
In determining what is in the best interests of the child, I will now turn to the additional considerations so far as they are relevant.
The child is of an age where her views are not a relevant consideration.
I am satisfied that the evidence reveals that the child had a close bond with the father following her birth and that it would appear, notwithstanding the dispute between the parties, that the child has spent significant and regular time with the father. The Court Child Expert recorded that “there was no indication that [the child] has a negative idea of her father” and that the child “did not indicate any adverse emotions or responses when recalling her relationship with her father (Child Impact Report, paragraph 28). I accept the child has a close relationship with her mother. There does not appear to be any issue that each parent has taken the opportunity to be involved in long term issues in relation to the child.
The father invited the Court to have regard to s 60CC(3)(d) and the significant period of time that has elapsed since the father has spent time with the child. In that respect, I note that the father last spent any face to face time with the child early this year, being several months ago. The father’s counsel submitted that this is a matter of some significant concern.
A considerable focus for the purposes of interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and (i), calling into focus the insight and capacity of the parents to place the child’s needs above their own and the attitude of the parties to the responsibilities of parenthood.
In that respect, the Court Child Expert recorded as follows in the Child Impact Report:
34. This brief assessment reveals significant concerns for [the child’s] emotional and psychological wellbeing. The allegations regarding [the father’s] abuse of [the child] and [the mother] are serious in nature. If the allegations regarding sexual abuse of [the child], perpetrated by [the father], are found to be true, the risk of significant emotional, psychological, and sexual harm would likely be major, and lead to substantial impact on [the child’s] health and wellbeing. Allegations made by [the father] that [the mother] has fabricated sexual abuse disclosures to interfere with his relationship with [the child], is also of concern. If the allegations regarding false sexual abuse accusations made by [the mother], to interfere with the relationship between [the child] and [the father], are found to be true, the risk of significant emotional and psychological harm may be profoundly detrimental for [the child], in her ability to enjoy a relationship with her father.
35. If [the mother] is engaging in controlling [the child’s] dietary intake against the recommended nutritional requirements for a developing child, this may present a significant risk of [the child] developing an unhealthy association with food and body image. Such experiences and associations can lead to health concerns including body dysmorphia and eating disorders. The Court may consider ordering a paediatric health assessment of [the child to ensure that she is on track physically and nutritionally.
Within the context of these proceedings, I am simply unable to resolve the competing assertions and otherwise note that I must act cautiously.
In Mulvany & Lane (2009) FLC 93-404, the Full Court constituted by May and Thackray JJ stated as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
I am satisfied on the material before me that the primary consideration of the need to protect the child from a risk of harm is the most pressing and prevailing consideration and overwhelms any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3).
This is a case all about risk. There is an extremely poor coparenting relationship, a high level of distrust, and allegations of family violence and inappropriate touching.
Consistent with the obligation to act cautiously for the above reasons, I decline at this stage to make orders for the child to spend any time with the father.
OTHER ORDERS SOUGHT
The mother sought orders pursuant to s 68B in circumstances where there is an interim AVO hearing in mid-2024 which may lead to the dismissal of the orders made on an interim basis. In circumstances where this matter will be before the Court before the determination of the interim AVO hearing, I decline to make the order sought by the mother.
The father sought an order for equal shared parental responsibility. The Minute of Orders sought by the mother and ICL were silent as to parental responsibility. No party made any submission on the issue. I am not satisfied that it is appropriate at this stage, in the absence of submissions, to make any orders as to parental responsibility.
The ICL sought orders that the parties undertake courses as recommended in the Child Impact Report. No party made any submissions about the appropriateness or otherwise of such courses. In the absence of submissions, I do not propose to impose such an order on either party.
The form of orders sought by each party envisages the child living with the mother and in those circumstances, I propose to make such an order. The mother sought orders that the father be informed about various matters relating to the child’s health and schooling and accordingly, I will make orders in terms of paragraphs 13 and 14 of her Minute of Order (Exhibit 2).
I otherwise will dismiss all interim applications.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 15 December 2023