DEAKES & DEAKES
[2015] FamCA 208
•29 January 2015
FAMILY COURT OF AUSTRALIA
| DEAKES & DEAKES | [2015] FamCA 208 |
FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – allegations of sexual abuse – order that children live with the mother and spend supervised time with the father – restraining orders
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Deakes |
| RESPONDENT: | Ms Deakes |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
| FILE NUMBER: | HBC | 810 | of | 2014 |
| DATE DELIVERED: | 29 January 2015 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 29 January 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stranger |
| SOLICITOR FOR THE APPLICANT: | M+K Dobson Mitchell Allport |
| COUNSEL FOR THE RESPONDENT: | Ms White |
| SOLICITOR FOR THE RESPONDENT: | Fitzgerald & Browne |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bearman Legal Aid Commission |
Orders
UNTIL FURTHER ORDER
BY CONSENT B born … 2009 and C born … 2011 (“the children”) live with the mother.
BY DETERMINATION the children spend time with the father as follows:
(a)on dates and times as directed by the Hobart Children’s Contact Service; and
(b)any other time.
The parties shall contact the Children’s Contact Service within twenty four (24) hours and thereafter attend all assessments and interviews as the service directs.
BY CONSENT neither party criticise or denigrate the other party or members of the other parties family in the presence or hearing of the children.
BY CONSENT neither party discuss these proceedings with the children.
BY CONSENT the mother ensure the children continue any psychological or medical treatment they are currently undertaking.
BY DETERMINATION both parties be restrained from discussing these proceedings, either directly or indirectly, with Mr D except to say that if he wishes to make a statement to be used in these proceedings he should make that statement through the Independent Children’s Lawyer.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS REQUESTED
The Independent Children’s Lawyer shall contact Mr D and inform him of the direction set out in order 7 above and the requirement that any statement he makes will be through the Independent Children’s Lawyer.
IT IS FURTHER ORDERED
BY CONSENT Mr E be appionted as an expert for the purpose of this hearing in accordance with the terms of reference handed to me, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.
IT IS DIRECTED
The Independent Children’s Lawyer forward to my associate an electronic form of the minute of order in word format within one (1) business day.
IT IS FURTHER ORDERED
These proceedings be listed for mention at 9.00am on 20 May 2015 at Hobart.
On 20 May 2015 the parties shall provide the Court with a list of all witnesses they wish to call for the final hearing and the mother has available a list of treating medical practitioners she wishes to call together with details as to when their reports will be available.
Leave be given to the parties to apply to have the matter relisted before me on the giving of seven (7) days notice to the Court and to the other parties.
IT IS NOTED
These proceedings will be listed for hearing in November or December 2015 having regard to the school commitments of one possible witness.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Exhibit “1”
BY CONSENT IT IS ORDERED
Pursuant to Division 15.5.2 of the Family Law Rules, 2004, [Dr E], Psychologist, of …, Tasmania be appointed as the Court Expert ("the Expert") to inquire into and report on matters concerning the parents [MR DEAKES] and [MS DEAKES] and the children [B] born … 2009 and [C] born … 2011 (“the children”) including the following;
The parties mental and emotional health; whether either of the parties suffer from any psychological or psychiatric condition, disorder or illness and, if so:
(a)What that condition, disorder or illness (the condition) is?
(b)Whether the condition affects the capacity of the parent (as appropriate) to provide adequately for the child's physical, emotional and psychological needs.
Whether having considered the assessment required in relation to paragraph 1 of these terms whether in the view of the Expert, there is an unacceptable risk that the child/ren will be exposed to abuse or neglect.
An examination of the alleged disclosure/s made by the child/ren of a sexual nature perpetrated upon the child/ren by the Father (“the disclosures”), including an assessment as to the integrity of the disclosures and whether there is other material or evidence which may support or refute the proposition that the child/ren has been subjected to indecent assault and/or abuse.
Whether having considered the assessment required in relation to paragraph 3 of these terms whether in the view of the Expert, there is an unacceptable risk that the child/ren will be exposed to abuse or neglect.
The attitude of the Mother and the Father to the disclosures made by the child/ren.
Subject to the answer to paragraph 3, an assessment of the extent to which the mother's capacity to parent the child/ren is affected, if at all, by the alleged disclosures.
Subject to the answer to paragraph 3, an assessment of the extent to which the father's capacity to parent the child/ren is affected, if at all, by the alleged disclosures.
Having taken into account the disclosures of the child/ren, whether there is any direct or indirect risk to the child/ren of being subjected to (whether directly or indirectly) acts of abuse or indecent assault or any act of a sexual nature by the father if his time with the child/ren were unsupervised.
An assessment of the relationship as between the parents with direct reference to their respective attitudes towards each other, and whether these have any detrimental and/or other relevance to their respective capacities to provide for the needs of the child.
Whether the lack of time spent with the Father has had an effect on the child/ren’s bond with him and whether either party by act or omission has contributed to that and if/when time with the Father is recommenced any recommendations to re-establish the relationship between the Father and the child/ren.
The following matters (unless already considered in the preceding paragraphs);
(a) the nature of the relationship of the children with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(b) the extent to which each of the children's parents have taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the children; and
(ii) to spend time with the children; and
(iii) to communicate with the children;
(c) the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children;
(d) the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from:
(i) either of her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom they have been living;
(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the children's parents; and
(ii) any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the Expert thinks are relevant;
(h) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;
(i) any ill treatment, family violence or other abusive behaviour that has been or is directed towards either of the parents, a member of the children’s family, extended family or other significant person and the likely impact of this upon either:
(i) the parental capacity of either of the parents.
(ii) the other person.
(iii) the children.
(j) Any other fact or circumstance the Expert considers relevant.
The appropriate terms of any parenting Order.
Pursuant to section 102A of the Family Law Act that the Expert be permitted to examine or assess the children.
The Mother and Father do all such things and sign all necessary documents as are necessary to authorise the Expert to examine any medical record in relation to them and to discuss them with any person whom the Expert requires.
The Mother and the Father will do all such things requested by the Expert for the purpose of conducting the assessment including attending upon other health professionals as directed by him.
The Expert may interview the parties and any other person the Expert deems appropriate for the purposes of preparing the report, and the parties shall do all such things necessary to comply with the reasonable directions of the Expert to facilitate such interviews.
Each of the parties provide to the Expert through the Independent Children’s Lawyer a general authority allowing the Expert to access all relevant medical, police, psychiatric, psychological, education and other files touching on either of the parents or the children.
If requested by the Expert, the Independent Children’s Lawyer organise dates, times and locations to enable the Expert to conduct interviews as contemplated herein.
The Independent Children’s Lawyer, after providing a copy of same to the parties, be at liberty to provide to the Expert a brief of the facts and circumstances giving rise to these Orders.
The Independent Children’s Lawyer make available to the Expert such documents that the Independent Children’s Lawyer considers appropriate including but not limited to all Court documents, subpoenaed material and other information as requested from time to time by the Expert.
The Independent Children’s Lawyer be granted leave to copy all subpoenaed material produced to the Family Court for the purpose of providing the copied subpoenaed material to the Expert.
Leave be granted to the Expert to inspect and copy all material produced to the Family Court pursuant to subpoenas issued in the proceedings.
Leave be granted to the Independent Children’s Lawyer to provide to the Expert a copy of any Report prepared by health professionals in relation to the parties and/or the child/ren and the Expert be at liberty to communicate with those health professionals directly.
The Expert provide a report and affidavit, together with four copies, to the Registrar of the Family Court of Australia at Hobart as soon as practicable.
The costs of the Expert be borne by the Legal Aid Commission of Tasmania at first instance and it is noted that the parties may need to reimburse the Legal Aid Commission of Tasmania.
The report produced by the Expert may not be released to any other person, except to the parties treating psychologists or any Chairperson of an Independent Children's Lawyer’s Conference, or used in any other proceedings save with the leave of this Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Deakes & Deakes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 810 of 2014
| Mr Deakes |
Applicant
And
| Ms Deakes |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings between Mr Deakes (‘the father’) and Ms Deakes (‘the mother’) relating to parenting arrangements for their children, B, born in 2009, currently aged about five and a-half, and C, born in 2011, shortly to celebrate her fourth birthday. The issue for me today arises out of an interim application by the father that he spends supervised time with the two children. An Independent Children’s Lawyer has been appointed.
The respective positions of the parties at the present time is, firstly, that the father seeks orders that he spend supervised time with the two children at the Hobart Children’s Contact Service as soon as is practicable. The mother’s view is that the children ought not to spend any supervised time or any time with the father until such time as a report from a forensic psychologist, Dr E, is in place and perhaps until such time as there has been further investigations into allegations that one, if not both of the children are at risk of being abused sexually by their father. The Independent Children’s Lawyer’s view at this stage is that B should spend supervised time with his father but that until Dr E’s report is provided that C should not spend time with the father.
This is a matter which is being dealt with under the Magellan protocols of the Court and as such, will be moved towards a final hearing as soon as is practicable. The issue for me, of course, is what should happen for the time being. The Independent Children’s Lawyer prepared a chronology which appears to have been accepted by the parties.
BACKGROUND
In terms of the background, each of the parties is aged 42, although each will celebrate their 43rd birthday this year. The mother had been in a previous relationship with Mr D and there are two children of that relationship, F, aged 17, who turns 18 this year, and G, who is aged 15 and turns 16 this year.
Each of the parties was represented in these proceedings. The father and mother commenced cohabitation in 2007 and married in 2008. The mother complains that the father has read and reads or watches some form of pornography. She says the father was involved in a serious motor vehicle accident in 2011. The mother says that B has problems in terms of toileting since May 2013 but some other notes from the sexual assault counsellors note that this may have been from 2012. This, of course, will be a matter for determination as to firstly what the meaning of it is; and secondly the providence of it in the final hearing.
The parties separated in August 2013 and the father spent regular and unsupervised time with both children in various ways, including overnight time. At the commencement of 2014 or perhaps even as early as November 2013, C complained about irritation of or soreness in her vagina. The mother had this examined and it was diagnosed or possibly diagnosed as a normal concern for a child of that age. The mother clearly, at that stage, commenced having views of the father in terms of him being a possible sexual abuser.
Between 8 and 10 August 2014, the children spent time with the father. He has not spent any time with the children nor have the children spent time with him since 10 August 2014. The father’s case is that it was a happy, pleasant and unremarkable weekend in terms of the time that he spent with the children at his parents’ home and other people attended. The mother asserts that when C returned home, she made disclosures about the father’s conduct and she reported those to the police. The Police and Child Protection Agency investigated those matters. The father participated and engaged in those processes. Neither the Police nor Child Protection Authorities intend to take the matter any further.
Of course, that is not the end of it in terms of a family law proceeding. My task is generally to look at the facts and consider whether either one or both of the children are at risk of sexual abuse in the future. There is an issue about the consistency of the story told by the mother. I raised that with her counsel but I give that no weight in terms of the determination at the present time. That may well be a matter for final hearing as to what weight, if any, I ought to give any possible changes.
Since that time, the children have engaged with the Sexual Assault Services, although B has missed three appointments in 2015. The mother has a history of anxiety which she discloses in her evidence by way of the report from her general practitioner which is disclosed in a report from Dr H, a treating psychiatrist. What I make of that, I do not know at this stage. The father’s case is that the mother struggles in her parenting and his assertion or his case is that I should assume that the allegations which the mother raises are either false or a misinterpretation. The father adduces some evidence which he says is indicative that the mother is schooling or inducing the children or at least C to make false claims against him.
These proceedings were commenced on 31 October 2014 and the parties have instructed Dr E to prepare an independent report in relation to the subject matter and I will be making consent orders to that end later today. Each of the parties has filed their own affidavits and affidavits from members of their families and friends and relatives supporting their various positions.
As I said to them at the start, it is not my task in an interim hearing and perhaps even not my task in a final hearing to make findings of fact as to the abuse. My task is to consider whether either one or other of the children are at risk of sexual abuse into the future. My task is to consider at this stage whether one or both of the children or neither of them spend supervised time with the father. It is clear that the only order sought at the moment is in relation to that supervised time.
Of course, Dr E will not understand the nature of the current relationship between the father and the children as it is not presently occurring. Dr E will have all of the material I have and will have the opportunity of interviewing the parties and the children. In terms of the allegations, I am not sure that Dr E will be able to provide too much to the Court, given that the child has been asked about this by her mother, police officers, officers from the Sexual Assault Service and perhaps officers from the Child Protection Authorities.
The other issue to which I have to turn my mind is how the mother will cope with any such order made by me. I suspect the mother will have difficulty coping, whether there is an order made today, tomorrow or in a few months time. It will not become any easier for her, given the material set out by her doctor, herself and the psychiatrist. I do not think it will make a huge difference to her whether it is either B or C or both. I am concerned about the approach of the Independent Children’s Lawyer that only B should go and I wonder how that will impact upon C if she is kept away from her father and the idea that children do not talk to each other about what goes on with their lives, even at that age, is frankly a nonsense. Children talk and exchange ideas and what they make of it, I do not know.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
The provisions of the Family Law Act that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(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).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. 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. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which 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 and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I have had regard to these principles.
The approach in deciding a case involving an allegation of sexual abuse was considered by the High Court in M and M (1988) FLC 91-979. At page 77,080, the High Court said:-
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court recognised though that findings on the question of sexual abuse will have an important, perhaps a decisive impact on the resolution of the ultimate best interest’s issue.
As to the relevant standard of proof, the High Court comprising of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, emphasised that a judge should not make a positive finding that the allegation was true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336.[1] Their Honours cited the well-known passage of Dixon J (at p.362 of Briginshaw):-
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[1] M and M (1988) FLC 91-979 at 77,081.
In a subsequent case of S and R (1999) FLC 92-834 the Full Court of the Family Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” was needed, given the maker of the statement was a child who was not subjected to cross-examination and whose statement was incapable of being properly tested.
In the decision of Johnson and Page [2007] FamCA 1235 the Full Court considered the applicable standard of proof. At paragraph 69, the court cited with approval the approach taken by the Honourable John Fogarty in his paper entitled ‘Unacceptable Risk – A Return to Basics’ ((2006) 20 AJFL 249). In particular, the Court said (at para 72):-
We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
These proceeding were governed by the provisions of Division 12A of Part VII of the Family Law Act (‘the Act”). Section 69ZT provides that some provisions of the Evidence Act do not apply. However, s 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) does apply and it provides:-
(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; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
I must then consider the allegations of sexual abuse on the balance of probabilities taking into account the matters in s 140 of the Evidence Act.
In M and M, (supra) the High Court acknowledged there would be many cases in which it was not possible for a judge to make a positive finding that sexual abuse had taken place. He or she would then need to determine if there was a risk of sexual abuse, and assess the magnitude of that risk.
The Court went on to consider the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court should not grant custody or access (now an order in relation to with whom a child will live, or spend time), if it would expose the child to “an unacceptable risk” of sexual abuse.
In B and B (1993) FLC 92-357 the Full Court referred to the “unacceptable risk” test in M and M, and added (at p. 79,778):-
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In the Full Court decision of Napier and Hepburn (2006) FLC 93-303 the question of unacceptable risk was considered by Bryant CJ, Kay and Warnick
JJ. Their Honours Bryant CJ and Kay J said:-
79.The determination of whether the child may have been abused required some assessment to be made as to the father’s credit in relation to his strenuous denials that he has acted inappropriately with the child. The child’s evidence itself was incapable of being tested or necessarily being accurately interpreted. His Honour said that he was unable to reject the allegation as groundless. In doing so, he must by necessary implication have rejected the father’s strenuous denials, but nowhere does he explain why he has done so.
…
84.There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
99.Absent there being any reason not to accept the father’s denials, we are not persuaded that the evidence reasonably leads to a conclusion that unsupervised contact poses an unacceptable risk of harm to J.
Their Honours also said: -
82.What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.
The determination of unacceptable risk exists remains a challenge for the trial judge.
In a decision of Brown J in McCoy v Wessex [2007] FamCA 489 Her Honour set out the legal principles involved in relation to allegations of sexual abuse.
Her Honour reviewed the law relating to unacceptable risk including the approach adopted by the Full Court in Napier and Hepburn (above) and Potter v Potter [2007] FamCA 350 and observed that:-
The Full Court noted (at para 79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding to the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
In this case I need to determine whether there is an unacceptable risk to the children if they were to spend unsupervised time with the father.
As to guardianship, neither party seeks a change in relation to s 61C, that is, that each parent has several parental responsibility, as distinct from equal shared parental responsibility. Given the current circumstances and the reality that the decisions made about the children are being made by the mother, that seems an eminently sensible approach, and that will be a matter for me to later consider on a final hearing.
I will also be making the consent orders not to denigrate and not to discuss the proceedings. I will restrain the parties from discussing the proceedings with the mother’s elder children, and if the adult child, when he becomes an adult is to give evidence, it should be through the Independent Children’s Lawyer and not through the mother, and I will invite the Independent Children’s Lawyer to inform that child of that order so that he knows what the position is. The parties should not take this as an encouragement for that child to be called.
I do not know what to make of the second hand evidence provided by that child’s father. I always struggle when a child of one or other of the parties gives evidence during the course of a proceeding, because it can have the impact of alienating the child from one parent or the other, so I don’t encourage that course, but if the evidence is called, it ought to go through the Independent Children’s Lawyer.
A significant number of documents were tendered in evidence, and I have read those parts of the documents to which I have been taken. In terms of the father, I have had regard to his application commencing proceeding and, his amended application initiating proceedings filed in court today. Although I add that the father’s intent or desire to see the children or for the children to see him through the Children’s Contact Service is not a fresh notion. It is something of which the mother was fully aware some time ago and to which she resisted. The fact that the mother resisted that has had no bearing on this decision, particularly given that most parties, when they strike issues like this, struggle to deal with it in various ways.
The father relies on:-
(a)his affidavit filed 31 October;
(b)the affidavit of Ms I filed 1 December 2014;
(c)the affidavit of the paternal aunt, Ms J, filed 1 December 2014;
(d)the affidavit of the paternal grandmother, filed 31 October 2014;
(e)the documents on subpoena to which I have referred to earlier; and
(f)the affidavit of Mr K, filed 1 December 2014.
The mother relied upon:-
(a)her response filed 9 December 2014;
(b)Notice of Risk of Abuse filed 9 December 2014,
(c)her affidavit filed 9 December 2014,
(d)the affidavit of Mr L filed 9 December 2014,
(e)the affidavit of Ms M filed 9 December 2014,
(f)the affidavit of Ms N filed 9 December 2014; and
(g)the affidavit of Ms O filed 9 December 2014.
There is no issue, as I said, that the children should, at least at this stage, live with the mother. There is an issue as to whether they ought to have time with the father. The course adopted or suggested by the Independent Children’s Lawyer is a very cautious approach. It has the effect, however, of separating these two children in the circumstance where they may have either rightfully or wrongfully been separated from their father.
I do not know and cannot make findings as to that. I am not convinced that the children will be at an unacceptable risk of emotional harm in seeing the father together at the Children’s Contact Service, Hobart. I am aware of the processes in place at that Contact Service, and there is no risk, in my view, or no unacceptable risk that the children will be harmed or affected in that circumstance. The child, C, we have yet to hear from her counsellor, although there has been material referred to me in relation to that child’s engagement with that service. The child C has missed one appointment in January. B has missed at least three appointments.
I do not know what to make of the missing of those appointments, and I make no criticism either way in respect of it. Given those circumstances and given the history of this matter, I intend to make orders for supervised time, commencing as soon as practicable at the Hobart Children’s Contact Service.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 29 January 2015.
Associate:
Date: 29 January 2015
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