Eastley and Eastley (No. 2)

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FAMILY COURT OF AUSTRALIA

Eastley & Eastley (No. 2) [2020] FamCA 997

File number(s): CAC 1729 of 2020
Judgment of: GILL J
Date of judgment: 1 December 2020
Catchwords: FAMILY LAW – CHILDREN – exercise of the discretion to apply the opinion rule in child related proceedings – interim arrangements for children pending completion of report by single expert – expedited trial – no interim dispute about children living with the mother – where children have not spent any time with the father since shortly after separation – whether father presents unacceptable risk of harm to the children – risks of sexual assault or trauma associated with exposure to the father – risk that children will be unnecessarily deprived of relationship with the father – where the evidence is incomplete and untested – where the same risks do not apply to the same extent to both children – where the risks to one child are nullified by supervised time
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2)(b), 60CC(2A), 60CC(3)(b), 60CC(3)(f), 60CC(3)(j), 61DA(2), 65DAA,

Evidence Act 1995 (Cth) 69ZN, 69ZT(1), 69ZT(3), 69ZT(3)(b), 76, 77, 79, Division 12A
Cases cited:

Amador & Amador (2009) 43 Fam LR 268

Baker v R (2004) 210 ALR 1

Johnson & Page [2007] FamCA 1235

Jollie & Dysart [2014] FamCAFC 149

M v M (1988) 166 CLR 69

Maluka and Maluka (2012) 47 Fam LR 272

Marsden & Winch (No 3) (2007) FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

N & S and the Separate Representative (1996) FLC 92-655

Phillips & Hansford [2019] FamCAFC 165

Sahrawi & Hadrami [2018] FamCAFC 170

SS & AH [2010] FamCAFC 13
Number of paragraphs: 129
Date of hearing: 19 November 2020
Place: Canberra
Counsel for the Applicant: Ms M Davis
Solicitor for the Applicant: Alliance Legal Services
Solicitor for the Respondent: Dobinson Davy Clifford Simpson
Solicitor for the Independent Children's Lawyer: Legal Aid, ACT

ORDERS

CAC 1729 of 2020
BETWEEN:

MR EASTLEY

Applicant
AND:

MS EASTLEY

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

1 DECEMBER 2020

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.The children X (born … 2017) and Y (born …2019) (the children) shall live with the mother.

2.Y shall spend time with the father supervised at the expense of the father by either B Contact Centre or D Contact Centre from 9.00 am to 11.00 am each Tuesday, Thursday and Saturday.

3.The parties are at liberty to vary the times of, duration, and frequency of Y’s time with the father, by agreement in writing.

4.It is noted that the orders in relation to the parties pursuant to the Family Violence Act 2016 (ACT) make specific provision for contact between the parties in relation to facilitating contact handover and these orders do not vary the operation of the Family Violence Order.

5.Expedition is granted to this matter and it is listed for trial to commence on … 2021. 

6.The matter is listed for trial directions at 9 am on 10…

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Details
Case
[2020] FamCA 997
Decision Date

CaseChat Overview and Summary

In *Eastley and Eastley (No. 2)*, Gill J of the Family Court of Australia considered interim arrangements for two children, X and Y, pending the completion of a report by a single expert. The dispute centred on the extent to which the father should have contact with the children, given allegations of sexual abuse and family violence made by the mother, which the father largely denied. The children had not spent time with the father since shortly after the parties' separation.

The court was required to determine whether to grant supervised time between the father and the children, and if so, on what terms. This involved assessing the risks of harm to the children, particularly concerning sexual assault or trauma associated with exposure to the father, against the potential benefits of maintaining a relationship with him. The court also had to consider the differing circumstances and potential risks to each child, acknowledging the incomplete and untested nature of the evidence at this interim stage.

Gill J applied the principles governing interim proceedings in family law, emphasising that the court must weigh probabilities and the likely impact on children when evidence is contested. The paramount consideration was the best interests of each child, as mandated by section 60CA of the *Family Law Act 1975* (Cth), and assessed by reference to relevant factors under section 60CC. The court acknowledged that while supervised time might mitigate some risks, it could still cause disturbance. Ultimately, the court found that for child X, the risk of traumatisation from contact with the father outweighed the potential benefits, even with supervision. However, for child Y, the risks were mitigated by supervised time, and the potential benefits of a meaningful relationship were deemed to outweigh the risks.

The court ordered that the children live with the mother. Additionally, child Y was to spend supervised time with the father at a contact centre, at the father's expense, on specified days and times. The parties were granted liberty to agree in writing to vary these arrangements.

Orders

Orders of the court

ORDER MADE BY:

GILL J

DATE OF ORDER:

1 DECEMBER 2020

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The children X (born … 2017) and Y (born …2019) (the children) shall live with the mother.

2. Y shall spend time with the father supervised at the expense of the father by either B Contact Centre or D Contact Centre from 9.00 am to 11.00 am each Tuesday, Thursday and Saturday.

3. The parties are at liberty to vary the times of, duration, and frequency of Y’s time with the father, by agreement in writing.

4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

These are matters that fall within the primary considerations, as they relate to risk of harm and the benefits of meaningful relationship with the father.The evidence in relation to risk The mother relied upon a suite of matters as being indicative of risk posed by the father. Each was the subject of criticism by the father including, but not limited to, the concern that the matters had only been considered by the mother through a lens focussed upon the explanation of sexual abuse, rather than being assessed neutrally. It should be observed that the mother also describes conduct on the part of the father during the relationship that, if established, could fit the description of family violence, as threatening, controlling and coercive. The parties are currently litigating in relation to a family violence order in the Magistrates Court of the Australian Capital Territory. This aspect of the case was not the subject of focus during the interim hearing. Such an approach was understandable given the narrow issues in dispute at the interim hearing insofar as they relate to whether or not supervised time should take place. The mother also raised issues relating to the father’s capacity, which again were properly not the focus of proceedings that concern whether or not limited supervised time should occur.Incidents It is helpful to set out a number of the matters relied upon by the parties, even if not in an exhaustive manner at this interim stage of the proceedings. Although the father agrees that a number of the incidents that the mother alleges occurred, where he does, he denies the sexualised connotation attributed to such by the mother. The mother describes that from February 2020, X started to take his clothes off, and to play with his penis. She says that from April 2020, X exhibited poor sleep, regression in toileting and tantrums. She experienced difficulties in leaving X, X screaming and begging to go with the mother. The father accepts that X would take his clothes off and play with his penis. The father also accepts that X has trouble sleeping, describing that he would, on occasion, co-sleep with X. The mother also describes Y, from April 2020 experiencing a decline in her sleeping patterns, and reluctance to go to the father. Unlike with X, the mother says that she has not been concerned about Y’s behaviour since separation, saying that she appears to be thriving. However, the mother’s mother reports that on 11 July 2020 (shortly prior to the separation of the parties on 27 July 2020) that she observed an interaction between the father and Y. The maternal grandmother says as follows at [7]:Later that night (11 July 2020) I was assisting Mr Eastley with the kids while Ms Eastley was at a sports class. Mr Eastley called me into Y's room so he could show me how he changed her nappy. When I entered the room, Mr Eastley was standing over Y with a fresh nappy open underneath her. Before closing the fresh nappy, Mr Eastley placed the heel of his hand on Y's vagina (mans) and moved his palm side to side and said "She likes it". Before I could comment, X came into the room.

Decision

Reasons for decision

However, there are aspects of each of their cases that point to significant involvement in the children’s lives until separation, for example in the shared arrangements seen to be in place whereby it was expected that the father would care for X while Y and the mother were swimming, and where the father took on responsibility in relation to aspects of X’s sleep arrangements. These point to an inference that there was, during the relationship, some acceptance of the benefits of meaningful relationship with the father.The interim conclusion There is no neutral conclusion available on an interim basis, in the sense that while orders for the father to spend no time with the children may be perceived as protective against risk, at the same time such orders run the risk of removing relationship that is legitimately for the benefit of the children. Further, the mere fact of supervision does not necessarily deal with the suite of risks raised, as was observed in M v M:The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. [emphasis added] At the same time, the court, in determining the question of best interests is required to weigh both the risks and benefits in a balance. Again as was said in M v M:In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. In striking that balance, it is important to bear in mind the primacy of the consideration relating to the protection of a child from physical or psychological harm arising from abuse at s 60CC(2)(b). The balance is to be struck differently for X and Y as the evidence speaks differently to the circumstances of each. In X’s case, while the risk of sexual harm is nullified by professional supervision, the risk of traumatising him by exposing him to the father outweighs the potential benefits of spending time with the father. This is an interim determination, made on contingencies rather than ultimate findings, and without the benefit of evidence from the single expert, which may speak further both to benefits or to risks of traumatising. In Y’s case, the risk of sexual harm is nullified by supervised time. She does not present in the manner of X as to traumatisation, and in her case the potential benefits of meaningful relationship outweigh the risks associated with trauma.

Ratio Decidendi

Legal Principle Established

An initial contest arose as to whether the application for supervised time should be adjourned to be considered following the release of the expert’s report, anticipated as likely to occur after Christmas. The report may throw greater light on the matter. The current absence of the report will call for careful awareness of the limitations on the current interim proceedings. However, the absence of the report is not such as to warrant the delay of all consideration of the children’s time with the father, where they have not seen him for about five months, and where the issue of time can, if necessary be revisited on the release of the report. The nature of interim proceedings, consideration of best interests and the approach to risk In interim proceedings, the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests. As outlined in SS & AH [2010] FamCAFC 13 at [81], it is necessary to: keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made. As stated at [100] of SS & AH, despite this limitation: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. The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA. In order to determine what is in a child’s best interests, the Court is required to consider the s 60CC considerations to the extent that they arise in a case. In Phillips & Hansford [2019] FamCAFC 165 at [43], Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”. Rather, their Honours said that “[o]nly those that are in issue in the proceedings require detailed consideration”. The Full Court noted in Jollie & Dysart [2014] FamCAFC 149 at [49] and [50] that:What the Act mandates is a “consideration“ — a mental process of analysis — that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child involved……Yet, neither s 60CC nor any other section or Part of the Act requires a judge’s reasons to deal seriatim with each of the s 60CC considerations. Indeed, doing so can sometimes obfuscate the matters which are judged, properly, to be central to the ultimate determination of a child’s best interests and the orders which best meet them.