FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Emmett & Boon [2023] FedCFamC1F 620
File number(s): BRC 11127 of 2018 Judgment of: BAUMANN J Date of judgment: 28 July 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother contends for final orders that the children spend no time with the father – Assessment of risk – Where the father was convicted of possessing child exploitation material and faced other serious criminal charges – Where supervised time has continued since 2018 – Whether the mother’s parenting capacity will diminish if even supervised time continues Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA,65DAA Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Blinko & Blinko [2015] FamCAFC 146
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Goode & Goode (2006) FLC 93-286
Helbig & Rowe and Ors [2016] FamCAFC 117
Isles & Nelissen [2022] FedCFamC1A 97
Jones & Dunkel (1959) 101 CLR 298
Keane & Keane [2021] FamCAFC 1 (2021) 62 Fam LR 190
Moose & Moose (2008) FLC 93-375
Russell & Close [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 95 Date of hearing: 8 – 10 and 27 June 2022 Place: Brisbane Counsel for the Applicant: Ms S Downes Solicitor for the Applicant: KLM Solicitors Counsel for the Respondent: Mr J Linklater-Steele Solicitor for the Respondent: Naughton McCarthy Family Lawyers Counsel for the Independent Children's Lawyer: Ms R Horsley Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 11127 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EMMETT
Applicant
AND: MR BOON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
28 JULY 2023
THE COURT ORDERS:
Parental responsibility
1.That the mother have sole parental responsibility for the major long term decisions in relation to the children, X born 2016 and Y born 2017 (“the children”).
2.That the mother be restrained from:
(a)changing the names of the children;
(b)relocating the children primary place of residence to a location located more than one (1) hour’s drive from B Counselling,
without the express written agreement of the father.
3.That the children live with the mother.
4.That the children spend time with the father at all times as may be agreed in writing between the parents, but failing agreement as follows:
(a)from the date of these Orders (and noting the children are currently spending time with the father each alternate Sunday at B Counselling), on the first and second “usual” alternate Sunday time with the father, for a period of two (2) hours, supervised at B Counselling, with each parent to immediately give any necessary permissions for Ms C and Mr D to attend such sessions; and
(b)thereafter and for a period of six (6) months, on the first of every three (3) weekends (with the first weekend commencing two (2) weeks after the last supervised session at B Counselling), from:
(i)9.00am to 5.00pm on the Saturday; and
(ii)9.00am to 5.00pm on the Sunday.
(c)thereafter:
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CaseChat Overview and Summary
The primary legal issue before the court was whether the father posed a risk to the children that outweighed the benefits of a meaningful relationship with him. The court had to consider the primary and additional considerations outlined in the relevant legislation, including the need to protect the children from harm and the benefit of having a meaningful relationship with both parents. The court also had to consider the expert evidence presented on the father's risk of reoffending and the proposed conditions for supervised contact with the children. Ultimately, the court had to determine whether the father's past behaviour justified limiting his involvement in the children's lives or whether the benefits of a relationship with him outweighed the risks.
In delivering its judgment, the court found that the children would benefit from having a meaningful relationship with the father, but that the risks posed by his past behaviour must be given greater weight. The court accepted the expert evidence that the father posed a low risk of reoffending, but noted that this did not mean there was no risk at all. The court found that the father was vulnerable to engaging in further criminal conduct if he did not maintain a therapeutic relationship, used drugs or excessive alcohol, or failed to confront the source of his past behaviour through therapy. The court rejected the mother's claim that the father had a sexual interest in children, finding that there was no evidence to support this allegation. The court also found that the conditions proposed by the Independent Children's Lawyer for supervised contact with the children would further ameliorate the risk posed by the father, and that the benefits and safeguards offered by the paternal grandparents as supervisors outweighed the negatives.
The court ultimately ordered that the father have unsupervised contact with the children, subject to certain conditions designed to protect them from any potential harm. The court found that the paternal grandparents were suitable supervisors and that their involvement would further reduce the risk posed by the father. The court also ordered that the father undertake further specific and ongoing counselling to address his past behaviour and to ensure that he maintained a therapeutic relationship. The court emphasised the importance of the children having a meaningful relationship with both parents, but recognised the need to protect them from any potential harm that the father's past behaviour might pose.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I will now use the primary and additional considerations as prescribed by the Act as a matrix to try and explain the essential findings I make in this case – relying as I do upon findings already made and not seeking to confuse the parties, by attempting to engage with every aspect of the evidence before me by making a finding on every factual dispute.PRIMARY CONSIDERATIONS I find X and Y will benefit from having a meaningful relationship with the father. The manner in which s 60CC(2)(a) is prescribed, leaves considerations of the boys relationship with other than their parents to other considerations. The mother expresses the belief that the children do not have, and will not gain in the future, any meaningful relationship from the father. This is implicit in the orders she seeks but was nonetheless firmly expressed by her. I disagree. The mother has, it seems, taken the view that the boys do not need a father. That she seems to have formed the same view in relation to her baby E, is not necessarily relevant. As I discuss next, whilst I accept some issues in the future (depending on how they are handled primarily by the mother) could challenge whatever relationship then exists between the father and X and Y, to assume having spent many years now engaging with the father means an abrupt cessation will occur without concern to the boys, is simply fanciful.RISKS As s 60CC(2)(c) makes clear, the risks to the children posed by the father must be given greater weight than the benefit they accrue from a meaningful relationship. I broadly accept the expert evidence of Dr J that the father should be assessed as a low risk of reoffending, for the reasons he gives. However, I do accept that “low risk” is not the same as “no risk”. With the history, the evidence of the father and some of the inconsistencies identified during his cross-examination, he is vulnerable to engaging in further criminal conduct, but more likely on my assessment where:(a)he is not maintaining a therapeutic relationship;(b)he uses drugs or excessive alcohol; and(c)he does not continue, through therapy, to confront the relatively unknown source for why he initiated contact with CEM when every bone in his body should have told him it was wrong to do so. I accept that the mother seeks to rely upon the alleged sexual engagement with BB as a factor (when combined with his relationship with Ms S) to establish that the father has a sexual interest in children and as a result could sexually abuse the boys if he had any opportunity to do so. I do not accept, on all the evidence (and despite Mr L’s view), this is a finding open to the Court. I draw some comfort that even the mother makes no allegation that the father has ever touched the boys inappropriately, and even if (as the father says) the picture identified by the police of an image of a baby with “nappy rash” is of one of the boys, does not persuade me to make such a finding. The conditions that the Independent Children’s Lawyer proposes for the father to undertake further specific and ongoing counselling does focus on ameliorating the risk, however where the father does not seek unsupervised time, it is necessary to consider whether the supervision by the paternal grandparents does further ameliorate the risk the father could pose. As I will explain, I find, as the Independent Children’s Lawyer contends, the benefits and safeguards offered by the paternal grandparents as supervisors outweigh the negatives.