Fitzpatrick & Fitzpatrick
[2005] FamCA 394
•24 May 2005
[2005] FamCA 394
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No NA65 of 2004
AT BRISBANE File No BRF7153 of 2002
BETWEEN:
TF
Appellant Father
- and -
JF
Respondent Mother
- and -
Children’s Representative
REASONS FOR JUDGMENT
CORAM: Bryant CJ, Kay & May JJ
DATE OF HEARING: 16 February 2005
DATE OF JUDGMENT: 24 May 2005
APPEAL SUMMARY
MATTER:TF & JF & Child Representative
APPEAL NUMBER:
NA 65 of 2004
(BRF 7153 of 2002)
CORAM:Bryant CJ, Kay and May JJ
DATE OF HEARING: 16 February 2005
DATE OF JUDGMENT: 24 May 2005
Catchwords
APPEAL – children – contact – allegations of sexual abuse – Full Court found trial Judge’s findings relating to the probability that the children believe that the father has done the things which are the subject of their disclosure and that they are subject to an unacceptable risk of emotional or psychological harm if supervised contact were ordered ought not be sustained on the evidence – Full Court found trial Judge erred in failing to make an order that the father have access to their medical and educational progress as there was no evidence that it would not be in the children’s best interests – re-exercise of discretion – s 68F(2) Family Law Act 1975 (Cth) – weight given to 9 year old child’s wishes – no expert evidence that the mother would be so overborne by contact of the father to the children as to be unable to function adequately as the principal caregiver to her children – appeal allowed in part –father have fortnightly supervised contact with two of the three children and the father be kept informed about the three children’s educational and medical progress – costs certificate granted to the appellant father and children’s representative.
Bryant CJ and Kay J
This is the father’s appeal against orders made by O’Reilly J on 21 September 2004 that the father have no contact with his children X born February 1995, Y born May 1996 and Z born February 1998.
By his appeal the father seeks orders that would enable him to have supervised contact with the children on alternate Sundays at a contact centre in a Queensland city north of Brisbane (‘the contact centre’) and that he be provided with or have liberty to obtain information concerning their medical and educational progress. The father’s appeal is supported by the Children’s Representative.
Background
The parties were both born in 1968. They married in March 1991 and separated in December 2001. At the time of their separation X was almost 7, Y was 5½ and Z almost 4.
While the evidence as to the nature and frequency of contact during 2002 is unclear, on 18 December 2002 orders were made by consent that provided for the father to have contact with the children each second Saturday from 9.00am to 5.00pm in the town of the mother’s home where the children reside and be supervised by the mother, together with telephone contact at 6.00pm each alternative Friday. By late 2003 the contact arrangements were changed so that they occurred at the contact centre each alternate Sunday for three hours. That contact was still occurring at the time of the trial of the competing applications.
In an Outline of Case document filed on behalf of the mother at the trial, the mother sought orders that the father have contact with the child Y for three hours on alternate Sundays to be supervised by the contact centre or in the alternative that he have supervised contact with all three children at the contact centre. In her oral evidence at the trial the mother said that that document was filed without her instructions and that it was her clear view that the children should not have any contact with their father. In his summary of argument also filed at the trial the father sought contact to all three children each alternate weekend from 5.00pm Friday to 5.00pm Sunday together with telephone contact at reasonable times but not less than each alternate Friday. In addition he sought holiday contact and orders requiring or enabling him to obtain information relating to the whereabouts of the children, their educational progress and any medical information relevant to them. In closing submissions it was put on his behalf that if there were to be orders for supervised contact then changeover could take place at the contact centre but that his sisters could act as supervisors.
The issues that confronted the trial Judge were summarised by her Honour at the commencement of her judgment as follows:
“1.[X], [Y] and [Z] reside with the mother, [JF]. The children are 9, 8 and 6 years respectively.
2.The parties are agreed that the children should continue to reside with the mother.
3.[TF], the father, seeks a final order that the children have contact with him, preferably unsupervised.
4.The father has admitted that he suffers what is described as a sexual addiction. He has been diagnosed as having two diagnosable sexual conditions, namely Fetishism and Tranvestic Fetishism, the latter of which involves a predilection for cross-dressing, including the wearing of women’s underwear and lipstick. He has not been diagnosed as having the diagnosable condition of Paedophilia. However Dr [DL], psychiatrist, has said that if the Court should find that the father has sexually abused any of his children, and engaged in accessing internet child pornography websites, it could be that a diagnosis of Paedophilia could possibly be made, depending on other factors relevant to the diagnosis.
5.The father admits to accessing internet adult pornography websites, and to having engaged in anonymous male sex in public toilets.
6.He denies however that he has sexually abused any of his children, or accessed internet child pornography websites.
7.The mother has reported a disclosure by [Z] on 30 June 2002 that the father has licked her ‘poo poo hole and wee wee hole’, and that he ‘bites my wee hole and it hurts’.
8.The mother has reported a disclosure by [Y] that the father would ‘rub his hand on my bottom, not in the pants, on the top.’
9.[X] has not reported any inappropriate touching by the father, but has reported the experience of seeing ‘some gross stuff on the computer … it was counting to nine … and every time there was the next number another picture came up … gross … all naked people and they were licking each other’s bottoms and stuff’.
10.The mother is extremely fearful of the children having any contact with the father.
11.[X] and [Z] have expressed wishes not to have any contact with the father.
12.[Y] has expressed the wish to have contact with the father.
13.Pursuant to current interim orders, and a variation of them made by the parties, for the last year or so the children have had fortnightly supervised contact with the father at the [contact centre]. Before that, the children had contact with the father, supervised by the mother. There is evidence to the effect that the parties had thought that the change to the [contact centre] was pursuant to an order in place for contact to occur there.
14.The supervisor for the contact at the [contact centre] has reported that the contact has been successful, and that the children appear to enjoy it.
15.However, the decision as to their best interests and welfare must have regard to the serious matters raised.”
The judgment
Her Honour first referred to the principles relevant to findings of sexual abuse and unacceptable risk as outlined by the High Court in M and M (1988) 166 CLR 69 and the Full Court in B and B (1993) FLC 92-357 at 79,778. Her Honour then turned to the findings that she would make in the proceedings and a review of the evidence that led her to her findings.
The mother was firmly convinced that the father had sexually interfered with the child [Z]. She based that belief not only the father’s general pattern of “sexual addition” but on a finding by a general practitioner on 2 January 2002 that [Z] had a “non-intact hymen with a widely patent vagina”. Further, late in January 2002 [Z] told her mother “Daddy used to lick me. He licked my poo poo and wee wee hole”. Her Honour accepted that the disclosure had been made and was unlikely to have been fabricated and that the child’s descriptions were unlikely to have an innocent explanation. She concluded however that a positive finding that the father had sexually abused [Z] ought not be made.
Her Honour then turned to the mother’s allegations that the child Y had been sexually interfered with by her father because the child, in response to a question from her mother as to whether the father had ever touched her private parts had said that the father would “rub his hand on my bottom, not in the pants, on the top”. Her Honour accepted the mother’s report of the child’s disclosure to be honest and accurate. However, she also concluded that a positive finding that the father had sexually abused the child could not be made.
There was further evidence that it was common ground that on one occasion the child X had reported to her mother that she had seen some pornographic images on the father’s computer which she described as “yucky pictures” and that she may have seen the father masturbating. There was extensive evidence about the father’s computer. A friend of the mother had inspected the computer and found references to some websites that contained internet child pornography. The Queensland Police Service had inspected the computer and found nothing untoward. Her Honour declined to make any finding that the father had accessed or downloaded material from internet child pornography websites.
Her Honour then set out passages from the evidence of Dr DL, a psychiatrist engaged by the Children’s Representative to determine the presence of mental illness, personality disorder or risk potential with respect to the father. The doctor concluded:
“The History as Told by [TF]
…
He stated that [his] relationship failed because of his predilection for pornography. [He] states that his interest in pornography is chiefly on Internet and chiefly relates to females. He is particularly interested in observing female-female sexual relations. His interest in pornography started at the age of 15 and around this time he developed a fetish for lingerie and started cross-dressing. [His] viewing of pornography usually involves masturbation and his wife became enraged on one occasion when she caught him in the act. He told her all about his sexual practices and the relationship had deteriorated from that point.
At the interview with me he told me some detail of his sexual habits stating that he became sexually active with females while at high school but also [became] very interested in pornography and masturbated frequently. His mother sold lingerie by mail order and he became fascinated with this and tried on items, became sexually aroused and would masturbate. He describes himself as primarily heterosexual but in 1986 when he first visited Brisbane he engaged in anonymous sex with males in public toilets.
He has reflected a great deal on his problems and is convinced that he has a ‘sexual addiction’ and is keen to change his life and is currently receiving counselling through a psychologist who is connected with the church that he attends. He has further reflected that he seeks [sic] homosexual contacts may be related to the need to have a male contact to fill the void left by a father who showed him little attention. The veracity of this conclusion is not [the word “not” was edited out in oral evidence] uncertain. He also stated that he had a fixation about penises. He contends that he is not a paedophile. He claims never to have had sexual contact with children and certainly not his daughters. There have been no accusations of him molesting children in the household where he lives. He also states that he is not interested in child pornography. He also asserts that he does not show his daughters pornography but concedes there was one incident where one of the daughters accidentally saw a small amount of pornography on his computer. He states this was totally accidental and he made sure it would not happen again.
He admitted that he indulged in pornography almost every day and masturbated frequently. He states that his wife tolerated a certain level of this early in their marriage. He asserts that they viewed pornography together to enhance arousal for their own sexual activity. He also admitted that he cross-dressed during sex with his wife for some time and she initially tolerated this behaviour up to a point.
…
Currently [TF] is living with other [sic] in a rented house and continues to work and receive counselling. He is keen to receive help for his problems that he recognises as excessive. He is keen to gain further contact with his girls. Regarding his current sexuality, he still has some homosexual interests. He has not had sex with a woman recently but is in a close Platonic relationship with a lady. He is still viewing pornography. [TF] firmly asserts that his girls are not at risk from him either in terms of sexual abuse in the direct sense or by exposure to pornography or to his other behaviours.
Psychiatric Symptomatology
…
He is fully aware of the extent of his sexual behaviour and has stated that he would like to be able to stop his excessive habits and will be prepared to undertake programs to moderate his behaviour.
…
Personality
[TF] has an unusual personality profile. He probably has had dependent traits with significant insecurity in the past but currently shows narcissistic traits and a tendency to engage in perilous behaviours.
Psychiatric Diagnosis
He is not suffering a serious psychiatric disorder such as psychosis or major mood disorder. He has mild anxiety and depression only.
In relation to his sexual activities it is more difficult to ascribe a DSM IV diagnosis. Homosexuality is not a diagnosable condition but his consorting at public toilets represents aberrant behaviour. His interest in pornography has been judged by his wife to be excessive. He also has an interest in women’s underwear and enjoys cross-dressing. The latter activities come under the DSM IV heading of paraphilia. He would qualify for the diagnoses of Fetishism and also Transvestic Fetishism. Interest in pornography and excessive masturbation are not listed in the DSM IV but the accounts given indicate his level of interest in these areas exceed [sic] reasonable bounds.
Taken in totality he fits the description of ‘sex addition’. This is not a formal DSM IV diagnosis but a generally recognised entity characterised by excessive compulsive sexual behaviour, often involving high-risk behaviours, involving an inordinate amount of time and interfering with general functioning despite attempts to curb the behaviours.
He denies interest in children sexually. A diagnosis of Paedophilia would be difficult to substantiate.
…
[TF]’s Parenting Skills and Related Matters
It is difficult to determine his parenting skills with only his own account and his wife’s concerns to draw on. He freely admits that he has unusual sexual leanings but adamantly denies any interest in children. He is firm about his girls not being at risk from him. He denies that he would show them pornography. The obvious concern is whether there might be accidental exposure to such material.
…
Conclusions Drawn on [TF]’s Presentation
…
He is reasonably convincing in his assertions that he has no paedophilic tendencies and has no interest in sexually abusing his daughters. There has been no evidence of him interfering with other children where he resides. He appears to be highly motivated to protect his daughters from being exposed to his sexual habits and from being exposed to pornography although one daughter had accidentally seen some pornography on one occasion.
…
Recommendations
In the first instance the access that has previously been granted to him should be reinstated to the full eight hours per fortnight. Steps should be put in place to prevent his ex-wife sabotaging the arrangements.
Although this man has a number of sexual aberrations it would appear that he is not paedophilic. There has been no evidence of any interest in children and there is no evidence of his abusing his own children despite an allegation made by his ex-wife. From this perspective it would appear that the children would not be at risk of direct sexual abuse by him. This would certainly not be a risk with supervised visits and would probably not be a risk with unsupervised visits.
The question of the children being exposed to pornography is a more difficult issue. Another issue is whether the children could be exposed to his fetish paraphernalia and his cross-dressing. These matters would not arise as a problem with supervised contact but the possibility does exist if he were to have unsupervised contact. It is however hard to imagine that he would be foolish enough to expose to [sic] girls to his aberrant behaviour when so much is at stake, but the risk does remain that there could be some accidental exposure to pornography or perhaps items of lingerie etc. It is unlikely that there is a substantial risk of this occurring if the unsupervised contact occurs in [a Queensland city north of Brisbane]. He is unlikely to travel to [a Queensland city north of Brisbane] with such material and if there were concern about this matter it could be resolved by insisting that he brings no such material with him. I would be more concerned about unsupervised contact at his own place of abode where such material could possibly be found.
In summary, I consider that this man has a low potential for abusing this children. I believe that there is a low risk of the children being exposed to offensive material at unsupervised visits if visits occur at a suitable location…. His parents’ home may be a suitable place. I would have some reservations about unsupervised contact at any place where [TF] resides because of the risk of accidental exposure to pornography or other items. Conditions could be put in place to ensure that [TF] does not bring pornography or lingerie items with him when he visits the children in [the Queensland city north of Brisbane]. The situation could be reviewed from time to time and if it were shown that [TF] is behaving responsibly in these matters he could eventually be granted further unsupervised contact.
I reiterate that this is a complex case where one set of sexual problems does not necessarily indicate a risk to the children but also reiterate the need to protect against accidental exposure to pornography. It is also recognised that this case is complicated by the acrimony between the parties, which has led to lack of cooperation from his wife. This man admits his problems and appears motivated to address them.
Although I consider that unsupervised access can be a safe option, some form of monitoring needs to occur and some conditions need to be in place to ensure the children are not exposed to aberrant behaviour which could be eventually be [sic] regarded as ‘normal’.”
Her Honour referred to the evidence of PB, psychologist, who had been engaged by the father late in 2003 for treatment, as well as to the evidence of a Dr M, a counsellor engaged by the father in 2002 and 2003.
Her Honour felt there was a high degree of suspicion that the father had sexually abused Y and Z, some degree of suspicion that he may have downloaded material from the internet on child pornography, and a degree of risk that the children would see pornographic images if they were to enjoy unsupervised contact with their father. She then concluded that there was an unacceptable risk of sexual abuse in the event that there was unsupervised contact. Her Honour accepted, however, that risk would be effectively non-existent in appropriately supervised contact.
Her Honour then turned to examine whether there was an unacceptable risk of emotional or psychological harm if supervised contact was ordered. She cited from M and M (supra) at 77 (emphasis added):
“…Even in such a case [supervised access], 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. …”
Under the heading “Y’s and Z’s beliefs” her Honour said there was ample evidence to support a positive answer to a question as to whether they might believe that their father had sexually abused them. She said that apart from Y’s already reported remarks about the father rubbing his hand on her bottom she accepted that the child also said (emphasis added):
“I don’t want to tell anyone, Mummy, it’s embarrassing, for Daddy and me.”
Whilst her Honour found that it was more likely than not that Y believed the father had done to her the things described in her disclosure, such a finding in some respects seems difficult to sustain. For reasons that will appear shortly, Y has maintained a loving relationship with her father which she is keen on preserving. She has not repeated the comments to any other person, nor expressed any concern in the quality of her relationship with her father. The “disclosures” were made sometime in 2002, at least two years before the trial, and precisely what was meant by them was a matter of absolute conjecture.
Two family reports were prepared by DC, a family therapist and child and adolescent counsellor. She saw the children in February 2004 and again in July 2004. In neither report is there any support for the proposition that Y believed that her father had done the things as described in the disclosure.
Her Honour said that the case with respect to Z’s beliefs was even clearer. She referred first to the disclosure itself which had been made more than 2½ years before the trial, at a time when the child was 3 years of age. There is no evidence of the child having ever repeated it to any other person.
“95.…Added to this are the following disturbing factors. First, there is the evidence of [DC], family therapist, (second report, par 5.4) of [Z] expressing the wish not to see the father because (amongst other things):
‘… (I asked what it felt like when she saw her dad) “I feel a bit like when I’m hungry in my tummy and sometimes I get like headaches … it’s a yukky feeling in my tummy”. I believe this latter comment is quite significant. I did not have the sense that she had been coached into sharing this information which I believe is directly related to an intangible feeling of discomfort around seeing her father.’
96.Secondly, there is evidence, which I accept, that during the period shortly before the final separation when the mother worked outside of the home and left [Z] in the father’s care [Z]’s personality changed, she became noticeably withdrawn and commenced to ask anxiously whether one day or another was a school day or a day to be spent with the father (whilst the mother was at work).
97.On the whole of the evidence, I find that it is more likely than not that [Z] believes that the father has done to her the things described in the disclosure.”
The reference in paragraph 96 above was to a period several years earlier when the child was observed by the mother to become anxious when the mother went to work leaving the child in the father’s care. Her Honour’s conclusion that it was more likely than not that [Z] believes the father had done the things described in the disclosure is a very difficult conclusion to support given the absence of any evidence about the child save that which had come from the court counsellor and the person supervising the children during contact periods. The counsellor said in her first report:
“8.6There was no disclosure around any sexually inappropriate behaviour perpetrated against any of the girls. If it has ever occurred and if they remembered it, I would not expect such information to be disclosed until a strong trusting relationship between the girls and a therapist had been established.”
In her later report she stated the matters that we have just referred to as set out by the trial Judge. Such evidence cannot in our view support a positive finding by the trial Judge that the child believes the father has done to her that which she disclosed to her mother several years earlier. What it was that troubled Z by being left in her father’s care when two years of age was never explored with any of the expert witnesses. At its highest there was some speculation in DC’s report that X’s and Z’s expressed negative wishes had an explicable basis and in the circumstances appeared to be genuine wishes which, despite their young ages, should be taken into account.
Such speculation was not the subject of any cross examination and it was never put to DC that the children carried firm beliefs of what it was that their father might have done to them.
Given the importance her Honour placed upon the finding that the children held such beliefs, in our view such a finding ought not have been made unless there was at least persuasive evidence upon which to base such a finding rather than mere conjecture.
Her Honour then turned under the heading of “Evidence of present disturbance” to examine each of the children. She said:
“[X]
98.As to evidence of actual disturbance, [DC] described (second report, par 6.3) concerning [X] ‘feelings of resentment’ towards the father ‘because he is not normal’. This is a reference back to par 5.2 which, in the respect of [X], should be set out in full:
‘5.2I asked [X] if she could remember anything about her dad from when they were living together that she felt unhappy or uncomfortable about. She replied “only one but … it was part of dad’s office and part of our toy room … when I was in there dad wasn’t in there … I saw some gross stuff on the computer … it was counting to nine … and every time there was the next number another picture came up … gross … all naked people and they were licking each other’s bottoms and stuff”. [X] said she could not remember anything else that was problematic. After sitting quietly for a moment or two, I told [X] that I thought it must be quite hard for her to have to come and talk to someone who she didn’t know very well about such topics. She started crying. Through the tears she said: “I’d really, really, really like to have a dad to hang out with … you know, who’s just normal … ’cause I love hanging out with people ... I feel left out at school … nearly everybody has a dad that they hang out with … they all write about their dad in their journals.” [X] went on to say that the phone calls with her father were boring and intrusive. I asked her how she would change the situation with her father if she was magic. She said she would maybe talk on the phone once a month or something but that she would never see him again. I suggested her position might change when she was a bit older. She remained firm and assured me it would not. When asked how she would feel if she was told she didn’t have to see him she replied: “good … I’d be like relieved like oh, thank goodness I’d never have to see him again.’
[Y]
99.Concerning [Y], I have referred already to [Y]’s remark to the mother made at the time of her disclosure ‘I don’t want to tell anyone Mummy, it’s embarrassing, for Daddy and for me.’ Secondly, [DC] gave evidence that [Y] engages in noticeable ‘attention seeking’ with the father. [DC] said that children who have been abused can sometimes still want to see the abusive parent and that such a child wants the abuse to stop, not the contact. There is no specific expert evidence that [Y]’s attention seeking with the father in itself may indicate disturbance. However, [Y]’s statement to the mother of her emotion concerning her disclosure, namely of her embarrassment in any discussion of it is significant, having regard to the context in which she said she was or would be embarrassed.
[Z]
100.Concerning [Z], I have referred already to the mother’s evidence, which I accept, that shortly before the final separation when the mother worked outside of the home and left [Z] in the father’s care, [Z]’s personality changed, she became noticeably withdrawn and commenced to ask anxiously whether one day or another was a school day or a day she was to spend with the father (whilst the mother was at work); and to DC’s evidence (second report, par 5.4, set out above) as to [Z] feeling ‘yukky’ when she sees the father. [DC] said further (second report, par 6.4):
‘6.4… I reiterate, I find her comments around how she feels when she sees her father, disquieting. As the issue of any improper behaviour (vis-à-vis her “non-intact hymen and widely patent vagina”) have not been pursued [by the Queensland Police Service] it is difficult to ascribe an irrefutable reason for these feelings.’…”
Her Honour then said in a paragraph that has really been the subject matter of the main focus of this appeal, as follows (emphasis added):
“101.On the totality of the evidence to which I have referred I find, with reluctance but not hesitation, that there would be an unacceptable risk of emotional or psychological harm to each of the children if supervised contact were ordered. In short, I have concluded that it is more likely than not that each of [Y] and [Z] believes that the father has done to them the things which are the subject of their disclosures. There is also evidence capable of supporting present disturbance in each of the children, which appears to be directly related to unpleasant experiences of a sexual nature with or concerning the father. I refer here in particular to [X]’s resentment of seeing the father (which appears to be related to the ‘gross’ things [X] saw on the computer); [Y]’s embarrassment (relating to her disclosure) and [Z]’s feeling ‘yukky’ as described to [DC], causing [DC] to express the belief that [Z]’s feeling is ‘directly related to an intangible feeling of discomfort around seeing her father.’”
Her Honour then set about examining the various matters that the Family LawAct 1975 (“the Act”) compels her to pay attention to under s 68F(2). She identified the children’s wishes, accepting that X and Z had expressed a view to the counsellor that they did not wish to see the father. Her Honour took the view that the wishes appeared to be genuine and despite their young ages should be taken into account. Her Honour identified that Y had expressed to DC that she did wish to see the father. She said:
“105.[Y] has expressed to [DC] that she does wish to see the father. [Y] has made the disclosure to the mother to which I have already referred, namely that the father would ‘rub his hand on my bottom, not in the pants, on the top’, but that she did not wish to tell anyone because ‘it’s embarrassing, for Daddy and for me.’ There is evidence to the effect that [Y] engages in noticeable ‘attention seeking’ with the father. [DC] said that children who have been abused can sometimes still want to see the abusive parent, and that such a child wants the abuse to stop, not the contact. There is evidence that [Y] has told the mother that she masturbates. [DC] said that it is not unusual for children who have been sexually abused to masturbate for the ‘pleasurable feeling.’ These matters are circumstances which are relevant to the weight to be given to [Y]’s expressed wish.”
Her Honour turned her attention to the likely effect of any change should contact be suspended, saying:
“112.There is a concern as to the effect on the children if I should decide that their best interests and welfare would be served by an order that there be no contact with the father.
113.In her oral evidence, [DC] said to the effect:
‘These three children are bright and resilient young girls. I have no doubt that they could be supported sufficiently to manage a cessation of contact.’”
Her Honour concluded the mother had the capacity to provide for the children’s emotional needs if contact stopped but expressed concern that the mother would have the capacity to provide for the needs of X and Z if contact was ordered and the children continued to assert that they did not wish to attend contact.
Her Honour found that the mother held a genuine belief that the children had been sexually abused which was not unreasonable or irrational. She accepted the evidence that X and Z had pleaded with their mother not to go on contact and that the mother had to “force” the children to go on contact which “progressively got more difficult over time”. She said:
“125.The mother said that the father has ‘masturbated’ [Y], has interfered with [Z] so that ‘her hymen is missing’ and that [X] has witnessed pornographic material on the family computer. She said that [X] has pleaded with her that she not go on contact and that she has had to ‘force’ the children go to on contact, which has ‘progressively got more difficult over time.’ She has said to [X] to ‘wait’ meaning, as I understood her evidence, to wait until the Court decision as to whether she need continue to ‘force’ [X] to go to contact. She has said to [Z] ‘you’ve got to go’ (to contact). As I understood the mother’s evidence, in the context of my observation of her in the witness box, she has struggled greatly to ensure that the children have attended supervised contact on the interim basis, although that has been against her own wishes, in the anticipation that the final resolution by the Court will be the cessation of contact, but that having regard to the children’s emotional needs, and her own position, she could not continue to force them to contact if the Court made final orders that contact, even supervised contact, must continue to occur.
126.There is a real concern that, if continued contact is ordered, even continued supervised contact, the mother may not be able to cope, in two ways. First, the mother may not be able to continue to ‘force’ [X] and [Z] to attend contact. Secondly, the mother may not be able appropriately to deal with the children’s emotions, or indeed her own, as to continued contact, which may affect her parenting ability.
127.The Court has recognised that, in some cases, the inability of the residence parent to support a contact regime is a factor to be taken into account, and that, in that circumstance, it is relevant to consider whether the residence parent has a genuinely held belief that an unacceptable risk of harm to the children may result by any contact regime which may be ordered; and whether the ordering of contact, in such circumstances, may affect the ability of the residence parent adequately to parent the children. A and A (1998) FLC 92-800 (FC) at 84,996 (in particular pars 3.28, 3.29). I should note, having regard to the observations in par 3.29, that I am dealing at this point only with the question of whether the mother, as the residence parent, has a genuinely held belief that contact may harm the children and the effect that may have on her capacity to provide for the children’s emotional needs, as a discrete factor. (I recognise that, in A and A, at par 3.29, the Full Court was dealing with the matter of a residence parent’s genuinely held belief where, objectively, there was not unacceptable risk, and that in this case I have made findings as to unacceptable risk. However, the question of the mother’s capacity according to her genuinely held belief is nonetheless a factor to be taken into account in respect of the mother’s capacity to provide for the children’s needs as required by s 68F(2)).”
Her Honour concluded that within the context of supervised contact the father had the capacity to provide love and nurture to the children but that there was little evidence of his capacity to provide for emotional needs of the children.
Her Honour expressed some concerns about the father’s potential to take responsibility for his children having regard to his admitted sexual activities saying:
“134.There is evidence that the father wishes to take responsibility for his children emotionally, materially and intellectually. However, the nature of the father’s admitted sexual activities, characterised by Dr [DL] as:
‘… excessive compulsive sexual behaviour often involving high-risk behaviours, involving an inordinate amount of time and interfering with general functioning despite attempts to curb the behaviours’,
raises concerns as to the potential impact of his behaviours on the functioning of his responsibilities as a parent.”
Her Honour noted that the contact centre was able to offer long-term supervised contact and then said (emphasis added):
“Decision and reasons
142.The factors which appear to me to be the most significant are my findings that there would be an unacceptable risk of sexual abuse if the children should have unsupervised contact with the father; and that there would be an unacceptable risk of emotional or psychological harm if the children should have supervised contact with the father. There is concern also as to Dr [DL]’s conclusion as to the father’s ‘excessive compulsive sexual behaviour often involving high-risk behaviours, involving an inordinate amount of time and interfering with general functioning despite attempts to curb the behaviours’; and that, if any contact is ordered, even supervised contact, the mother may not be able to cope in her parenting of the children
143.I appreciate, as explained in A and A at par 3.29, that the factors of unacceptable risk, and the mother’s capacity to cope with her parenting of the children having regard to her genuinely held belief that sexual abuse has occurred, are discrete factors. However, in this case, the mother’s genuinely held belief of risk is an added factor to the ‘first inquiry’ as to whether there is unacceptable risk, and I emphasise that I have not confused these two discrete factors.
144.It is significant also that the father has been seeking treatment for his diagnosed conditions (Dr [DL]) of Fetishism and Tranvestic Fetishism as well as what is described as his ‘sex addiction’ and that [PB] considers that the father has made progress. I take into account the opinions of each of Dr [DL], [PB] and Dr M. However, as I have said, none of the experts has had the advantage, which I have had as the trial Judge, of evaluating risk to the children on all of the evidence.
145.It is significant also that whilst [X] and [Z] have expressed the wish not to see the father, [Y] has expressed a positive wish although, as I have explained, [Y]’s positive wish must be taken into account in light of the matters which I have mentioned which are relevant to the weight to be given to her wish and also against the background of her age, maturity and level of understanding of the nature of the issues in the case.
146.Having regard to all of the evidence, and all of the relevant factors, in my view the children’s best interests would be served now by an order that there be no contact between the children and the father. I am mindful that such an order should be made only in the most extreme case, and then only when a positive determination is made that the welfare of the children require it, especially having regard to the matters in s 60B and the need to achieve a balance between the risk of detriment to the children and the possibility of benefit to them by contact. In my view however, having regard to all of the evidence, this is an extreme case, and there are factors to support a positive determination that the welfare of the children requires a ‘no contact’ order. I make that positive determination based on all of the evidence and findings, but principally upon the findings of unacceptable risk, as I have explained them.
147.I have considered whether there should be orders that there be no contact with the father concerning [X] and [Z], but supervised contact concerning [Y], having regard to her expressed wish. However, I have concluded that this would not be in [Y]’s best interests. First, as I have said, [Y]’s expressed wish must be considered against the background of all of the circumstances of the case, including her age, maturity and level of understanding. Secondly, a segregated order would provide a basis for the children to question the segregation. It has been put that the children already are used to segregated treatment, eg [Y]’s telephone contact with the father. The fact that segregation has already occurred does not mean that it is beneficial. Thirdly, if [Y] has been sexually abused, as to which I have said there is a high degree of suspicion, there is a risk that later in her life, when [Y]’s level of understanding increases, she might question why the Court saw fit to protect [X] and [Z], but not her. This circumstance should be avoided, to obviate the risk of potential psychological harm to [Y] arising from that circumstance.”
Her Honour declined to order any limited telephone contact on the basis that it might be likely to cause upset and confusion to the children, and then said:
“150. The father seeks orders concerning the provision to him of school reports and activities and medical reports and treatment concerning the children. In all of the circumstances, there is no basis to think that these orders would be in the children’s best interests. I propose however to make an order that the mother must notify the paternal grandparents, or any of [Mrs C], [Mrs H] or [Mrs B] of any serious (life and death) accident or serious (life and death) illness concerning any of the children.”
Her Honour said that whilst it was not an easy decision to make, an order for a denial of supervised contact, bearing in mind the matter of [Y]’s and [Z]’s beliefs, and an indication of existing disturbance in all three children was appropriate in that “they must be protected from emotional and psychological harm as much as physical harm”.
The appeal
The appeal before us was argued on the basis that the finding of an unacceptable risk of psychological harm to the children by continuing the supervised contact regime that had been in place for at least a year could not be sustained if proper regard was paid to the evidence of the contact centre coordinator as well as to the general evidence relating to the satisfactory progress of the children in all other aspects of their life. It was urged upon us that the welfare of the children would be significantly detrimentally damaged by depriving them of a relationship with their father.
The evidence about the children’s behaviour at the contact centre was given orally by a witness named only as L. Her Honour said of that evidence:
“107The children’s supervisor at the [contact centre] [L] …supervised about 12 of the 24 contact visits which have occurred fortnightly at the [contact centre] during the last year. [L] said that all three children appeared to enjoy contact with the father, they were physically affectionate to the father, there was no behaviour by the children to suggest that they did not want to be there or wanted to leave early and that there was no occasion on which she needed to speak to the father about any inappropriate conduct or conversation with the children.”
The evidence concerning the children’s general wellbeing is to be found in the second family report at paragraph 3.2 where DC said:
“[JF] said the girls are going well at school and ‘[Z] has really grown up this year with being in grade 1’. Certainly the girls’ school reports confirm how well they are doing. All three girls were positive about their school and their friends at school. [JF] feels particularly pleased with the standards promoted at the school: ‘they are in a wonderful school…it’s a Christian school they do stuff on character building all the time…it’s a safe environment…no bullying, no drugs…they’re just nice people’. [JF] continued to speak of other supports: ‘the girls are known and loved…they’ve had a great extended family too…my mum, my sister, my brother…they’ve made an effort to spend time with them and let them know they’re special…I think if you can focus on the good things you’ll get through it…the church is wonderful.’”
Orders that may be made concerning contact between a parent and a child and any other aspects of parental responsibility are governed by the provisions of Part VII of the Family Law Act. The Court is empowered to make such parenting order that it thinks proper. In deciding whether to make a particular parenting order it must regard the best interests of the child as the paramount consideration.
Section 60B(1) provides that the object of Part VII of the Act:
“is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 60B(2) provides:
“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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents 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.”
In B v B: Family Law Reform Act 1995 (1997) FLC 92-755; 21 Fam LR 676 the Full Court held that those principles are subservient to what would best promote the interests of the child in any one particular circumstance.
This was a discretionary judgment. The circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.”
In House v The King (1936) 55 CLR 499, at pp 504-505 , Dixon, Evatt and McTiernan JJ. said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Per Kirby J AMS v AIF (1999) 199 CLR 160; (1998) 24 Fam LR 756:
“[150] … an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.”
Given the very difficult decisions that had to be made in this case, we could not be confident in saying that an outcome where there was no face to face contact between the father and all three children, albeit under supervision, was plainly wrong. There were clearly many disturbing features about this case that could lead a judge to properly come to that conclusion.
The attack in this case is sharply focused elsewhere. It asserts a mistake of fact and an error of principle.
It is submitted that her Honour’s finding that there would be an unacceptable risk of emotional or psychological harm to each of the children if supervised contact were ordered was not supported by the evidence. Additionally the Children’s Representative argues that her Honour failed to properly weigh up the advantages to each of the children of continuing on with an objective arrangement for supervised contact against the disadvantages inherent in forcing such an arrangement contrary to the wishes of their primary caregiver.
Her Honour states that she makes that finding relying on a conclusion that [Y] and [Z] believe their father has done to them “the things which are the subject of their disclosure” and that there is evidence which supports some present disturbance in each of the children which is directly related to unpleasant experiences of a sexual nature with or concerning the father.
For reasons already discussed, we are of the view that the findings relating to the probability that the children believe that the father has done the things which are the subject of their disclosure ought not be sustained on the evidence. The events that Y described as constituting her “disclosure” are of such an ambiguous nature that it would be quite inappropriate to draw any adverse conclusions about them against the father. In addition, Y’s behaviour in wanting to spend time with her father and seeking him out could belie any findings that the child believes the father has in fact acted towards her in an inappropriate manner.
The reasons that influence Z’s feelings are a little bit more difficult to feel confident about. There is nothing in the evidence to suggest that Z has ever repeated the disclosure nor that she has any memory of the events themselves. Her father left the home when she was only three years of age. However her mother has made it quite clear that she has negative feelings towards the father.
We have already set out above the material relied upon by the trial Judge as said to constitute “present disturbance” in each of the children. What that evidence disclosed is that X, now nine years of age, held strong views about not wishing to have any further contact with her father. She did not articulate clearly the basis for those views but the conclusion that forced contact may be counter-productive would have been clearly open having regard to paragraph 6.3 of the welfare report where DC said:
“Having previously recommending that, despite her stated wish, [X] continue to have supervised contact with her father, I now am persuaded that her wishes may need to be upheld. I believe she is now at the point where being forced to see him would only fuel her feelings of resentment towards him. She is already resentful that ‘because he is not normal, she misses out, feels different to her peers etc’. Being forced to see him would, I believe, be counter-productive. The Court will of course need to balance these comments with those of the Contact Centre. It may be that her expressed wishes and her behaviour when she sees him are entirely incongruent. Accordingly, she might have to be ‘forced’ ([J]’s word) to attend contact until such time as her mother has to resort to physical means to make her attend. If this were to occur, I believe contact between [X] and her father should cease.”
Her Honour’s reliance on a remark made by Y three years earlier that “I don’t want to tell anyone Mummy its embarrassing, for Daddy and for me” as the basis of concluding that the child is exhibiting disturbance such that to continue supervised contact may exacerbate that disturbance was, we conclude, not reasonably open to the trial Judge. In particular it is difficult to see how that could be a justification for rejecting the rest of the evidence concerning Y, including her strong wish to continue a relationship with her father. In light of the evidence concerning the satisfactory nature of the relationship she has with her father, it is difficult to see how it could be said to be in her best interests to interfere with her right to have contact with her father by cutting it out completely.
The issue relating to Z falls somewhere between the two extremes. As the counsellor observed at paragraph 6.4 of her second report:
“…I do not doubt that some of her disinterest in seeing her father is linked to the ambivalence expressed (both overtly and covertly) by all other members of the household (bar [Y]).”
If one starts from the proposition advanced by the Full Court in Re W (Sex abuse: Standard of proof) (2004) FLC 93-192; 32 Fam LR 249 that:
“the termination of a worthwhile relationship between a parent and child ought, in most cases, be the course of last resort”
then aside from giving significant weight to [X]’s wishes having regard to her age and the strength of her feelings about her father, and aside from giving appropriate weight to the mother’s firm and unremitting belief that the father has behaved inappropriately towards the children, it is difficult to see why in this case the welfare of at least the younger two children is likely to be advanced by terminating entirely their relationship with their father. The Act assumes that the continuation of such a relationship is worthwhile if other factors do not act to countervail that position. Her Honour’s repeated finding that there was an unacceptable risk of emotional and psychological harm from which these children required protection cannot be justified on the evidence that was led at trial.
School reports
Dealing with the order for the refusal of providing the father with access to the children’s school reports and medical reports and the like, her Honour said:
“150.The father seeks orders concerning the provision to him of school reports and activities and medical reports and treatment concerning the children. In all of the circumstances, there is no basis to think that these orders would be in the children’s best interests. I propose however to make an order that the mother must notify the paternal grandparents, or any of [Mrs C], [Mrs H] or [Mrs B] of any serious (life and death) accident or serious (life and death) illness concerning any of the children.”
The conclusion reached by the trial Judge that there was no basis to think that any such order would be in the children’s best interest is unexplained. Section 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility of the child. In s 61B the Act defines parental responsibility as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. In the child support legislation Parliament clearly places upon the shoulders of the parents of children a responsibility to support them. The capacity to meet parental responsibility towards children must carry with it some knowledge as to the progress of the children and their needs. In any event orders made under Part VII of the Act mandate the bests interests of the child as the paramount consideration. This does not necessarily mean it is the sole consideration. As Kirby J said in AMS v AIF [supra] at 144:
“Statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare…”
The approach taken by the trial Judge on this issue was to conclude in the absence of any evidence whatsoever that an order enabling the father to have information as to his children’s education and medical progress would not be in their best interests. First, we struggle to see the justification for such an approach on any evidence and further we fail to see how the trial Judge in making that statement paid any weight to the father’s interests in having some knowledge as to his children’s well-being. There would appear to be no detriment to the children by their father maintaining an interest in their welfare. Indeed, there may well be circumstances in the future that could arise where, even though the father has not been permitted to have any contact with the children, the very knowledge that he has taken an interest in them may one day bring the children some comfort. If the father had been shown to have been making unreasonable demands upon the children’s school for the provision of information or otherwise interfering with the children’s progress then circumstances may have arisen or may arise in which the continuation of such an order may no longer be appropriate. There was, however, no such evidence in this case nor any predictable likelihood that the father would conduct himself in such a manner. When the parent of a child who has responsibilities cast upon them for the protection of the child seeks information concerning the child’s welfare and progress, it would seem that unless it was positively demonstrated that the provision of such information might be detrimental to the child, that information should be made available. To the extent that the trial Judge failed to make an order as sought by the father relating to such information, we think she was in error.
Discretion re-exercised
Each side has urged upon us in these proceedings that we re-exercise discretion if we find an error rather than remit the matter for further hearing. The father seeks contact to all three children on each alternate weekend plus Father’s Day and Christmas Day. The contact should take place at the contact centre. The Children’s Representative also submits there should be a return to contact at the contact centre but makes no submissions as to the frequency of that contact or to which children it should apply. The mother, who appeared for herself at the appeal, remains firm and resolute in her belief that the welfare of the children will be jeopardised should any contact take place. We do not find our task an easy one.
The counsellor expressed the opinion that forcing X to see her father contrary to her wishes would be counter-productive. She said that X was firm with the view that she did not want to see her father again. The mother certainly expressed the view that she finds it extremely difficult to force the children to contact and was only able to do so on the belief that once there was a trial the matter would be resolved in her favour.
Even though the contact centre supervisor reported that all three children had interacted favourably with their father on periods of contact, given X’s age and her clearly expressed views and wishes as related by both the counsellor and the mother, we conclude that it is appropriate to give weight to those wishes and respect them in all of the circumstances.
At the same time Y is said to wish to continue the contact with her father which she enjoys. No evidence was called on behalf of the mother to suggest that if the contact for Y is continued the mother will not be able to adequately cope in her own parenting role when having to take Y to the contact. As troublesome and difficult as it may be for the mother to perceive that there are benefits for Y in continuing her contact with the father, absent any evidence that the mother’s parenting will deteriorate and that the welfare of the children will thus be affected, both the short and long term benefits to Y of continuing a viable relationship with her father should be maintained.
As already indicated the position with Z falls between the two extremes. The counsellor is acutely aware of the difficulties concerning Z but concluded that contact should probably continue. We see little reason to reject the recommendation of the counsellor.
The counsellor had observed that the father was warm and loving towards his daughters and spontaneously affectionate with Y and Z who responded in kind.
The mother’s ability to cope with ongoing contact was touched upon by the trial Judge when she was dealing with the capacity of the parties to provide for the children’s needs, including their emotional and intellectual needs. Her Honour concluded:
“126. There is a real concern that, if continued contact is ordered, even continued supervised contact, the mother may not be able to cope, in two ways. First, the mother may not be able to continue to ‘force’ X and Z to attend contact. Secondly, the mother may not be able appropriately to deal with the children’s emotions, or indeed her own, as to continued contact, which may affect her parenting ability.”
In Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993) the Full Court (Fogarty, Baker and Lindenmayer JJ) said at p 16:
“It is established that in considering the factors in s 64(1), in particular the nature of the relationship of the child with each of the parents (s 64 (1)(bb)(i)), the custodial parent’s caregiving capacity (s 64(1)(v)) and ‘the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child’ (s 64(1)(va)), an appropriate consideration is the custodial parent’s belief that the child or children have been sexually abused whilst on access and the effect of that belief on them as the primary care giver. The majority of the Full Court in B and B [1988] noted at 76,924 that the criteria in s 64(1) do not constitute an exhaustive list of matters to be taken into account in proceedings concerning children. In this regard, the court considered that the trial judge should always recognise:
‘That any benefit to the child in access taking place should not be outweighed by disadvantages for the child, including a risk that the child’s relationship with the custodial parent might be undermined by the conduct of the non-custodial parent during access periods.’
Thus the majority found that the trial judge had appropriately considered the attitude of the wife towards access and her belief that the child had been sexually abused by the husband as one of the reasons for suspending access.
Similarly, in the case of S and P [1990] FLC 92-159 the Full Court of this court found it appropriate that the trial judge had had regard to the wife’s attitudes and concerns in considering whether or not access would be to the ultimate benefit of the child. Specifically, the Full Court, under the heading ‘Other matters taken into account by the trial judge to justify his decision to suspend access’ at 78,109, quoted the trial judge’s findings that the wife would not trust the husband in his care of the child, would not accept any finding exonerating the husband, and as a result of her conviction of his guilt, would continue to be in a state of tension and anxiety should lie have access to the child. The trial judge therefore concluded: ‘This means that she will be an anxious parent and this will impair her mothering capability.’ The Full Court in B and B [1993] at 79,780 stated:
‘It is not unreasonable for the court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary care giver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children’.
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary care giver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.”
The mother’s views are thus a factor that needs to be brought into the balance in determining whether the welfare of the children will best be advanced by promoting the limited contact that the father seeks. Absent any expert evidence to assist the Court as to the manner in which the mother may be affected in her capacity to care for her children if the contact is continued, it would, in our view be inappropriate for us to draw a conclusion that she might be so overborne by the contact as to be unable to function adequately as the principal caregiver to her children. If such was the situation then we would have expected such evidence to be led at trial or at least explored with the family therapist in the course of her evidence. The issues appear to have been left largely untouched in the evidence and apart from the trial Judge’s observations of the mother reflected in the paragraphs referred to earlier it would be mere speculation on our behalf to assume that the mother’s parenting capacity would be so adversely affected by the continuation of contact that the children’s welfare would best be served by acceding to the mother’s wishes. The evidence suggests that the children are currently prospering academically and socially at school, which of course reflects well on the mother.
Amongst the orders sought on behalf of the appellant father were orders as follows:
“That [DC]…confer with the children and explain to them the orders which the Court had made and the belief by the mother that their father has abused them and the father’s denial of that abuse.
That in the event that [DC] sees a need that the orders for contact be reviewed in the light of the report of her following her conference with the children, then such opinion be considered by a judge at first instance that such reconsideration be confined to circumstances arising from that report (or other circumstances of a significant nature arising subsequent to these orders).”
The desirability of making orders in those terms was said to arise from the rationale and the orders made in the decision of A and A (1998) FLC 92-800 where the Full Court endorsed orders made by the trial judge to that effect. The circumstances in A and A were however significantly different to the circumstances of this case. All of the children had a good relationship with their father. The children were aged 11, 9 and 7 and had been having unsupervised contact to their father. The children were unaware that the mother held a genuine belief that the father had attempted to kill her during an assault by an unidentified assailant in which she suffered serious injuries and was hospitalised for a period of two months. Both the trial judge and the Full Court took the view that it was proper that the children learn of the nature of the mother’s allegations and that a further assessment then be made of the effect of the imparting of that information on their relationship with their father. The Court also ordered that future contact be supervised. We see few parallels between the fact situation of A and A and the facts available in this case. The children do not have a relationship with DC other than that she has interviewed them twice for the purposes of family reports. The nature of the conflict between the father and the mother as to the father’s possible mistreatment of the children is far too difficult to comfortably explain to children as young as Y and Z. There seems little purpose in arousing their curiosity and then further confusing the children by having information imparted to them which will perhaps force them to choose between competing versions urged upon them by their parents.
Unlike the situation in A and A it appears that the mother has from time to time informed the children of reasons why they see their father in restricted circumstances. This information does not appear to have seriously interfered with their day to day functioning and it is difficult to see any reason why the matter now needs to be further explored.
The application was not supported by the Children’s Representative and certainly not supported by the mother.
Outcome
The appeal should be allowed in part. The orders in so far as they provide that there be no contact to the children Y and Z should be set aside and orders made that the father have contact with the children on the second and fourth Sunday of each month from noon to 3.00pm at the contact centre.
It should be further ordered that the mother:
(a) keep the father informed of the names and addresses of any medical or other health practitioners treating the children and authorise such practitioner to provide the father with such information as they are lawfully allowed to provide in relation to the condition and treatment of the children;
(b) keep the father informed as soon as reasonably practicable of any medical condition, significant health issue or other illness suffered by the children providing hospitalisation or surgery or such as may interfere with any contact period;
(c) authorise any schools attended by the children to supply the father copies of school reports, photographs, certificates and awards obtained by the children (at the cost of the father).
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the Children’s Representative a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the Children’s Representative in respect of the costs incurred by the Children’s Representative in relation to the appeal.
May J
I agree the appeal should be allowed and that the Court should re-exercise the discretion to order contact for Y and Z, but not for X. I do not agree that the contact should be fortnightly, rather once per month. I would add that it is clear from this case and many others that this is a very difficult area and that the concept of unacceptable risk is one that is far from settled in its application to many family situations.
As emphasised by Mr Page SC, in this appeal the Court is asked to consider whether the risk to the children is unacceptable in the context of supervised contact only.
The evidence objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised and a risk if contact took place at his home.
In view of the unchallenged evidence of “L”, the co-ordinator of the contact centre and the finding of the trial Judge, “that the contact has been successful, and that the children appear to enjoy it” it was not open to the trial Judge to make no order for contact. Such an order in this case was not proportionate to the risk.
In this instance, it is clear that the mother has strongly held beliefs about the risks to the children. The nature of the father’s unusual condition and the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests.
Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored. In an endeavour to preserve their relationship with the father but also in minimising the risks, limited supervised contact for the present time accords with the children’s interests.
Having regard to these combined considerations, in re-exercising the discretion I would order that contact take place once per month at the contact centre.
It is not appropriate to make orders for other contact, including telephone contact in part for the reasons given by the trial Judge in paragraph 149 of the judgment, together with the limited nature of the orders to be made.
I certify that the 81 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Legal Associate
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