Flitter & Flitter
[2023] FedCFamC1F 426
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Flitter & Flitter [2023] FedCFamC1F 426
File number(s): BRC 3878 of 2019 Judgment of: HOWARD J Date of judgment: 27 March 2023 Catchwords: FAMILY LAW – PARENTING – Failure by the applicant father to attend the final hearing – Where the mother, the paternal grandparents and the ICL have reached agreement for the form of orders for three children – Unacceptable risk of harm (including sexual abuse) in the event of unsupervised time with the father – Matter proceeded by way of undefended hearing – Order that the children spend no time with the father – Sole parental responsibility to the mother – Final orders made. Legislation: Australian Passports Act 2005 (Cth) s 11F
Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 61DA
Criminal Code Act 1899 (Qld) ss 210, 339
Evidence Act1977 (Qld) ss 21AK, 93A
Cases cited: A & Z (2006) FLC 93-257
Baghti & Baghti and Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Briginshaw v Briginshaw (1938) 60 CLR 336
Chang and Su (2002) FLC 93-117
Cox v Pedrana (2013) FLC 93-537
Cubbin v Cutler [2018] FamCAFC 84
Eagle & Scarlett (No 2) [2020] FamCAFC 291
Housing Commission of New South Wales v Tatmar Pastoral [1983] 3 NSWLR 378
Isles & Nelissen (2022) 65 Fam LR 288
Johanson & Johanson [2022] FedCFamC1A 74
Qantas Airways Limited v Gama (2008) 167 FCR 537
Zane & Allan (2008) FLC 93-378
Whisprun Pty Ltd v Dickson (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 27 March 2023 Place: Brisbane Applicant: Litigant in person (no appearance) Counsel for the First Respondent: Mr Taylor Solicitor for the First Respondent: Dodd Bedford & Associates Counsel for the Second Respondent: Mr Christie Solicitor for the Second Respondent Ferrall & Co Lawyers Counsel for the Third Respondent: Mr Cahill Solicitor for the Third Respondent: Focus Family Law Counsel for the Independent Children’s Lawyer: Ms Lyons Solicitor for the Independent Children’s Lawyer: Parker Family Law ORDERS
BRC 3878 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR B FLITTER
Applicant
AND: MS C FLITTER
First Respondent
MS D FLITTER
Second Respondent
MR E FLITTER
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
27 MARCH 2023
UPON THE WRITTEN UNDERTAKINGS FILED 27 MARCH 2023 by Ms D Flitter and Mr E Flitter that they will not bring the children into contact with the father, Mr B Flitter, and that they will ensure that the children are removed if the father is present at any location
THE COURT ORDERS ON A FINAL BASIS THAT:
1.All previous parenting orders be discharged.
Parental Responsibility
2.The mother have sole parental responsibility for all major long term issues affecting the children X born 2012, Y born 2014 and Z born 2016.
Live With / Spend Time With
3.The children live with the mother.
4.The children spend no time with the father.
5.The children spend time with the second and third respondent, paternal grandparents, at all times as may be agreed in writing between the mother and the paternal grandparents and failing agreement as follows:
(a)Commencing 1 April 2023 and the first Saturday of each calendar month thereafter from 11.30am to 5.30pm.
(b)Commencing 1 October 2023 and the first Saturday of each calendar month thereafter from 9.30am to 5.30pm.
Christmas School Holiday Time
6.The childrens’ time in Order 5 be suspended for Christmas School Holidays, upon the mother giving the paternal grandparents no less than 28 days written notice of her intention to take Christmas holiday time with the children.
7.If the mother elects to take Christmas holiday time with the children then she will provide the Paternal Grandparents with copies of the return flight tickets (if any) and she upon provision of such copies shall be permitted to take the children out of the Commonwealth of Australia for such periods to a Hague Convention country.
8.If the mother elects to take Christmas holiday time with the children the children will spend time with the grandparents as may be agreed in writing between the mother and the paternal grandparents and failing agreement as follows:
(a)from 9.30am to 5.30pm on the Saturday immediately following the conclusion of Term 4;
(b)from 9.30am to 5.30pm on the Saturday immediately prior to the recommencement of Term 1.
9.However, if the mother does not elect to take Christmas holiday time, the usual time arrangements stand.
Changeovers
10.Changeovers for the arrangements for the children to spend time with the paternal grandparents unless otherwise agreed in writing with the mother shall occur at the police station at F Street, G Town.
Contact Numbers
11.The mother shall provide the paternal grandparents with a telephone number they can text her on if necessary, during the children’s time with them or in the event that they are running late for changeover.
12.The paternal grandparents shall provide the mother with a telephone number she can text them on in the event that she is running late for changeover.
Restraints and Injunctions
13.The paternal grandparents are restrained and an injunction issue restraining them from:
(a)Denigrating the mother in the hearing or presence of the children or causing or permitting any other person to do so.
(b)Discussing any adult issues with the children or within the hearing of the children or causing or permitting any other person to do so.
(c)Discussing the mother and fathers’ relationship with the children or in the hearing of the children or causing or permitting any other person to do so.
(d)Discussing these proceedings with the children or within the hearing of the children or causing or permitting any other person to do so.
(e)Asking the children where they live or go to school or causing or permitting any other person to do so.
(f)Causing the children to have any contact including electronic or other communication whatsoever with the father or causing or permitting any other person to do so.
(g)Discussing the father with the children or within the hearing or causing or permitting any other person to do so.
14.The Mother is restrained and an injunction issue restraining her from:
(a)Denigrating the Paternal Grandparents in the hearing or presence of the children or causing or permitting any other person to do so.
(b)Discussing any adult issues with the children or within the hearing of the children or causing or permitting any other person to do so.
(c)Discussing these proceedings with the children or within the hearing of the children or causing or permitting any other person to do so.
Passports
15.Pursuant to s 11F of the Australian Passports Act 2005 (Cth), the mother be at liberty to apply for Australian Travel documents for the children.
Updates
16.Once a month, the mother shall provide the paternal grandparents a report by email informing them of the following:
(a)Any decision made by her in the exercise of sole parental responsibility for the children.
(b)The children’s education and progress.
(c)Any medical or allied health matters effecting the children.
17.All outstanding applications are dismissed.
IT IS NOTED
A.The parties acknowledge that a child or the children may express a view in the future to spend more or less time with the paternal grandparents. In this event the parties will endeavour to encourage the children to spend time with the paternal grandparents and/or arrange time in accordance with the child or children’s wishes.
B.Without admission the grandparents will use their best endeavours to moderate their language in front of the children.
C.That the mother and the paternal grandparents agreed to these orders and asked the Court to make these orders with their consent. The Independent Children’s Lawyer supported the making of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Flitter & Flitter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
A. These reasons for judgment were delivered ex tempore on 27 March 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is an application under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for parenting orders. The applicant is the father, Mr B Flitter. The first respondent is the mother, Ms C Flitter. The second respondent is the paternal grandmother, Ms D Flitter, and the third respondent is Mr E Flitter (the paternal grandfather). The Independent Children’s Lawyer is Mr Scott. Ms Lyons of counsel appears on behalf of the ICL. Mr Taylor of counsel appears for the mother. Mr Christie of counsel appears for the grandmother and Mr Cahill of counsel appears for the grandfather. The father himself has failed to attend for the trial of this proceeding. Two sets of solicitors and barristers who formerly represented the father attended at Court this morning and sought the leave of the Court to withdraw. Leave was granted to those two barristers and to the solicitors to withdraw and that occurred. The matter has to proceed on an undefended basis. The first question is – what material should I take into account?
I have had regard to a number of cases, including Zane & Allan (2008) FLC 93-378 (“Zane & Allan”) and another decision of the Full Court, A & Z (2006) FLC 93-257 (“A & Z”). In terms of the correct procedure to follow it is convenient at this point to note that, so far as the grandparents are concerned, they have reached an agreement with the mother in terms of spending time with the children and the ICL supports the making of those orders. I will proceed to make those orders once I have given these reasons for judgment. The children will spend time with their paternal grandparents once a month in accordance with what has been agreed between the grandparents and the mother, but so far as the father is concerned and in terms of what material the Court should read, I note that, at first instance in Zane & Allen, Le Poer Trench J was of the view that the trial judge had a discretion as to whether or not he or she will exclude the evidence of the excluded party. I note pages 3 and 4 of that decision.
I also note that the previous decision in A & Z. At [72], the majority cited Chang and Su (2002) FLC 93-117 (“Chang & Su”) and spoke of the preference for taking into account material that had been filed by an excluded party. The Chang & Su decision was a s 79 case. A & Z was a contempt case. I think the more cautious approach is the better approach here. This was the approach urged by Mr Taylor and supported by Ms Lyons and I think it is correct that the Court today, in coming to orders in the best interests of the children, the best approach is for the Court to read the father’s affidavits that have been filed in these proceedings.
In this regard, I specifically note the following affidavits that have been filed by the father. He has an affidavit filed 4 April 2019 (and refiled 14 October 2019) and another affidavit filed 23 August 2019 as well as an affidavit filed recently on 6 March 2023. In taking this more cautious approach, there are two points to note.
Firstly, the father has failed to attend the Court and therefore has avoided the scrutiny of cross-examination. The second point and the question that flows from that is what weight should be given to the evidence that he put in those affidavits? It seems to me that, in the circumstances of this case, very little or more likely no weight can be given to what is contained in those affidavits and this is primarily because, notwithstanding the fact that he is the applicant in these parenting proceedings, he has failed to attend at Court for the hearing of the matter.
The father undoubtedly had notice. The most recent solicitor the father had was Ms H. Ms H referred the Court to an affidavit she had sworn, that the father had told her he had no intention of attending at the Court for this trial. So as I say, very little or no weight can be ascribed to his affidavits. Nonetheless, given that the Court is required to make orders where the paramount consideration is the best interests of the children, it is appropriate for me to have read his affidavits. The Court has been aided by the mother’s trial affidavit in particular, as well as the case outline provided by the mother, along with various documents tendered on behalf of the Independent Children’s Lawyer. There is, of course, the tender bundle which has been marked as Exhibit 2, and there are other documents to which I will shortly refer.
The mother was born in 1975 in Country K. The father was born in 1989 in Australia. The parties married in 2010 in Country K. In 2011 the parents moved to Australia – that is the mother and father moved to Australia from Country K. X was born in 2012. Y was born 2014. Z was born in 2016. The Court is required to have regard to the various sections and subsections in Part VII of the Act. One of the primary considerations in determining the best interests – is the need to protect children from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. This primary consideration (s 60CC(2)(b)) is to be given greater weight than the consideration in s 60CC(2)(a) (the benefit to the child having a meaningful relationship with both parents).
The assessment of risk in this case is important because of the seriousness of the allegations made by the mother against the father. The Court is urged to make an order that the children have no time with the father, and I note the evidence upon which that submission is made. So far as the mother’s case is concerned, two findings are sought. Firstly, that the children are at an unacceptable risk of family violence in the event they spend time with their father. Secondly, the children are at unacceptable risk of sexual abuse if they spend time with their father. As to the risk to the children of family violence, the mother has provided significant detail in her affidavit material concerning the history of family violence.
I note, for instance, the evidence contained from paragraphs 55 to 85 of the mother’s trial affidavit filed 10 March 2023. In early 2019, an incident occurred at the family home. The Court has the evidence of the mother in this regard. The Court has another exhibit called the statement of facts that formed part of a criminal prosecution against the father. I have had regard to the precise circumstances involved on that day, and I note the evidence of the mother and the evidence contained in the statement of facts. The father was charged under the Criminal Code Act 1899 (Qld) (“the Criminal Code”) with an offence. The father pleaded guilty to that charge and the plea of guilty was recorded in late 2019. The mother says the separation occurred in early 2019.
Separation was very soon after the incident of early 2019. In that incident, it is noted that the father used his knee and kneed the mother. The father then grabbed the mother’s arm and twisted her arm. The father then pushed the mother down. The mother tried to get up, but the father pushed her down. The mother suffered multiple bruising on her body from the incident. All of this occurred in the context of the mother attempting to pack the children and certain belongings into the car to leave the family home. The father pleaded guilty to the charge. Notwithstanding the fact that he had pleaded guilty to that charge, in paragraph 22 of his affidavit sworn earlier this month, he states:
“22.In relation to domestic violence, I deny all allegations that I was violent to [Ms C Flitter] during the relationship.”
The father’s denial in paragraph 22 of that affidavit is in stark contrast to his plea of guilty on the charge, offences which, of course, were perpetrated by the father on the mother. This is one of the reasons that little or no weight can be given to the father’s affidavits and the evidence contained in those affidavits. I do note there was also a five-year protection order made in early 2019. The father consented to that order, but apparently, it was made without admissions. That, of course, is noted by the Court, and the Court specifically, also, has had regard to the guilty plea on the charge.
So noting the contradiction in the father’s affidavit filed on 6 March and noting the extent of the history of family violence relied upon by the mother – leads me to conclude that the children are at an unacceptable risk of being subjected to or exposed to family violence if they were to spend time with the father, certainly, in any unsupervised setting. I have had regard to all of the relevant considerations relating to risk – including relating to the nature and magnitude of family violence: Isles & Nelissen (2022) 65 Fam LR 288 (“Isles & Nelissen”). There is no evidence or support for any order for supervision of time, and with the father’s non-attendance, it is not a matter that the Court can decide.
The other aspect to the unacceptable risk submission by Mr Taylor and supported by Ms Lyons – relates to the children being at an unacceptable risk of sexual abuse in the care of the father. In relation to the events of early 2019, I have noted the mother’s evidence of what she saw on that day when she went into the bathroom and the father was bathing the child, X. X was six years old at the time. I note, in particular, paragraphs 86 – 88 of the mother’s trial affidavit:
“86. In [early] 2019- [X], who was 6 years old at the time, and was having a bath with [Mr B Flitter]. I was making dinner and folding clothes.
87. I opened the bathroom door and saw that [X] was sitting on [Mr B Flitter’s] chest facing [Mr B Flitter’s] penis and [Mr B Flitter’s] penis was erect. They were both touching his erect penis and their hands were moving up and down. I saw [X’s] face near [Mr B Flitter’s] penis. I grabbed [X] and dressed her.
88. After I asked [Mr B Flitter] about what I had seen in the bath and [Mr B Flitter] said words to the effect “[X] is interested in my penis. It’s education. He smiled at first, but then he began to get angry and said words to the effect to me “the kids touch your breasts and drink milk. It is the same”.”
I also note in the tender bundle, there is a transcript of the police interview with the child, and in addition to the transcript, the ICL has tendered the video recording of the section 93A interview. My attention has been drawn, in particular, to certain pages of the transcript, those being pages 25 to 28 of 133, which are included in full below:
“[X]: No.
[OFFICER L]: Do you know what dad's private part looks like?
[X]: I don't wanna talk about that.
[OFFICER L]: No? How come? 'Cause you can say anything in this room.
[X]: I don't want to. That's [INDISTINCT].
[OFFICER L]: [INDISTINCT]--
[OFFICER M]: [INDISTINCT]. Yeah. And you're not in trouble for anything [INDISTINCT]. There's nothing you can say that you'll get in trouble for, in here.
[X]: I don't really want to.
[OFFICER M]: Okay--
[OFFICER L]: No? Well, was there anything then, you wanna tell me about that part?
[X]: Well, it is long.
[OFFICER L]: Yeah, okay. Tell me everything about it. Thatit's long.
[X]: Well, it was a bit fat.
[OFFICER L]: Mm. Yep.
[X]: Um--
[OFFICER L]: A-, anything else?
[X]: It was a bit squishy.
[OFFICER L]: Bit squishy. How come it was a bit squishy?
[X]: Um, I don't really know. Like, well it had a lot of muscles.
[OFFICER L]: Uh huh. Yep. And how did you see it?
[X]: Well, he was naked in the bath.
[OFFICER L]: Mm. Were you near it?
[X]: Yeah.
[OFFICER L]: Tell me about how close you were.
[X]: Well, I don't really, I don't really know. The, the, maybe like um. The bathtub was a bit longer than that table over there. A little bit longer.
[OFFICER L]: Mm.
25 of 133
[X]: And like, dad was lying in the bath.
[OFFICER L]: Mm. How was he lying in the bath?
[X]: He, well he was a bit too big, he was lying down like this with his legs up and like, like, like the end of the bath was here and he was like, lying down.
[OFFICER L]: Mmhmm. Okay. Where were you?
[X]: Well, maybe I was one metre away.
[OFFICER L]: Okay.
[X]: I don't know.
[OFFICER L]: Okay. So could you see dad's private part?
[X]: Yeah.
[OFFICER L]: Yeah. And was there anything said about that private part?
[X]: No.
[OFFICER L]: No. What were you thinking when you saw that?
[X]: I said nothing, like I'm not gonna touch that.
[OFFICER L]: Okay. You were thinking, not gonna touch that? Did anything happen?
[X]: Nuh. Well yeah, when we started talking, dad started moving the muscles in his private part.
[OFFICER L]: Can you show me what you mean?
[X]: Like, it was big and fat. Like, it was moving up and down, up and down, I think, or sideways.
[OFFICER L]: Yeah.
[X]: Or an angle or something.
[OFFICER L]: Okay. And what, when you said you start, when he, when we started talking, what was being said?
[X]: I don't know.
[OFFICER L]: Was there anything being said about dad's private part?
[X]: No.
[OFFICER L]: No. What were you doing when you saw dad do that?
[X]: I was kinda moving away from it.
26 of 133
[OFFICER L]: Were you?
[X]: Yeah.
[OFFICER L]: Okay. What were your hands doing?
[X]: I was shaking like, [INDISTINCT].
[OFFICER L]: Uh huh.
[X]: And like, looking around, around the bathroom.
[OFFICER L]: Ah, what was dad doing, then?
[X]: He was, when he was moving it up like that.
[OFFICER L]: Yeah.
[X]: My hands were like shaking, like.
[OFFICER L]: Shaking, were they?
[X]: Yeah.
[OFFICER L]: And where were your hands? What did you do with them?
[X]: They were underwater like this. I just like, lied them down and then it started shaking.
[OFFICER L]: Ah. And did, you said dad was like moving it up and down or he was moving it?
[X]: Yes.
[OFFICER L]: Did, what about your body? Was your body touching dad's private part, at any time?
[X]: No. I was just on his leg.
[OFFICER L]: Okay. All right. Did you say anything to dad, then?
[X]: No.
[OFFICER L]: About the private part?
[X]: Mm.
[OFFICER L]: What about your hands, though?
[X]: Mm?
[OFFICER L]: Did?
[X].: Nothing else . Just shaking.
[OFFICER L]: And was there a time, when that was happening, that mum come into the bathroom?
27 of 133
[X]: Well, well dad was shaking it and then mum said ew, don't do that in front of [X].
[OFFICER L]: And what happened then?
[X]: Mum went out of the room and dad started doing it again.
[OFFICER L]: And where were you when that happened?
[X]: Still in the bath, on his leg.
[OFFICER L]: Mm. And what happened? So mum went out of the room and dad started doing it again.
[X]: Yeah.
[OFFICER L]: What was he doing? You tell me what he was doing.
[X]:Um, he was sha-, he was shake, he was moving his private part again.
[OFFICER L]: Mm. Was he moving it any special way?
[X]: No. With his muscles . .
[OFFICER L]: Okay. And what about um his body? What, what else was his body doing when he was doing that?
[X]: Nothing. He was staying still. Only his private parts were.
[OFFICER L]: Was he saying anything?
[X]: No.
[OFFICER L]: Was he--
[X]: Hew-, he was just smiling.
[OFFICER L]: Oh, was he? Was there any noise?
[X]: No.
[OFFICER L]: Okay. And what happened then?
[X]: I started laughing a little.
[OFFICER L]: Mm. Why were you laughing?
[X]: Well, well because, because I started laughing after mum left be-, because she was like ew, I don't wanna see that.
[OFFICER L]: Mm. Okay, then. And so what happened? So dad was still doing that, when mum left. So what happened, then, in the bath? Like, what happened with [INDISTINCT]--
[X]: I, [INDISTINCT] dad started splashing the water at…”
In terms of assessing the risk of sexual abuse of the children, I have the evidence of the mother, and I have the evidence of the transcript from the 93A interview. The father, in the affidavits to which I have referred, has denied any wrongdoing in respect of this particular incident. The father was charged with an offence in relation to this incident under the Criminal Code. Subsequently, the police withdrew the charge.
There is a letter dated early 2021 from the police to the mother. It seems that when the time came for the video recording of the child’s evidence under s 21AK of the Evidence Act1977 (Qld) (“the Queensland Evidence Act”), the child could not actually remember the incident; hence, the police were left with no alternative but to withdraw the charge. That letter is in evidence and is marked Exhibit 4.
Given that the father has failed to present himself for cross-examination, little or no weight, as I have said already, can be given to what he has written in his affidavit in denial of these allegations. What, then, should the Court make of the allegations? I note what was said by the High Court in M v M (1988) 166 CLR 69 (“M & M”) from page 76 - 78:
“Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. 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. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. 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.”
(Footnotes omitted)
The reference by the High Court to the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) predates, of course, the enactment of the Evidence Act1995 (Cth) (“the Evidence Act”). For all intents and purposes, s 140(2)(c) of the Evidence Act replicates the decision of the High Court in Briginshaw, and in Qantas Airways Limited v Gama (2008) 167 FCR 537, the Federal Court, in particular, per Branson J, specifically noted that the well-known passage of Dixon CJ in the Briginshaw decision remains not only relevant but an integral part of a Commonwealth Court’s consideration of the standard of proof when very serious allegations have been made against a person in civil proceedings. One of the matters for the Court to turn its mind to now is whether or not the Court should make a finding - that the sexual abuse alleged by the mother actually occurred. I am particularly mindful of the High Court’s comments at page 77 in M & M where it was stated that:
“No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.”
The High Court went on to say that:
“In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”
In the present case, the submission on behalf of the mother and the ICL is that the Court would not, in these particular circumstances, make a positive finding that the allegation of sexual abuse actually occurred. I note s 140 of the Evidence Act and the comments of Dixon CJ in Briginshaw. My attention has been drawn to the fact that there are some discrepancies between the mother’s account of what she saw and the transcript of the child’s interview with the police.
I am particularly mindful of the fact that the High Court has said there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place. Of course, the Court goes on to say, unless it is impelled by the particular circumstances of the case to do so. I note, for instance, that the child X, could not recall the incident by the time of the video recording of the evidence under s 21AK of the Queensland Evidence Act. This is, of course, good news for the family; in particular, it is good news for the child. On balance, I think that the submissions made by Mr Taylor and by Ms Lyons are correct, and the Court, in this case, should refrain from making a positive finding that the sexual abuse actually occurred.
Nonetheless, I note the evidence from the mother as to what she saw; I note what the child did say to the police at the s 93A interview; I note that very little or no weight can be given to the father's denials – these are factors and matters which I am required to take into account in assessing the nature of and the magnitude of the risk of sexual abuse in the future. This assessment of risk for the future is, of course, one of the fundamental matters to be determined or taken into account, as stated by the High Court at page 77 in M & M. I am also mindful of the decision of the Full Court in Isles & Nelissen and I note that the Full Court provided further explanation and guidance for trial judges by reference to what the High Court said in M v M. My view is that, noting the mother’s evidence, noting the transcript from the s 93A interview, noting that very little or no weight can be given to the denials from the father, noting that he has failed to show up to subject himself to cross-examination – in the particular circumstances of this case, my view is that there is a risk of sexual abuse of these children by the father and my view is that the risk is such that it is an unacceptable risk.
In terms of examining the risk more closely, the incident from the beginning of 2019 of course related to the child X. The difficulty that the court has is, in the absence of the father and the inability to have his evidence and his denials tested in cross-examination – the Court has that evidence from the mother and the s 93A interview in relation to what it is said occurred involving the child X in circumstances where it is open to the court on that evidence, and I do so find, that X is at an unacceptable risk of harm of sexual abuse if she had unsupervised time with the father. My view is that the other two children are also at an unacceptable risk of sexual abuse. There are two aspects to that. One aspect of the possible harm is the harm to themselves.
The other would be that the harm caused to them if, for instance, their sister X was the victim of sexual abuse. It is impossible to disentangle in the circumstances of this case the risk of harm to the child X from the risk of harm to the other children. It is sufficient to say, however, that all three children are at an unacceptable risk of harm in the form of sexual abuse if there was to be unsupervised time with the father. There is no contemplation by the court here of any supervised time with the father, nor can there be, and this is primarily because he has failed to attend at the hearing and failed to submit to cross-examination.
I should add, by way of reasons in terms of the family violence, it is a similar situation because most of the family violence referred to in the evidence by the mother related to physical family violence perpetrated upon her, but also other forms of family violence. Some of the family violence that was physical was perpetrated in front of the children. Other forms of family violence impacted upon the children. Again, it is not possible to say that the father here is a risk to the mother but not to the children. He is not here to be cross-examined and the court then, in assessing risk, is left with the evidence of the mother, left with the charge made by the police and the guilty plea from the father.
So for the reasons that I have stated, the views and the conclusions I have drawn is that all three children are at an unacceptable risk of family violence if they were in the unsupervised care of the father, and the children are at unacceptable risk of sexual abuse if they were in the unsupervised care of the father. Furthermore, as I have said more than once already, the father is not here. There is no case that has been put forward on a positive basis by anyone for there to be a supervised time order. There is no chance of any finding then that any supervision order would in fact reduce the risk of harm to these children. Such a finding is not open on the evidence, and it cannot be contemplated in those circumstances.
In relation to the balance of s 60CC(3) – there is no question that the children have a close and loving relationship with the mother, and they will be living with their mother, who will have sole parental responsibility – because there will be a no time order so far as the father is concerned. That is the only option. I have made findings in relation to family violence and the risk of future family violence to these children and the risk of future sexual abuse to these children, both of which risks I have assessed as being unacceptable. I am satisfied that the mother is well and truly in a position of being able to fulfil all of her obligations as a parent and maintain the children. She certainly has the capacity and the intellect to do so.
The nonattendance of the father and his unwillingness to submit himself to cross-examination make it impossible to make positive findings about many of the other issues under s 60CC(3) so far as the father is concerned. I am not required to make reference to every item of evidence, nor am I required in this judgment to specifically refer to each of the considerations in s 60CC. It is sufficient to note that I have considered all of the matters listed in s 60CC and the various subsections, including s 60CC(3): note Whisprun Pty Ltd v Dickson (2003) 200 ALR 447 at [62]; Housing Commission of New South Wales v Tatmar Pastoral [1983] 3 NSWLR 378 at pp. 385-386; Cox v Pedrana (2013) FLC 93-537 at [29]-[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31]; and Cubbin v Cutler [2018] FamCAFC 84 at [12]-[13]; Eagle & Scarlett (No 2) [2020] FamCAFC 291 at 103; Johanson & Johanson [2022] FedCFamC1A 74 at [43]; Baghti & Baghti and Ors [2015] FamCAFC 71 at [63].
In relation to other sections of the Act – 61DA – the presumption of equal shared parental responsibility is rebutted on a number of grounds – including the findings in relation to family violence and – on the basis that it is demonstrably not in the best interests of the children. Section 65DAA is therefore not relevant. There will be no order for shared parental responsibility. The grandparents and the mother have agreed on very sensible orders for the regulation of the children’s time with the grandparents. The mother, who was born in Country K, and I infer has family still in Country K, is desirous of travelling to Country K with the children to visit her family and friends in that country and that is clearly in the best interests of these children. The orders proposed and which appear in Exhibit 1 as between the grandparents and the mother are in the best interests of the children.
In terms of the actual framing of the orders, there will be a notation at the end that the mother and the grandparents, and supported by the ICL, consented to all of these orders. So far as the father is concerned, because he has failed to attend, then obviously it cannot be designated as a consent order, so far as he is concerned. It is not a consent order, so far as he is concerned. But the orders that are proposed in Exhibit 1 are precisely the orders that are in the best interests of the children and which this Court can make and does make.
Because of the assessment of risk and the findings made concerning the assessment of risk of the children spending time with the father – the no time order is in the best interests of the children – as are the orders that these children will live with their mother and the mother will have sole parental responsibility. The only change I am going to make to Exhibit 1 is to remove the words where it says, “It is ordered by consent.” It will just say “It is ordered on a final basis.” There will be notation C, confirming what I said earlier - that the mother and the paternal grandparents agreed to these orders and asked the Court to make these orders with their consent, and that the ICL supported the making of these orders. That makes it clear enough that they are consent orders so far as the grandparents and the mother are concerned. But, so far as the father is concerned, they cannot be consent orders.
So far as the undertakings that have been filed today by the grandparents, those undertakings are entirely appropriate. The grandparents undertake that they will not bring the children into contact with the father, Mr B Flitter, and the grandparents also undertake that they will ensure that the children are removed if the father is present at any location. Those undertakings form a very firm foundation for the making of these parenting orders on a consent basis between the grandparents and the mother. In fact, the orders that are made on a consent basis between the grandparents and the mother would be difficult to contemplate in the absence of such undertakings. This fact has to be borne in mind by the grandmother and the grandfather. These undertakings are absolutely crucial and must be adhered to at all times. In the actual order that is made, I think the best way to proceed is to put a notation at the start. I prefer to do that with undertakings.
It is clear enough that the father’s application for parenting orders has been finalised because of the proceedings. It might be just as well, in the circumstances of this case, for an order to be made dismissing any other outstanding applications.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 24 May 2023
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