Foster and Foster
[2009] FamCA 499
•11 June 2009
FAMILY COURT OF AUSTRALIA
| FOSTER & FOSTER | [2009] FamCA 499 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Father had conviction for stalking a niece with sexually suggestive material – Whether father had sexually abused another niece (the victim’s sister) – Whether father had exposed a nephew (the victim’s brother) to pornography – Whether father had sexually abused one of his two male children – Whether unacceptable risk to his two male children or either of them in spending unsupervised time with him – Whether unacceptable risk to his two male children or either of them in spending supervised time with him – If no unacceptable risk whether mother has a genuinely held belief that the father has sexually abused one of the children and whether that will have a significant impact on her capacity to parent the children so as to impinge upon their best interests – Conclusion of unacceptable risk if the children spend unsupervised time with the father but no unacceptable risk if the children spend supervised time with the father – Whether mother has a genuinely held belief that the children will suffer psychological harm by spending supervised time with the father because he is manipulative – That case not established – Order made for the two children to spend supervised time with the father – But if error be made and the proper conclusion be that there is no unacceptable risk if the children spend unsupervised time with the father then mother’s case established in relation to unsupervised time as to significant impact on her capacity to parent the children so as to impinge upon their best interests – Thus order would still be that children spend supervised time with the father |
Family Law Act 1975 (Cth) ss 60B, 60CC
| A v A (1998) FLC 92-800 | ||
| APPLICANT: | Mr Foster | |
| RESPONDENT: | Ms Foster |
| FILE NUMBER: | BRF | 2848 | of | 2005 |
| DATE DELIVERED: | 11 June 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 10, 11, 12, 13, 16, 18 and 19 March 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Forrest |
| SOLICITOR FOR THE APPLICANT: | BM Law |
| COUNSEL FOR THE RESPONDENT: | Ms Hogan |
| SOLICITOR FOR THE RESPONDENT: | Barry & Nilsson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
Orders
The children X born … December 2001 and Y born … May 2005 (the children) live with the mother.
The mother have sole parental responsibility for the children and keep the father informed of any decisions which she may make in relation to any major long term issue concerning the children including but not limited to:
(a)their education (both current and future);
(b)their religious and cultural upbringing;
(c)their health;
(d)any changes to the children’s living arrangements that may make it significantly more difficult for the children to spend time with the father pursuant to these orders.
Subject to order 5, the children spend time with the father as may be agreed between the parties, but failing any other agreement, as follows:
(a)on each alternate weekend for at least 2 hours under the supervision of a contact centre as near as practicable to the residences of the parties or one of them on a Saturday or a Sunday with the parties to share equally the costs of the contact centre and the supervision, provided that if the contact centre is able to arrange for supervision away from the contact centre at the cost of the father, for such period of time available through the contact centre on each alternate weekend for up to 8 hours on a Saturday or a Sunday;
(b)in addition, on Christmas Day, Father’s Day, the children’s birthdays and the father’s birthday, or a day as close to each of those days as may be possible, if able to be arranged, for at least 2 hours under the supervision of the contact centre with the parties to share equally the costs of the contact centre and the supervision, provided that if on such days the contact centre is able to arrange for supervision away from the contact centre at the cost of the father, for such period of time available through the contact centre for up to 8 hours on Father’s Day and for up to 4 hours on the other days referred to.
Subject to the contact centre’s approval, Ms S, who is the father’s fiancée, Mrs Foster (Snr), who is the paternal grandmother, Mr Foster (Snr), who is the paternal grandfather and other members of the father’s extended family may attend the supervised time with the father.
Order 3 is to take effect so that in any event the children spend time with the mother as follows:
(a)from 9am until 5pm on Mother’s Day;
(b)for one half of each school holiday period, to be specified by the mother in writing to the father at least one month prior to each school holiday period.
The parties must notify each other as soon as practicable of any serious accident or medical emergency concerning the children or either of them.
The mother must notify the father of the name and address of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the father at his expense any information or reports concerning the children provided that this order is sufficient authorisation without further or other authorisation by the mother.
The mother must authorise the children’s school and/or schools (including any preparatory school) to provide to the father at his expense upon any written request by him to the school copies of school reports concerning the children and circular or other written information concerning their school activities usually provided to parents of children at the particular school or schools, provided that this order is sufficient authorisation without further or other authorisation by the mother.
If by reason of the father’s employment he is not able to spend time with the children as provided in order 3 he must notify the mother in writing at least two weeks before any such scheduled occasion for his spending time with the children.
All written communications between the parties concerning the children be by email or SMS text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.
All previous orders concerning the children are discharged.
All other applications concerning the children are dismissed.
The independent children’s lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Foster & Foster is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 2848 of 2005
| MR FOSTER |
Applicant
And
| MS FOSTER |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern X born in December 2001 and Y born in May 2005, 7½ years and four years respectively, who are the children of Mr Foster (the father) and Ms Foster (the mother).
The father seeks final orders for a shared care living arrangement for the children, amounting, progressively, to substantial and significant time; that the parties have equal shared parental responsibility for the children; and several other parenting and specific issues orders as set out in his amended application filed on 1 August 2008 (his original application, which commenced the proceedings, having been filed on 20 October 2005).
The mother seeks final orders that the children live with her; she have sole parental responsibility for them; and that the children spend no time with the father as set out in her amended response filed on 16 December 2008 (her original response having been filed on 18 November 2005).
Background matters
The father is 39 years. He works in the transport industry, engaged in international routes, with recent training for newly introduced equipment. He lives at R, an inner northern Brisbane suburb. He is in a relationship with Ms S. The father and Ms S plan to marry in the near future.
The mother is also 39 years. She is a professional and is employed as a manager. The mother lives with the children at E, also an inner northern Brisbane suburb, adjacent or near to R.
The parties married in February 1996. They separated on 6 June 2005, shortly after Y’s birth. The circumstances of the separation were that the father moved out of the former matrimonial home, being the home in which the mother and the children still reside. Each describes the separation as traumatic. The cause of the separation, as is common ground, related to the father disclosing to the mother, about two weeks after Y’s birth, that he had sent inappropriate emails to the couple’s niece, N, then a 16 year old girl in Year 11, and the mother’s subsequent discovery of the true content of the emails (ex 2), which bear setting out:
From: […]
Sent: 5 December 2004
To: […]
Subject: Im watching YOU
Hi im one of [L’s] neighbours. Ive seen you and her sneaking out of her house. Ive even followed you and taken pictures. Do you think your parents would be happy with some of the photos ive taken …..what about the trips late at night after her parents have come home. Im thinking of showing them to her parents. What do u think ….. Or would you prefer to work something out….email me b4 the 10th of december or [L’s] dad get the pictures.. you are a naughty girl.
From: […]
Sent: 15 February 2005
To: […]
Subject: see you were at your friends again
I see u were at [L’s] again on the weekend. Ive been chatting with her Dad and it seems he knows alot of what goes on there but im sure your parents dont. ive seen your mum drop u off in that yellow car and ive found out your dad works in a bank wont be long till I find out where. So here is the deal ….if you dont want them to know what youve been getting up to take your phone or digital camra or whatever you have and i want 4 pics. you dont have to put your face in them but i want one of you in your cutest underwear .. one topless, one bottomless and one nude.. just take them in a mirror so no one else has to know. Now dont go telling [L] or anyone else just do it and i go away. No one will ever know they are pics of you and i will be happy. i want them by Thursday.
28 February 2005 [other details not in exhibit]
Now I know your dad works at […]. He starts getting faxs tomorow if i dont get my pics. Youre the only loser …. whats worse him finding out what you do .. or me getting a couple of pics its your choice but im finished playing around.
12 March 2005 [other details not in exhibit]
So how bout [L’s] brother and his run in with the law. It would be terrible if your olds found out about that. Obviously what I sent your dad didnt bother you. Cmon your hot. I dont want to cause you any problems. let me have the pics im even willing to give you some cash and im talking hundreds if youde be up for it. Let me know.
23 March 2005 [other details not in exhibit]
Wow quite the detective. [The father] knows nothing about this however his only crime was letting me use his computer to “check my emails”. Anyway seems your pretty pissed off so Ill disappear. Dont bother responding to this I wont be checking up on it again. Have a nice life.
In February 2008, the father pleaded guilty to a stalking charge concerning N, based on the emails. No conviction was recorded and the father was required to perform 220 hours community service.
At the time of the father’s plea, he was facing five criminal charges in respect of which he had been committed for trial, one other concerning N, two concerning N’s sister A and one concerning their brother P, also respectively the father’s niece and nephew.
The five counts respectively (according to N’s affidavit, par 16) were:
Count 1: Between 1 January 2004 and 25 March 2005, at Brisbane, unlawfully stalking N
Count 2: Wilfully exposing N, a child under 16 years, to an indecent film between December 2001 and 30 September 2003
Counts 3 & 4: Unlawfully and indecently dealing with A between 31 December 1997 and 28 March 1998
Count 5: Wilfully exposing P, a child under 16 years, to an indecent film between 1 March 1998 and 1 July 1999.
The father’s plea of guilty in respect of count 1 was made in the context of a “plea bargain” such that the four other charges (counts 2-5) were not proceeded with.
In late 2005, and on other occasions, X made disclosures to Ms D, family therapist, the mother and possibly also to the maternal grandmother, who lives next door to the mother and the children.
Since the parties’ separation, apart from one unsupervised overnight occasion in October 2005, the children have spent supervised time with the father pursuant to interim orders made on 21 December 2005 and further interim orders made on 23 November 2006, both at and away from various contact centres including, for a short time (mid December 2006 to mid January 2007), supervision by a Ms W. At times, the contact has been two hours weekly and at other times two hours fortnightly, generally according to availability of a contact centre and its supervisors. Since mid 2007, by agreement, and having regard to availability of contact centres, the parties have managed to ensure that at least fortnightly, if not weekly, the children have spent supervised time with the father.
During the short period of Ms W’s supervision, the time spent with the father included time at the father’s house, the paternal grandmother’s house and the Private Hospital where the paternal grandfather lives as the result of a stroke in 1996 leaving him quadriplegic.
On other occasions, the paternal grandmother has attended with the father at some of the contact centres, giving assistance to the father and the supervisors.
The parties themselves, however, have not spoken to each other or had any other form of communication, realistically, since October 2005.
The issues
Counsel agreed that the issues for determination are:
1Whether the father has sexually abused X.
2Whether there is an unacceptable risk that X and/or Y may be subjected to or exposed to sexual abuse or suffer physical or psychological harm from being subjected to or exposed to the father if they should spend time with him either:
(a) unsupervised; or
(b) supervised.
3If there be findings that the father has not sexually abused X and/or that there is no unacceptable risk, whether the mother has a genuinely held belief that such a risk exists and whether that will have a significant impact on her capacity to parent the children and so impinge on their best interests.
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Principles relevant to findings of sexual abuse
In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical 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 order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
Approach to the analysis of evidence relating to sexual abuse disclosures
In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred … .
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.
Principles relating to unacceptable risk of sexual abuse
In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“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.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act [now s 65E] and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. … ;
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.;
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)
In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.
The evidence
The father relied upon affidavits by himself, Mrs Foster (Snr), who is the paternal grandmother, Ms S, who is the father’s fiancée, Ms W, who was the children’s supervisor between mid December 2006 and mid January 2007 and Mr C, clinical psychologist.
The mother relied upon affidavits by herself, N, A and P, to whom I have made reference earlier, their mother Ms O, who is the mother’s sister, the maternal grandmother, Ms D, family therapist and Ms B, psychologist.
The independent children’s lawyer relied upon affidavits by Dr V, consultant psychiatrist, and Mr T, clinical psychologist.
The parties referred also to the various documentary exhibits (exs 1-8), including a volume of agreed documents (ex 1) selected from the documents produced pursuant to subpoenae, and as well a videotaped police interview with X (ex 9).
I do not propose, as it is not necessary, to set out any general synopsis of the parties’ or the independent children’s lawyer’s evidence. Instead, I will refer to selected parts of the evidence when dealing with the statutory matters I must consider.
I have carefully considered all of the evidence. However, if I should not refer in these reasons to all of it or to any parts of it, it ought not be inferred that all of the evidence has not carefully been considered.
The submissions
Similarly, I do not propose, as it is not necessary, to set out any general synopsis of the parties’ or the independent children’s lawyer’s submissions, all of which also have been carefully considered.
The children’s best interests – the statutory matters
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
On all of the evidence, there is benefit to the children of having a meaningful relationship with both of their parents. It is pertinent however to observe the evidence concerning the children and the father. Mr T said that the children have a significant and important relationship with the father, that a strong bond and attachment exists between the children and the father and that it would be “very detrimental” to the children for the relationship between them and the father to be ceased (second report, pp10-11). Dr V shared this opinion (second report, p10).
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
It is unlikely that there is a need to protect the children from being subjected to or exposed to neglect or family violence.
There is however a need to consider closely the evidence as to whether there is a need to protect the children or either or them from physical or psychological harm from being subjected to or exposed to sexual abuse by the father.
Indeed, of the three issues identified by Counsel for my determination, the first two concern whether the father has sexually abused X and whether there is an unacceptable risk that X and/or Y may be subjected to or exposed to sexual abuse or suffer physical or psychological harm from being subjected to or exposed to the father if they should spend time with him, either unsupervised or supervised.
It is appropriate to deal with each of these in turn.
Allegations/disclosures concerning X
Counsel agreed the following summary of allegations and/or disclosures concerning X:
1 The mother’s evidence that before the parties’ separation she saw the father and X in the bath, the father sitting in the bath and X standing in the bath, with the father “tickling [X’s] penis”. The mother said she said to the father “We don’t do that”, and that he looked at her “in a challenging way” and stopped.
2 The mother’s evidence that after the separation, at about the time of the appointments she arranged for X with Ms D (these were 28 October and 3 and 7 November 2005), she saw X (then nearly 4 years) naked in his bedroom with an erection, masturbating with his hand. He had a plastic snake tied around his stomach and tied to the bedpost. The mother was adamant that what she saw was an erection, and that X was masturbating (demonstrating a curled hand repetitive movement) which was not like just a “pull” or a “tug”.
3 N’s evidence that in or about May/June 2005, X asked her if she wanted to play “the doctor’s game”. N said that she agreed, with no knowledge of what the game actually involved, with X then saying “You need to take off your clothes and lie very still on the bed”.
4 Ms D’s evidence that on 28 October 2005 X described “the doctor’s game” to her as “You have to lie very still on the bed”, being a game played with “daddy”; and that on 3 November 2005 X told her that the doctor’s game “involves tickling” on his bottom, which he doesn’t like because it hurts sometimes.
5 Ms D’s evidence that during her sessions with him X tried to unzip her upper garment and to lift up Ms D’s daughter’s upper garment.
6 The mother’s evidence of X “rubbing skin on skin” with Y’s “tummy”, and the mother asking X what he was doing to which he replied it was “the doctor’s game”.
7 The mother’s evidence of a disclosure by X on 15 March 2006 to her that the father had tickled his private parts “very gently” being on his “willy” and “all the way through to my bottom” and saying “That’s it mummy, that’s the secret” with the mother describing X then as looking “very relieved” at having told her the secret.
8 The mother’s evidence that on 25 June 2006 X told her that what he had said about his father “didn’t happen” and “I don’t want you to tell Daddy. I will be very angry if you tell”.
Father’s denials
The father denied all allegations concerning X. In particular, his evidence reflected what was recorded by Mr T (first report, par 63) to the effect that he and X enjoyed a “tickling game” which was innocent and occurred as witnessed by Mr T, that is, with much laughter and fun and no inappropriate physical contact.
Mr T’s interviews with X
If I were to paraphrase Mr T’s evidence concerning his interviews with X, it would suffer from that exercise and thus I will set out selected paragraphs, so as to retain both their content and force:
53. Later in that session I made specific enquiries of [X] about specific behaviours and interactions. I asked [X] if sometimes funny or uncomfortable things happen with his Dad. [X] replied “no”. I asked [X] if his father was sometimes a scary person who made [X] feel worried. Again [X] replied “no”. I asked [X] if sometimes he and his father play and have lots of fun and maybe do tickling, [X] replied “yes”. I asked [X] “how does that happen” and [X] said “we do tickling on the lounge”. I asked “is it a special game or just tickling?” [X] replied “no it’s just tickling”. I asked [X] where his father tickles him and he said “everywhere”. I asked “what parts of your body?” and he reiterated “everywhere”. I got [X] to show me and he tickled around his abdomen and chest area, and on and under his arms. I asked [X] to tell me ‘everything’ he could remember about tickling from his Dad. He said, “it’s tickling. Daddy tickles me and I sometimes tickle him. I do lots of laughing, and Daddy does lots of laughing.” After a brief period, I further asked [X] if the tickling was ever naughty and he replied “nope”. I specifically enquired whether his father had been naughty with him and [X] replied “he hasn’t cause he is good guy cause he does everything”.
…
56. I asked [X] on that occasion to ‘tell me everything about Dad and things they do”. [X] told me that he had already told me he was seeing his father that day and they do digging. I asked [X] what sort of things happen, and he answered “fun things” and that they play together. [X] did not make any comment or disclosure with regard to inappropriate behaviour on the part of his father. He did not make any negative comments about his father.
57. Later I asked [X] if his mother and father are happy together and he told me that they are not. He also told me, “Daddy’s not coming home ever”. He went on to explain “Because they have a problem”. I asked [X] what sort of problem, and he said he did not know. I asked if his mother had a problem, and he said, “nope”, and I asked if his father had a problem, and he said, “no”. Sometime later [X] told me he is “only going to see Daddy at the place”. I asked why that was and he said he did not know. I asked [X] if something had happened, and [X] said “No”. I said, “maybe something to you”, and he replied, “No”.
…
60. [The father] was noted to be appropriate in his language conversation and play with [X]. He easily and readily got on the floor at [X’s] level to play and interact with him. [The father] was well able to maintain a conversation and topics of interest for [X] and toward the end of the session was well able to encourage and involve [X] in tidying up the toys. There were no indications from [X] of any weariness or guardedness with regard to his father. [X] appeared to be happy and excited to see and interact with his father on that occasion.
61. The appointment on 2.05.06 was scheduled for observation of contact and interaction between [X] and [the father]. I met initially with [X] individually for approximately 10 minutes. On that occasion [X] appeared to be quite happy to come on his own with me into my office. I asked if he knew what we were doing today and he indicated he was expecting to see his father. I asked [X] a number of questions regarding his likes of games, activities, and doing things with his father. He always responded in affirmative and positive ways, particularly regarding his father. During my enquiries [X] had been engaging in some drawing and after a few more moments of drawing on his own I indicated to [X] that his mother had told me about the typical game that he had talked to her about and I asked him if he could tell me all about it. [X] replied “yes, well sometimes daddy tickles me sometimes I say no cause I don’t want to be tickled, and sometimes I say yes because it’s fun”. I asked [X] how is the tickle game played and he replied “daddy tickles me”. I asked him if he tickles his father and [X] replied “yes sometimes”. I asked [X] where he gets tickled and [X] said, “all over”. I asked [X] to show me what “all over” meant and where the tickling happened. [X] demonstrated tickling approximately from his shoulders down to about his waist then he leaned over and tickled some on his feet and some on his face. I asked [X] if there was ever tickling on his bottom and [X] said “ha.. .you know you’re not allowed to say bum ‘cause that’s rude”. I replied “oh”. I asked if ‘Dad is ever rude’, and [X] replied “no”. I questioned if “sometimes in the tickling game do rude parts get tickled”. [X] replied “No, no”.
…
63. With approximately 10 minutes left in the session [X] needed to go to the toilet. He asked his father to come along and [the father] appropriately indicated that he would come and wait outside while I took [X] to the toilet. [X] appeared to be satisfied. Upon returning to my office [X] asked his father to play the tickle game. [The father] appeared to pause and then smiled happily. [X] then crowded in and towards his father and [the father] began tickling [X]. [X] appeared to be very much in good humour and responded with much [X]. After a few minutes I asked “is that the ticking game [X]?” [X] replied laughing “yes”. I asked him if this was the tickling game that he liked and he replied “ummm…yes”. The tickling game lasted for approximately three minutes and occasionally [X] attempted to tickle his father and his father joined in the laughter. A short time later I indicated that the session needed to finish. My secretary escorted [X] to his mother. I spent approximately five minutes with [the father] reviewing that session. He commented, “so that’s the tickling game and that’s how it happens and [X] does ask about it”. [The father] spoke about [X] being settled on that occasion and spoke in terms about their contact that had commenced at the Contact Centre. He spoke briefly about [Y] having attended and made comments about how that appeared to be difficult for them given his age and the fact that [Y] was inexperienced with his father.
…
69. Across the appointments that I have held with [X] there has not been any disclosure of any physical, psychological or sexual abuse towards him by [the father]. I have followed a standard interview protocol that I regularly use in my forensic work with alleged victims and witnesses of abuse. [X] has not made any disclosures during any free narrative or free recall, or open interaction with me about his father. Furthermore, in response to general and specific questions, [X] has not made any disclosures or presented any information of concern about [the father]. In response to specific questions, [X] has denied any inappropriate behaviour taking place. [X] has been consistent in these responses across several appointments with me.
…
74. In my expert opinion there has not been particular or compelling evidence that [X] has been sexually abused or interfered with by his father. [The father] has admitted that he sent inappropriate e-mails to [N]. Other allegations made against him have not been tested. From my understanding of the research and literature on paedophilia, incest, and sexual abuse, and from interview and interaction with [X] and [the father] individually and in interaction sessions, I do not belief that [X], as a four year old biological son of [the father], is at risk for being abused or inappropriately dealt with by [the father]. Furthermore in my opinion [X] is not at risk from the modelling of poor, inappropriate or immoral behaviour now or any more than he was in the past on the part of his father. (emphasis added)
Whether evidence of findings if any concerning A, N and P are relevant to findings if any concerning X
Counsel for the parties and the independent children’s lawyer submitted that the body of evidence concerning disclosures by A, N and P, and the findings if any I should make in regard to their evidence, are matters relevant to the task of finding whether the father has sexually abused X, as well as to my determination of whether there is unacceptable risk of sexual abuse by the father of X and/or Y. Whilst I agree with Counsel that these matters are relevant to the question of unacceptable risk, I do not consider them probative of or relevant to the separate question of whether the father has sexually abused X. However, as I was urged by Counsel to consider my findings, if any, concerning A, N and P as relevant to the separate question of whether the father has sexually abused X, I will do so, and accordingly turn now to that subject matter.
Allegations/disclosures concerning A, N and P
Counsel agreed the following summary of allegations and/or disclosures concerning A, N and P:
A
1A’s evidence that in 1997, when she was about 15 years, she and the father had been watching television on a couch in Sydney, the father in a sitting position and A lying with her head on a pillow on the father’s right knee. A said she fell asleep and awoke to see the father lifting her underpants. She woke when feeling the father touching her, lifting up her underpants and pyjama shorts. She looked at the father and saw that he was looking at her underwear. She believes the father had not seen her wake up, or look at him, as he did not stop what he was doing. She did not know what to do or say, so she “rolled over”, stayed in that position “for a few seconds” and then moved from the couch and left the room.
2A’s evidence that in 1998, at C, when she was 15 years but almost 16 years, she was asleep in her bed in her bedroom, at about 10am, on a day she was either home from school sick or it may still have been school holidays. It was shortly after a family holiday at Coolangatta during the Christmas holidays 1997/1998. It was before her sixteenth birthday, which occurred in March 1998. She awoke to find the father being in her bedroom and tickling her stomach. She is unsure whether the father was standing beside her bed or sitting on the side of her bed. When she awoke he stopped tickling her stomach and moved his hand under her singlet top to her breast which he “cupped”. He then pulled down her singlet and moved his hand to her pants. His hand then was under the waste band of her pants and he touched her “on the vagina”. He touched her there “for a second”. She questioned “What are you doing?”. He did not say anything and left the room. A could then recall sitting on her bed and hearing him chatting to her mother, Ms O, in the kitchen “like nothing had happened”.
3A’s evidence that in about 1998, when she was 16 years, at F, where the father and mother then lived, the father invited her to see “cybersex” on a computer.
4A’s evidence that on several occasions the father showed her pornographic material on his computer and on one occasion showed her and P part of a film or video called “Debbie Does Dallas” which included pornography.
5Other evidence that the father’s telephone address book had the entry “Sexy [A]” in relation to A’s telephone number.
N
1N’s evidence that in about 2001, 2002 or 2003, when she was in year 8, 9 or 10 (about age 13, 14, or 15 years), at a time when she used the email address …@hotmail.com, she received emails via a chatroom from “JN”, which used the same “way” that the father spoke (wrote) and the same font and text that the father used, and which asked questions such as whether she had a boyfriend and “how far” she had “been with him”.
2N’s evidence that in about 2001 or 2002, in about years 8 or 9 (about age 13 or 14 years), the father showed her pornography on a computer, at the father’s and the mother’s then home at W, in an enclosed verandah room off the dining room, being not visible from the kitchen and deck area from where other family members were gathered, the material including a movie file of a woman sucking a man’s penis.
3N’s evidence that in early 2004, when she was 16 years, after she had changed her email address to …@hotmail.com she received a further communication from “JN” whom she knew to be the father because of inclusion of his photograph.
4N’s evidence that between 12 December 2004 and 23 March 2005 she received from the father the five emails (ex 2), N then being 16 years in years 11/12.
P
1P’s evidence that from when he was about 11 years he was “shown porn” by the father on “virtually every visit” to the father’s and the mother’s home.
2P’s evidence that when he was 16 or 17 years the father lent him a video camera and suggested that he record sexual activity between himself and his girlfriend.
3P’s evidence that in 1999 he saw on the father’s computer a “fantasy story” which apparently had been a prepared script but with facility to change the names of the characters, the named characters being “Uncle [K]”, N and her cousin E, both aged about 10 or 11 years at the time. The story stated that the girls had come to “Uncle K’s” house for a sleepover and had sex with “Uncle K” in the story, which included phrases such as “playing with her tits” and “come over and sit on me”.
4P’s evidence that in the father’s and the mother’s then home at F, in about 2001, the father showed him a video clip attachment of a woman “administering oral sex to a horse”.
5P’s evidence that the father gave him a password for the purpose of viewing internet sites, which included with footage which was “largely pornographic”.
Father’s denials
The father denied all allegations concerning A, N and P, save in respect of some of the more minor matters, for which he offered innocent explanation. For example, in relation to P, matter 2, the father said that the video camera was for an innocent purpose; in relation to P, matter 5, the father said that the password was for general website use not pornographic website use; in relation to A, matter 4, the father said that he showed only a small part of “Debbie Does Dallas”, and only as an example of “bad acting”; and in relation to A, matter 5, the father admitted the inclusion in his telephone address book of “Sexy A” and that “with hindsight” it was inappropriate.
Findings A, N and P
Overview
I accept the evidence of each of A, N and P in relation to their allegations, for the following reasons. First, the evidence in each of their affidavits has the “ring of truth” by cogent detail and internal consistency, and none of the hallmark indications of fabrication. Secondly, I had the opportunity to observe very closely each of A, N and P in the witness box under cross examination. Each was quiet, serious, direct and forthright, although plainly pained by the ordeal of describing their respective experiences with the father and being questioned about them. Certainly, it did not appear to me that any of them had colluded or had any motive for mistruth. On the contrary, they presented individually and collectively as three very young adults, 26, 20 and 24 respectively at the time of trial, a sibling set heartbroken and troubled by the experiences which individually they recounted.
My acceptance of their evidence, however, does not have the effect, necessarily, that I should make actual findings in respect of all or any matters alleged, having regard to the caution by the High Court in M & M that in this Court findings ought not be made unless the Court is impelled to do so, and I will turn now to my decision as to the findings which I will make.
A
I accept A’s evidence concerning matters 1 and 2, as described above, as being events which occurred substantially as A has described them. In relation to the matters in s 140(2) of the Evidence Act, I take into account that the nature of these proceedings is that they are parenting proceedings, with the subject matter of the proceedings being the best interests of X and Y, the gravity of the matters alleged and the gravity of the consequences of positive findings in relation to the matters alleged, in particular that matters 1 and 2 amount to allegations of actual sexual abuse by the father of his niece. I take into account also the cautions given by the High Court in M & M that in these parenting proceedings I ought not make positive findings that sexual abuse has actually taken place unless I am impelled by the particular circumstances of the case to do so. In my view, this is such a case, not only because of the nature and gravity of A’s allegations, but because in this case one of the matters I am required to determine is whether there will be unacceptable risk of sexual abuse by the father of X and/or Y. Plainly, any findings of actual sexual abuse by the father of any children cannot be said to be irrelevant to that question, and plainly is very serious subject matter to be taken into account in relation to that question.
As to the strength of A’s evidence concerning matters 1 and 2, I have carefully considered the criticisms of it summarized by Mr Forrest of Counsel, for the father, and by Mr Andrew of Counsel, for the independent children’s lawyer, in their respective written submissions. Without referring in detail to all of those criticisms, all of which I have carefully weighed and taken into account, I will mention some, by way of example. Counsel referred to inconsistency between A’s evidence and that of her mother Ms O as to their versions of matter 2 (Ms O, A’s mother, said that she followed the father to A’s bedroom and actually saw him there, whereas A said her mother was in the kitchen); and, in relation to matter 1, Counsel referred to the suggested unlikeliness of A, in Sydney, in winter, having had on light clothing, or indeed of being in the position of lying with her head on the father’s knee, particularly with other family members in either the same room or nearby rooms. In this regard, however, I note A’s evidence that her head was not directly on the father’s knee, but on a pillow on his knee, which in a trusting family environment does not seem to me to be unlikely or of itself untoward.
These matters, and the other matters of criticism in Counsels’ careful submissions, in my view are proper observations by Counsel, but overall are minor and of little consequence when compared with the clarity, cogency and detail provided by A in her own evidence and her demeanour in the courtroom when being cross examined about these matters. I had the opportunity to observe A in the witness box, as a young woman now of 26 years. Her demeanour was consistent with veracity of the events she described. I am satisfied she has not fabricated the events, and there is no case of her mistaking the father as the perpetrator upon her of the sexual abuse she suffered as described in matters 1 and 2.
I have taken into account the father’s denials of the allegations of his touching A; and taken into account also that A did not proceed with the criminal charges against the father in relation to these matters, being counts 3 & 4 set out above (par 9 of these reasons). However, A explained in her affidavit at pars 50-62, which I accept, her reasons for not proceeding with the criminal charges, but her willingness nonetheless to give evidence in these parenting proceedings concerning X and Y.
Based on the above analysis, and having considered carefully all of the relevant evidence in the light of s 140 of the Evidence Act, I find that the events described in matters 1 and 2 concerning A are proved.
In relation to matters 3 and 4 concerning A, whilst I accept A’s evidence, in the circumstances of my having made positive findings in relation to matters 1 and 2, which on any view are far more serious allegations, I do not feel impelled to make findings in relation to matters 3 and 4, which are allegations of less gravity. I will however make the following observations. In relation to matter 4, P said in his evidence that he did not recall any such incident as the film “Debbie Does Dallas”. However, rather than impacting on A’s credibility in relation to her description of this event, or overall, it seems to me to be more likely that it is a detail P may have forgotten, particularly because of his evidence, which I accept, that he was “shown porn” by the father on “virtually every visit” to the father’s and the mother’s home. There is therefore no logical reason for P particularly to recall the film “Debbie Does Dallas”, as opposed to any other pornography. Further, it was put that P would be likely to recall an occasion of the father showing pornography while his sister A was present, as opposed to the father showing him pornography with neither of his sisters present. Overall, however, I do not regard P’s evidence of not recalling such an incident as impacting negatively on A’s evidence in relation to this matter. Rather, as I have explained, I do not feel impelled to make findings in relation to matters 3 and 4, and further observation as to them is unnecessary, save that the father, in relation to the film “Debbie Does Dallas” admitted showing a small part of it to one of the children, but only as an example of “bad acting”.
In relation to matter 5, the father acknowledged “with hindsight” that his inclusion in his telephone number list of “Sexy A” in relation to his niece was inappropriate. In the circumstances however of my findings in relation to matters 1 and 2, it is not necessary to deal further with matter 5.
N
I accept N’s evidence in relation to matters 1, 2 and 3 concerning her, having observed N, now a young woman of 20 years, whose demeanour was consistent with veracity of the events she described. However, having regard to matter 4 and the father’s conviction in relation to the emails which he sent to N (ex 2), I am not impelled by the circumstances of the case to make findings in relation to matters 1, 2 and 3.
P
I also accept P’s evidence in relation to all five matters concerning him. P, at the time of the trial, presented as a young man of 24 years who, like his sisters, had a careful and serious demeanour in the witness box. However, I am not impelled by the circumstances of the case to make findings other than in relation to matters 3 and 4, which P described with compelling detail. In relation to matter 4, P said “Still to this day, the material [the father] showed me involving the horse and the woman is the most disgusting thing I have ever seen”. Having regard to s 140(2) of the Evidence Act, and the matters discussed already which I am required to consider, I find matters 3 and 4 proved. In contrast, whilst I do not doubt P’s evidence in relation to matters 1, 2 and 5, and accept it, the subject matter, even if taken to be proved, involves matters of generality rather than particularity, such that I am not impelled by the circumstances of the case to make findings.
Findings - X
Whilst matters 1 to 8 concerning X, when read as a whole, are disturbing, I will not make findings concerning X, for several reasons.
First, X at the time of the trial was only 7 years and 3 months, and was only about 3½- 4½ years during the period of the allegations/disclosures, such that his own evidence plainly cannot be regarded as reliable.
Secondly, whilst there is consistency in some of what has been attributed to X, for example, repeated reference to “the doctor’s game”; his description to at least two witnesses, N and Ms D, in relation to that game that “You have to lie very still on the bed”; and his telling both Ms D and his mother of being “tickled”, describing to Ms D that the tickling hurt his bottom, and describing to the mother that the tickling was “right through to my bottom”, it is difficult to exclude, having regard to X’s age at the time, that there may be innocent explanation for what X has described.
Thirdly, although in combination the matters just described may perhaps tend to indicate that “something has actually occurred”, unfortunately some of X’s evidence given to Ms D resulted from leading questions, for example:
[MS D]: Does the doctor play games?
[X]: Yes, you have to lie very still on the bed.
…
[MS D]: Why, does tickling hurt sometimes?
[X]: Yes.
Fourthly, whilst there is no reason to doubt the mother’s evidence of having seen the father “tickling” X’s penis in the bath, in that no doubt that is her belief as to what she saw, often, without more, there may be innocent explanation for such (apparent) observation, such that the incident may not have been what to the mother it appeared to be.
Fifthly, the incident of X “masturbating” while having a plastic snake tied around his stomach and the bedpost, whilst capable of sinister explanation, is a subject matter which may also have innocent explanation, having regard to X’s age at the time, and is not necessarily consistent only with sexualisation as the result of abuse. The same applies to the incident of X “rubbing skin on skin” with Y’s “tummy”.
Sixthly, the matter of X trying to unzip Ms D’s upper garment and to lift up her daughter’s upper garment may also have innocent explanation, being innocent exploration.
On the other hand, the list of matters 1 to 8 concerning X, being the list as agreed by Counsel, does not include evidence by the maternal grandmother of X telling her shortly before the separation that he had a “sore bottom”, but since the parties’ separation has not mentioned to her any such thing. This is disturbing, because X told Ms D of having had his bottom tickled and that it hurt. Further, matters 7 and 8 concerning X, that is, of telling the mother his “secret” of being tickled by the father “very gently” on his “willy”, “all the way through to my bottom”, looking “very relieved” at having disclosed the secret, and then three months later recanting what he had told her is also disturbing.
Overall, however, the evidence either in relation to each individual incident the subject of allegation and/or disclosure, and also as a whole, having regard to X’s age, and the other observations which I have made, lacks the degree of reliability, strength and cogency which would make it appropriate to make a positive finding that the father has sexually abused X.
In addition, it is proper that I have regard to Mr T’s evidence, in the passages set out above, and in particular his conclusion, based upon considerable forensic experience with children, that in his expert opinion there is not “particular or compelling evidence” that X has been sexually abused or interfered with by the father. As is plain, Mr T has not had the opportunity which I have had as the trial judge to consider matters 1-8 and all of the evidence concerning them. However, as to these matters, I have already made observation and independently concluded that the evidence is insufficient to make positive findings.
In so concluding, I have taken into account, as urged by Counsel, the body of evidence in relation to A, N and P and my findings concerning them. In my view, although I have made findings in relation to matters 1 and 2 concerning A and matters 3 and 4 concerning P, and there is also the circumstance of the father’s conviction concerning the emails he sent to N, these matters do not assist the evidentiary burden of concluding that “something has actually occurred” with X.
Thus, although collectively matters 1–8 concerning X are disturbing, as are the other matters mentioned, having regard to all of the evidence and in particular the matters in s 140(2) of the Evidence Act which I am obliged to take into account, I conclude that the evidence is not sufficient having regard to the gravity of the matters alleged and the consequences of any positive findings to make any finding that the father has sexually abused X.
However, as may be clear from my analysis of the evidence and in particular the matters I have described as disturbing (above, par 82) when coupled with my observations as to consistency in some of X’s disclosures (above, par 77) the case is one in which I am also not prepared to make a finding that the father has not sexually abused X, and I am left with lingering doubt, so that the question remains uncertain.
Unacceptable risk?
The circumstance that I have not made a positive finding that the father has sexually abused X does not have the effect that there is the absence of a need to protect the children from physical or psychological harm from being subjected to or exposed to sexual abuse by the father, and so I turn now to the question whether there may be unacceptable risk so that protection is warranted.
Point 7 of Mr Fogarty’s summary of principles, approved by the Full Court in Johnson & Page (above), but subject to the qualification which I have mentioned, makes clear that the components which go to make up a conclusion of unacceptable risk need not each be established on the balance of probabilities and that the Court may reach a conclusion of unacceptable risk from the accumulation of factors none or some only of which are proved on the balance of probabilities. The Full Court’s observation (at [71]) was that, nonetheless, a judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered satisfy that standard of proof.
As to whether a risk exists of sexual abuse by the father of X and/or Y, and if it exists its level or degree, I conclude on all of the evidence that a risk does exist and that it is a significant risk. The components which cause me to conclude this are, by accumulation, a combination of matters some of which are established on the balance of probabilities and some not. In the former category, there are the two positive findings I have made that the father sexually abused A and the two positive findings I have made concerning P, that is the matter concerning the “fantasy story” and the video clip attachment of a woman “administering oral sex to a horse”. There is also the circumstance of the father’s conviction in relation to the emails to N (ex 2), which on any view contain offensive and suggestive material with a request for nude pictures in the context of intimidation and bribery. In the latter category there is the balance of the evidence of L, N and P, which I have said I accept, but have not made findings, and the matters concerning X which I have described as “disturbing” (above, par 82) and my observations as to consistency in some of X’s disclosures (above, par 77), as to which, again, I have not made findings. In particular, I would refer to X’s repeated references to “the doctor’s game” with the father described by X as his having to lie very still on the bed and involving “tickling” on his bottom; his disclosures to the mother and Ms D of the father having tickled his bottom and to Ms D that the tickling hurt his bottom; X telling the maternal grandmother before the separation of having a sore bottom, but not subsequently, especially in the context of X telling Ms D of the father having tickled/hurt his bottom; the mother’s description of seeing the father tickling X’s penis in the bath, despite my observation that this incident may not have been what it appeared to be; and finally X’s confiding in the mother of his “secret” and then recanting it, in the context of X then saying “I don’t want you to tell Daddy”.
The father relied upon the opinion of Mr C, psychologist, in his report dated 3 March 2009, after private therapy with the father between July 2008 and February 2009 (3 July, 26 August and 10 December 2008 and 12 January and 11 February 2009) that on the application of the Stable 2000 “offending cycle” test, consisting of dynamic risk factors that could be responsive to intervention, “Overall, [the father] scored 0 on the scales identified in the Stable 2000”, his further opinion that he was at “low risk of recidivism” and his conclusion:
57… Based on my therapy and assessment with [the father] I hold the opinion that it is very unlikely that a similar form of stalking or sexually inappropriate behaviours would reoccur.
However, Mr C had recorded much earlier in his report, at par 6:
6[The father] stated that he had never been accused, charged or convicted for any prior non-sexual or sexual contact offences. Reportedly he has no other criminal charges or convictions in any state of Australia or any other country.
In context, and by reference to par 2 of the report, it is plain that the reference to “no other” criminal charges meant other than the criminal charge in respect of which he pleaded guilty to stalking N. Thus, it is plain that, at the time of writing his opinion, Mr C knew nothing of the further allegations by N and the allegations by A and P that were the subject of the criminal charges counts 2-5, in respect of which the father had been committed for trial, nor indeed any of the allegations/disclosures concerning X. Further, there were several examples in the evidence of the father either being less than frank with Mr C, or downright dishonest, in what he told him. One example will suffice. At par 46 of his report (middle of the paragraph) Mr C records that the father “stated that if he wanted to find someone to have intercourse with he would have no idea on how to go about it”. However, in other evidence there was reference to his having claimed to have said that he had “slept with over 40 women”.
Upon learning of the true state of the allegations/disclosures concerning A, N, P and X, as put to Mr C orally in the witness box, Mr C plainly was frustrated that the relationship of trust between himself and the father had been abused and that his opinion had been enticed by dishonesty.
Plainly, by the matters to which I have referred, and the father’s own dishonesty, Mr C’s opinion was utterly undermined and must be put to one side.
In coming to my conclusion on all of the evidence that a risk of sexual abuse does exist and that it is a significant risk, I have had careful regard to Mr T’s opinion in his first report, par 74 (set out above, towards the end of the paragraph) that he does not believe that X is at risk of sexual abuse or of being inappropriately dealt with by the father. However, although I have already made reference to Mr T’s opinion earlier in that paragraph of there not being particular or compelling evidence that X has been sexually abused or interfered with by the father (which accords with my own view of the evidence) I am unable to accept Mr T’s opinion that X is not at risk of sexual abuse by the father, because Mr T’s opinion was based principally upon his interviews with X and the father, and he has not had the benefit of hearing all of the evidence at the trial, discussed already in detail by me above, constituting the “components” which have led to my conclusion that X and/or Y are at risk of sexual abuse by the father.
I have carefully considered also the circumstance that A, N and P, in respect of which there are the findings which I have made concerning A and P, and the conviction concerning N, are the father’s nieces and nephew, and that X and Y are his own children; and that the matters concerning A and N concerned young females, whereas X and Y are young males. I am mindful, in this regard, of the opinions of Dr V concerning the father, expressed in his first and second reports under the headings Diagnostic Issues (Provisional) and Conclusions which I would incorporate by reference, without setting out, but note that his opinions, appropriately, are heavily qualified according to findings which the Court may make; and mindful also of Dr V’s evidence to the effect that a risk of sexual abuse involving teenage girls does not necessarily involve risk of sexual abuse of young boys. However, Mr C said in his oral evidence, I would emphasise, in the context of general observation, and not specific opinion concerning the father, that “cross-over”, that is, where a man sexually offends against females and then turns to sexually offend against males “usually occurs where we have men with a wide range of sexual and non-sexual criminal activity where they have high levels of sexual deviance”, giving the examples of procurism, bestiality, voyeurism and exhibitionism and said that this is usually depicted in men who have “high sexual deviancy”. Mr C said however, which again, I would emphasise, that in relation to any potential “cross-over” by the father there would need to be “more thorough forensic assessment”.
I have had careful regard to the practical assistance given in the matter in relation to risk by the expert opinions of and observations by each of Mr T, Dr V and Mr C. However, none dissuades me from the conclusion that a risk of sexual abuse by the father of X and/or Y exists and that it is a significant risk. Plainly, whilst the evidence of the experts has been of assistance in the matter, none has had the opportunity to hear and assess all of the evidence.
As to whether the identified significant risk is an unacceptable risk, that is, whether the risk of harm outweighs the possible benefit to the children of spending time with the father, it is necessary to consider Mr T’s opinion, to which I have referred, shared by Dr V, that it would be “very detrimental” to the children for the relationship between them and the father to be ceased. Plainly, thus, based on the evidence of Mr T and Dr V, both of whom are very experienced experts in child matters, there is benefit to the children in spending time with the father and in not having their relationship with him cease.
Counsel for the independent children’s lawyer urged that, on the evidence, the balancing exercise of whether the risk of harm outweighs possible benefit to the children from spending time with the father leads to the conclusion that there is unacceptable risk if the children’s time with the father is unsupervised but not if the children’s time with the father is supervised.
Counsel for the mother opposed that the children should spend any time with the father, on the basis that the balancing exercise dictates that result.
Counsel for the father urged that the balancing exercise should result in a determination that there is no unacceptable risk of harm to the children if there be a shared care living arrangement or unsupervised time with the father, but that if such not be accepted, there is no basis to determine that there is unacceptable risk in the children spending supervised time with the father.
The balancing exercise, as often has been said, requires careful weighing of the advantages to children of spending time with a parent against the disadvantages of doing so. However, if the Court concludes that children are in need of protection from harm, it must balance also the degree of harm and the degree of protection thus required.
I have identified the risk of sexual abuse by the father of X and/or Y as significant. Thus, the children require protection proportionate to that risk. However, I also accept Mr T’s and Dr V’s evidence that it would be very detrimental to the children for their relationship with the father to cease, such that, plainly, there is possible benefit to the children from spending time with the father. In these circumstances, in the balancing exercise, I conclude, as urged by Counsel for the independent children’s lawyer, that there is unacceptable risk of sexual abuse by the father of the children if they should spend unsupervised time with him but not if they should spend supervised time with him.
Realistically, apart from Ms B’s evidence on this point, the case is one in which I would not hesitate to draw the necessary inference as to adverse impact on the children’s best interests if I should find that the mother would “not cope” with the children spending supervised time with the father.
Thus, it is necessary to examine very closely the body of expert evidence as to whether, if the children should spend even supervised time with the father, the mother is likely to cope or not cope.
Ms B, after listening to the mother’s oral evidence, and having already prepared her report, to which I have referred, said that she had formed the view while listening to the mother’s oral evidence that the mother is a traumatised woman and in fact exhibiting symptoms of Post Traumatic Stress Disorder. She said that whilst the mother is managing to do what she needs to do for the children, this was achieved with great difficulty, that the mother was looking for an “end point”, and that whilst she had coped to date, if there were an order for indefinite supervision the mother would “adapt but not cope”. She spoke of the possibility of the mother having a breakdown, and that whilst presently she is able to function the effect on her in the long term of the children spending time with the father would be long term emotional detriment to the mother which ultimately would harm the children because their emotional needs would not be met.
Ms B was of the view that continued therapy for the mother would not assist her, or even longer term psychotherapy, because that would encourage the mother to “adapt” to a situation which she believed was dangerous for the children.
Dr V, consultant psychiatrist, called by the independent children’s lawyer, recorded in his first report, 30 August 2006, that the mother said she would “not accept” if the Court made orders for contact with the father, and said of the children “I don’t want them near him”. On mental state examination, Dr V said there was no evidence of any depression or anxiety in the mother, but there was a “curious lack of affect when discussing the alleged sexual abuse of her son”, noting that the mother was “firmly convinced that there had been sexual abuse of her son” by the father. He said there was no evidence of psychosis in the mother, however, that she presented as having “significant obsessional traits in her personality”, but not to the extent of constituting any “disorder”. He observed that it is not difficult to understand why the mother has developed a very negative mindset about the father’s sexuality. In his second report, 24 December 2008, Dr V recorded the mother as saying that the last 2½ years had been a “nightmare” and “I don’t know if I can see it through”, as well as “If I could run away I would”. On mental state examination for the purpose of that report, Dr V said that the mother continues to “believe firmly” that the father sexually molested her son and that he “constitutes an ongoing danger to her two children”. He said that the mother has a “deep abiding wound”, and that failure to heal it may indicate “vulnerabilities of personality” and that the hurt has led to “an extremely negative attitude towards her ex-husband which, if unaddressed, will likely to be a source of ongoing unhappiness with potential to significantly impact on her relationship with her children over the long term”.
Dr V said that the only diagnosis he would make of the mother “at the present time” is that of Adjustment Disorder with some intermittent depressed mood. He said the mother would benefit from psychotherapy “but it needs to be on a more consistent basis rather than on an as needs basis”. Dr V’s conclusion was that he did not believe that there were any psychiatric issues that would impact upon the mother’s capacity to be an effective mother if the children were to have substantial contact with the father on the unsupervised basis, if the Court were to find that this was in the best interests of the children.
In his oral evidence, Dr V said, as to this, that whilst the mother would be distressed, she has psychological strengths to be able to deal with such a situation and to do her best to minimise any negative impacts on the children arising from her own feelings. If, as I have understood Dr V’s evidence, these observations related to the children spending time with the father on the unsupervised basis, then plainly his opinion applies more strongly to any circumstance of the children spending time with the father on the supervised basis.
As to Ms B’s view that the mother was exhibiting symptoms of Post Traumatic Stress Disorder, Dr V said that the mother did not fulfil the criteria for a diagnosis of Post Traumatic Stress Disorder because she has not been exposed to an “horrendous event” (for example, seeing the child with a bloodied anus, or witnessing a rape). However, relevantly, Ms B did not diagnose Post Traumatic Stress Disorder in the mother, but rather said that she was “exhibiting symptoms” of that disorder, meaning, I think, showing similar symptoms.
Dr V further said that the Adjustment Disorder that he diagnosed in the mother is a “relevantly trivial disorder”, treatable by regular therapy, adding “If she were my patient I would say come and see me once per week for at least six months”, as a basic. Dr V further said that in his view, having examined the mother, she was unlikely to “break down”, because she has an “intact personality”, adding that, in the “supervised setting” she would be even less likely to “break down”, noting also that she is “not alone in the world, she has a very supportive family”.
In summation, Dr V said that in the “supervised setting” the mother’s chances of having a psychological breakdown are low. He said “She is likely to be stressed, angry” but that such is not likely to impair her parenting capacity.
Later in his evidence, Dr V said that the mother “is a sound person” and as such “They can crumble at the knees transiently” but in the mother’s case, if she were likely to have a breakdown “It would have happened by now”.
Mr T, psychologist, said in his oral evidence that the mother’s capacity to parent the children has been “stretched and stretched” but that the children are very important to her and she “finds ways” to create stability for them and support them. Mr T conceded, however, that it is possible he may have underestimated the impact on the mother of the series of events which have confronted her, and overestimated her capacity to cope in the future.
Ms Hogan of Counsel, for the mother, urged strongly that it is not a requirement for the mother’s R and C case to succeed that there be evidence that she is psychiatrically ill. I accept this submission. Ms Hogan put that Ms B’s evidence should be favoured over Dr V’s evidence, and provided a very comprehensive written submission (pars 27-44 of her written submissions, covering five pages) devoted to this aspect of the matter. Carefully, Ms Hogan drew together the mother’s evidence as to the father’s manipulative nature and her firm belief that the children would be at risk of emotional harm if allowed to develop a relationship with the father. It is not necessary to set out all of Ms Hogan’s submissions. I have however considered them very carefully.
On all of the evidence, I find, and accept, that the mother genuinely holds the belief that the father has sexually abused X, and further genuinely holds the belief that any relationship between the children and the father will be of harm to the children because of the father’s manipulative nature and that he will “play with the minds of the children”.
I am unable to conclude however, on the weight of the evidence as a whole, including the mother’s evidence and that of Mr T, Ms B and Dr V, that the mother’s beliefs, or her present or likely future trauma and stress, will have a significant impact on her capacity to parent the children so as to impinge upon their best interests if I were to order that the children spend supervised time with the father. It is not, as was advanced in argument, a matter of “preferring” Ms B’s evidence over Dr V’s evidence, or vice versa, but rather of weighing the evidence as a whole, and I am satisfied, in that exercise, having regard to all of the evidence to which I have referred, including that of the mother and of Mr T, Ms B and Dr V that ultimately the mother will cope if there should be an order that the children spend supervised time with the father.
In the result, I am not able to accept the mother’s R and C case in relation to the children spending supervised time with the father and find against it.
The authorities as to long term supervision
The case invites the question whether a final order as to long term supervision of the children’s time with the father may be appropriate as being in their best interests.
The authorities as to long term supervision are clear in providing that whilst conceptually and in practical terms such may be undesirable, always the children’s best interests is the paramount consideration, such that in cases where the choice is between supervised time between a child and a parent, as opposed to there being no time, there are occasions on which, particularly if there is an established relationship between a child and a parent to be preserved, supervised time should be favoured, even if the order be for long term supervision: see, eg, Moose & Moose (2008) FLC 93-375 per Boland J at [118]-[119]. In that case, her Honour observed (at [120]) that the trial judge’s reasons omitted consideration of the family consultant’s oral evidence, the recommendations of the independent children’s lawyer and discussion of the practical long term effects on the children of an indefinite order for supervision at a contact centre. Whilst there is no evidence as to the practical long term effects on the children of an indefinite order for supervision at or arranged by a contact centre, I have mentioned already that in some cases where the choice is between supervised time and no time, but there is an established relationship to be preserved, on such occasions there is scope for supervised time, even if long term, to be favoured.
Discussion and conclusions
Parental responsibility
Despite the father’s conviction in relation to stalking N, and my findings concerning A and P, the father’s abuse of them does not fall into the definitional provisions in s 61DA(2) of the Act whereby the presumption does not apply, because N, A and P were not members of the father’s family. Thus, the presumption in s 61DA(1) applies that it is in the children’s best interests for their parents to have equal shared parental responsibility unless pursuant to s 64DA(4) I find it to be rebutted by evidence that satisfies me that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
I am satisfied on the evidence that the presumption is rebutted, not only because of the conviction concerning N, and the findings which I have made concerning A and P but also because, as mentioned earlier, the parties have not spoken to each other nor had any other form of communication, realistically, since October 2005, and I am satisfied on the mother’s evidence that she has limited if any capacity to have the sort of consultation with the father required by s 65DAC(3), which applies where under a parenting order two or more persons are to share parental responsibility for a child.
Counsel for the independent children’s lawyer proposed an order that the mother have sole parental responsibility for the children, but that she keep the father informed as to several specified matters. In my view, in all of the circumstances of the case, such an order is in the children’s best interests. In particular, even though I have rejected the mother’s R and C argument, as it relates to supervised time, it is plain on the evidence to which I have referred for the purpose of that analysis that the mother, at least at this stage, would not cope with being required to consult with the father in relation to the children. I am conscious that the order I will make in this regard will be a final order. However, if the mother’s fragility should improve in the future, this aspect of the matter may be able to be revisited.
Equal time/substantial and significant time
The rebuttal of the presumption that it is in the children’s best interests for the parties to have equal shared parental responsibility for them has the effect that I am not compelled by statute to consider whether an equal time order is in the children’s best interests and reasonably practicable nor whether a substantial and significant time order is in the children’s best interests and reasonably practicable. However, although not compelled, and despite the issues in the case, I have considered these matters, in particular in the context of the father’s application that there be final orders for a shared care living arrangement for the children amounting, progressively, to substantial and significant time.
The children’s best interests for their living arrangements, spending time with each parent and other matters
It is significant that there is benefit to the children of having a meaningful relationship with both of their parents and, more relevantly, that the children have a strong bond and attachment with the father which, according to the expert evidence, in the children’s best interests should be maintained and allowed to develop throughout their childhood and adolescent lives.
It is significant also however, as I have determined, that there is an unacceptable risk of sexual abuse by the father of the children if they should spend unsupervised time with him but not if they spend supervised time with him.
This conclusion, self evidently, precludes any determination that the children’s best interests would be met by a shared care living arrangement by which the children would live with each of the mother and the father for specified periods, and precludes also any determination that their best interests would be met, presently, by spending unsupervised time with him.
Having regard to all of the statutory matters I am required to consider, including the principles and objects underlying the Act as it relates to children, the evidence, and the submissions of the parties and the independent children’s lawyer, I conclude that the children’s best interests will be met thus by orders that they live with the mother and spend supervised time with the father.
As to the frequency of that time and its venue, I have considered the draft orders proposed by Counsel for the independent children’s lawyer, and the input also in argument in relation to them by Counsel for each of the mother and the father. In short, I accept that the draft orders proposed by Counsel for the independent children’s lawyer, with the modifications made during argument, are a suitable regime of orders which in all of the circumstances are in the children’s best interests. In particular, the orders do not restrict that the children’s time with the father be spent only at contact centres, but allow for supervision to be arranged by the contact centres at other places. Further, the orders are predicated upon such other arrangements as the parties themselves may agree. Whilst on the one hand this may seem unlikely in light of the parties’ lack of communication and the mother’s evidence as set out in the transcript passage above, on the other hand, since mid 2007, by agreement, the parties have managed their own arrangements, generally according to the availability of contact centres and supervisors (above, par 12).
The draft orders proposed by Counsel for the independent children’s lawyer did not include that the children’s time with the father include Ms S, who is the father’s fiancée, but only the paternal grandparents and other members of the father’s extended family. I propose however to include her in the orders, on the basis that upon the marriage of the father and Ms S, she will become the children’s stepmother and thus part of the paternal extended family. Further, I would refer again to Mr T’s evidence that it is very important for X to have contact with members of the father’s extended family, and in particular the paternal grandparents (above, par 108). There is no evidence that any of the persons mentioned poses a risk to the children.
Conversely, there are some parts of the draft orders proposed by Counsel for the independent children’s lawyer which I will not make, namely those which provide that the father attend upon Mr C or other appropriately qualified practitioner recommended by him for therapy and assessment and undertake and complete any treatment recommended by Mr C or such other person and after at least six months of therapy and completion of such assessment obtain a report concerning the therapy and assessment. Whilst such therapy and assessment indeed would be sensible for the father, particularly with Mr C, who now is aware of the allegations and disclosures of which he was unaware at the time of his earlier assessment and report, in my view such therapy and assessment should be a voluntary matter for the father rather than coerced by a Court order. Thus, it will be a matter entirely for the father whether he chooses to seek such therapeutic intervention to facilitate, if possible, a report by Mr C in the future that the father is not likely to sexually abuse the children. In this vein, it must be recalled that Mr C said, which I accept, that in order to express an opinion on this matter, having regard to the allegations and disclosures unknown to Mr C at the time of his report, there would need to be “more thorough forensic assessment” in relation to the father.
I am mindful, as I have mentioned, of the undesirability of long term or indefinite supervision orders. I am mindful also of the principle in Rice v Asplund (1979) FLC 90-725 that once final parenting orders are made the Court ought not entertain fresh parenting proceedings unless there is some changed circumstance to justify that step and to consider afresh how the best interests of the children should be served, sometimes described as a significant change of circumstances. I would observe, in this context, that whilst the orders I propose to make will be final orders they will not be “indefinite” in the sense that, if in the future the father is able to present evidence by way, for example, of a fresh report from Mr C that following “more thorough forensic assessment” the father does not pose a risk or significant risk to the children of sexual abuse, so as to enable the Court to conclude that there is not an unacceptable risk of sexual abuse if the children spend unsupervised time with the father, it may be possible for the Court then to conclude that a shared care arrangement, or short of that at least unsupervised time with the father, would be in the children’s best interests.
Presently, however, that cannot be predicted, and will depend upon the nature and quality of evidence which in the future the father may be able to adduce on this subject matter for a judge to determine in the future whether there is or has been a significant change of circumstances sufficient to warrant fresh proceedings.
Otherwise, the ancillary orders proposed by Counsel for the independent children’s lawyer are sensible, and I am satisfied that each is in the children’s best interests.
If I should be held to have erred in my conclusion that there is an unacceptable risk of sexual abuse by the father of the children, and it be considered that the proper conclusion should be that there is no unacceptable risk of sexual abuse by the father of the children, the weight of the evidence as to the mother’s genuinely held belief that the father has sexually abused X and/or of psychological or emotional harm to the children by their spending unsupervised time with him (above, pars 142, 149 as to the mother being “firmly convinced” that the father has sexually abused X and 158), coupled with the evidence as to the mother’s capacity to cope (transcript extract above, last five paragraphs, and above, pars 143 as to Ms B’s par 5.2, and 147 last sentence, despite Dr V’s and Mr T’s evidence, above, pars 150-6, but having regard also to Ms Hogan’s careful submissions, above, par 157) and consequent impingement on the children’s best interests (above, pars 144-6, 147 last sentence and 148) then I would find the mother’s R and C case clearly established in relation to any potential order that the children spend unsupervised time with the father, such that the order would still be that the children spend only supervised time with the father.
Finally, the mother is encouraged carefully to consider Dr V’s opinion that her currently diagnosed Adjustment Disorder is treatable and that she would benefit by regular therapy with a psychiatrist “once per week for at least six months”, and that it would be insufficient for her to seek help only on an “as needs” basis. The mother has the children’s best interests at heart. It would be a pity if she were not able to heed Dr V’s careful advice to her, so that she may be able to become whole again, despite her traumatic experiences.
I will hear the parties further as to whether the orders should include that the father attend the children’s school or schools for events which parents usually attend, and as to whether there should be telephone communication between the father and the children. These matters were raised, but not developed to any great degree in argument.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Duty of Care
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Negligence
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Procedural Fairness
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Remedies
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