Fox & Nevin
[2021] FamCA 526
•20 July 2021
FAMILY COURT OF AUSTRALIA
Fox & Nevin [2021] FamCA 526
File number(s): CAC 1409 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 20 July 2021 Catchwords: FAMILY LAW – CHILDREN – Best interests consideration – Time and communication with the father – Primary consideration in determining children’s best interests includes protection from harm caused by abuse or violence – Where father was convicted of sexual abuse of the children – Finding of “unacceptable risk” of harm to the children – Order for mother to have sole parental responsibility – Children to have no communication or time with the father – Where relationship with father would not be “healthy, worthwhile and advantageous” for the children – Order made for personal protection of mother and children consistent with existing Family Violence Order – Change to children’s family name in children’s best interests.
FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – Where Affidavit of Attempted Service filed – Where parties and representatives have had no contact with the father upon his release from gaol – Finding that father has not engaged with proceedings.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3) 65DAA, 68B Cases cited: A v A (1998) FLC 92-800
B and B (1993) FLC 92-357
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
G & C [2006] FamCA 994
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Russell & Close [1993] FamCA 62
Stott & Holgar [2017] FamCAFC 152
The Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Number of paragraphs: 78 Date of hearing: 20 July 2021 Place: Sydney Solicitor for the Applicant: Ms Lloyd Independent Children's Lawyer: Ms Orcyzykowski The Respondent: No appearance ORDERS
CAC 1409 of 2020 BETWEEN: MS FOX
Applicant
AND: MR NEVIN
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
20 JULY 2021
THE COURT ORDERS THAT:
1.That the Applicant Mother have sole parental responsibility for the children, X (born … 2014), Y (born … 2015) and Z (born … 2017).
2.That the children live with the Applicant Mother.
3.That the children spend no time with the Respondent Father.
4.That the Applicant Mother may apply to change the children’s surnames to ‘Fox’, at her cost and the father shall do all things necessary to facilitate that application.
5.That pursuant to s 68B of the Family Law Act 1975, from the date of these orders, the Respondent Father is restrained from:
(a)Being on the premises where the Applicant Mother and children live;
(b)Being on the premises at B School, C Street, Suburb D, ACT, a place of education of the children;
(c)Being within 100 metres of the Applicant Mother or children except:
(i)at a Court or Tribunal proceeding; or
(ii)at a counselling or mediation session or restorative justice conference arranged with the Applicant Mother's consent.
(d)Locating, or attempting to locate, the Applicant Mother or the children;
(e)Contacting the Applicant Mother or the children except:
(i)through a legal practitioner;
(ii)at a Court or Tribunal proceeding, or to take a step in a Court or Tribunal proceeding; or
(iii)at a counselling or mediation session or restorative justice conference arranged with the Applicant Mother's consent.
(f)Engaging in behaviour that constitutes family violence towards the Applicant Mother or children;
(g)Causing someone else to locate or attempt to locate the Applicant Mother or children, except as permitted by this order;
(h)Causing someone else to contact the Applicant Mother or children, except as permitted by this order; or
(i)Causing someone else to do anything that is family violence in relation to the Applicant Mother or children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fox & Nevin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns an Application for Final Orders by Ms Fox (“the mother”), for parenting orders in respect to the children of her de facto relationship with the Respondent, Mr Nevin (“the father”), being X born in 2014, Y born in 2015, and Z born in 2017 (collectively, “the children”).
The children currently live with the mother, and have had no contact with the father since the parties separated on a final basis in October 2016. The mother seeks orders, inter alia, that she have sole parental responsibility in respect to the children, and that they live with her and spend no time nor communicate with the father.
PROCEEDING ON AN UNDEFENDED BASIS
For the following reasons, I am satisfied that the matter is to proceed on an undefended basis.
This matter was listed for call over on 18 June 2021 at which time there was no appearance for the father. As recorded in the notation to the orders made by the Court on 18 June 2021, “the Father has yet to file any documents in these proceedings save to the extent that on 13 July 2020, he signed an Acknowledgement of Service, of documents. Listed in the Acknowledgement of Service dated 13 July 2020 which included a copy of the mother’s Initiating Application.”
At the call over on 18 June 2021, the Court was informed that there had previously been communication between the father and the Independent Children’s Lawyer (“ICL”) while the father was in custody, and that the ICL had obtained from ACT Corrective Services, the mobile telephone number belonging to the father. Accordingly, on 18 June 2021 I made the following order:
2.Pursuant to rule 7.18 of the Family Law Rules 2004 (Cth), the Independent Children’s Lawyer is requested to take all reasonable steps within 48 hours to serve an electronic copy of these orders on the Respondent by way of forwarding the orders by text message to the mobile number: “…”.
On 18 June 2021, I further made an order that this matter be set down for hearing on an undefended commencing at 10 am on 20 July 2021. Since that time the Court has received no communication from the father and the court has been informed that no communication has been received from the father by the mother or her legal representatives or the ICL.
In recording the absence of communication form the husband I note that the ICL has filed an Affidavit of Attempted Service sealed on 19 July 2021, recording an unsuccessful attempt to personally serve the father at his last known residential address. That Affidavit states:
[The process server] was unable to serve Mr Nevin when I attended the said address on 22 June 2021 at 11.25am as I noted the property to be vacant.
Nonetheless, consistent with the implementation of the order for substituted service made on 18 June 2021, the ICL has provided to the Court screenshots of two SMS text messages, marked Exhibits A and B in the proceedings, sent to the phone number provided in the orders, notifying the father of the hearing before me today, and advising of steps to make contact with the ICL. The ICL informed the Court that those text messages were sent on Monday, 21 June 2021 at approximately 2.22 pm and the father did not respond to the text messages.
FACTS
In these proceedings the mother relies on her Affidavit filed on 3 July 2020. As this matter proceeded on an undefended basis the mother was not challenged on the veracity of the evidence set out in that Affidavit. The evidence set out is plausible and in the absence of it being challenged I accept the mother’s evidence as being accurate and truthful. Based on that evidence I make the following relevant factual findings.
The mother was born in 1988 and is currently 32 years old.
The father is the mother’s former partner Mr Nevin, who was born on in 1981 and is a week shy of turning 40 years old.
The parties began living together in February 2013 and their relationship ended in approximately October 2016.
The parties have three children together; X born in 2014 aged 7 years old, Y born in 2015 aged almost 6 years and Z born in 2017 aged 4 years old.
In the period subsequent to the parties’ separation they engaged in discussions regarding future parenting arrangements. They reached agreement that the children would continue to live with the mother and the beginning February 2017 the children would spend 6 hours on each Saturday with the father. That arrangement continued until approximately June 2017.
From approximately June 2017, the children spent overnight time each Saturday with their father with the mother transporting the children to the father’s residence and picking them up on the Sunday. That arrangement continued until February 2019.
In addition to spending the overnight time with their father, from February 2019 the children would also spend overnight time with their father on Friday night, and spend Monday and Tuesday afternoons with their father who would pick the children up from daycare at approximately 2.30 pm and also from school which finished at approximately 3 pm. The children would remain in the father’s care until approximately 7 pm at which time he would deliver the children back to the mother’s residence.
On Saturday 4 May 2019, the father sexually abused X and Y while the three children were in the father’s care at his home. The father handed himself in to police one week after the offence took place, after the allegations became known to the mother.
On 24 July 2019, the father pleaded guilty to two charges of committing an act of indecency upon a young person under the age of 10 years. The father was sentenced to a total period of 20 months of imprisonment in October 2019, with a non-parole period of 13 months.
Distressingly, that abuse occurred while the children were in the father’s care pursuant to the arrangements agreed to by the parties. The circumstances in which the abuse came to the mother’s attention are summarised in paragraphs 16 through to 39 of the mother’s Affidavit as follows:
16.In May 2019, I was informed by the children of incidents that took place on 4 May 2019 while X and Y were at Mr Nevin's home for the weekend.
17. On Sunday 5 May 2019 the children were returned to me after spending the weekend with Mr Nevin. I had dropped the children at school and day care on both Monday 6 May 2019 and Tuesday 7 May 2019. Mr Nevin had picked up the children from day care and school on both of those days before dropping them back at my house at 7:00pm.
18. When Mr Nevin arrived at my place on Tuesday 7 May 2020 to drop off the kids I recall that he walked in the front door and said to me words to the effect of "Y was saying that mum's boyfriend touched her vagina".
19. I tried to stay calm and I recall thinking to myself "what the hell, what is this all about?". I replied to Mr Nevin saying words to the effect of "no, that's not possible. I haven't left the kids alone and they have never left my side". At the time I also wasn't in any formal relationship with anyone, although did have male friends that I spent time with.
20. Mr Nevin continued to say words to the effect of, "well ... this is what Y is saying". I tried to reassure Mr Nevin and I recall saying to him words to the effect of "it's not from my side".
21. I recall that Mr Nevin then asked me about who baby-sits the children. He said to me words to the effect of, "whenever you need a babysitter please call me".
22. Mr Nevin left my home and at approximately 7:30pm. After he left, I recall questioning Y about the incident, saying words to the effect of: "has anyone touched you?". At that time Y responded to me saying "no ".
23. I then called my friend Mr K, the same friend that I assumed Mr Nevin had thought was my boyfriend. I told Mr K that Mr Nevin had accused him of touching Y. Mr K was shocked and surprised by this but remained calm with me on the phone. I remember that he said to me words to the effect of: "the kids were always with you Ms Fox, that's not possible."
24. The next day, Wednesday 8 May 2019, at approximately 8:30am I decided to talk to X about what Mr Nevin had said. At this stage I still didn't think that what Mr Nevin had said to me could possibly be true.
25. I recall that X was in my room playing on the iPad when I said to X words to the effect of, "has anyone touched you?". To my surprise he answered, "yes". I tried to stay calm, and I said to him words to the effect of, "where did they touch you?". X responded saying words to the effect of, ''on my doodle".
26. I remember feeling shocked and disbelieving but continued to ask X about this. I said to X words to the effect of, "who touched you on your doodle?". X responded saying words to the effect of, "daddy did, he grabbed it".
27. At this stage I'm still not sure that I believed that anything had happened, but I decided to then ask Y the same thing. Y was playing in the loungeroom at the time that I was speaking with X so I went into the lounge room to speak to Y and started talking to her.
28. I spoke with Y saying words to the effect of, "did anyone touch you?". Without hesitation Y said words to the effect of, "yes, daddy touched me". I further questioned Y saying words to the effect of, "where did he touch you? Where?". Y responded saying words to the effect of, "on my vagina".
29. I then said to Y words to the effect of, "how did he touch you?". Y answered, saying words to the effect of, "with his tongue".
30. I felt incredibly shocked and upset. I didn't know what to do. I decided to call my mother to ask her for advice. My mother advised me that I should call the M Women's Refuge.
31. When I called the M Women's Refuge I spoke to a woman named Ms N. Ms N said that I should call Child and Youth Protection Services ("CYPS"), the Domestic Violence Crisis Service ("DVCS") and the Australian Federal Police ("AFP').
32. I followed Ms N's instructions and called CYPS who then told me to call the AFP.
33. I called the AFP and they told me to come to the Suburb L station to talk.
34. I recall also calling DVCS but cannot remember exactly what I told them on the phone. I do remember someone from DVCS contacting me on several occasions to follow up on how I was doing and Mr Nevin's criminal case. The last time that I spoke to someone from DVCS was just before Mr Nevin's sentencing date as someone had asked me if l had heard from him. Since the sentencing date, I have not had any contact with someone from DVCS.
35. I then went to the Suburb L Police Station and met with a counsellor and a police officer called Mr E. I do not recall the counsellor's name. I was interviewed by the police and then X was interviewed.
36. I was not allowed to be present while the police interviewed X. After speaking with X for about 10 minutes, the officers came back out of the interview room with him. I recall that Mr E said to me words to the effect of, "X didn't make any disclosures to us".
37. After the interview at the police station, at the request of the police, I took the children to the Child's Nurse at the hospital to have each of them examined. The nurse advised me to not say anything to the children about what they had said to me about Mr Nevin having touched them inappropriately.
38. Later that week, on Friday 10 May 2019, before the children were due to go back into Mr Nevin's care I decided to send Mr Nevin a text message to let him know that I wouldn't be allowing him to spend time with the kids. I sent Mr Nevin a text message that said: "due to what Y has said the kids will stay with me until this is investigated further. We will discuss on Monday".
39. The following day, Saturday, 11 May 2019, Mr Nevin turned himself in to the police when the police arrested him.
(as per the original)
On 23 July 2019, the father pleaded guilty in the ACT Magistrates Court to two charges of committing an act of indecency upon a young person under the age of 10 years. The reasons for judgment handed down by the Court are marked Annexure A to the mother’s Affidavit and relevantly includes the following:
5. On 4 May 2019 the offender had the two children at his home for weekend access. The offender usually wears no clothes while he is at home. During the morning X touched the offender's penis which commenced to become erect. The offender told his son to "cut it out". He began to leave the room but while doing so he touched X's penis. It seems that the offender imposed upon his children the requirement to wander about the house naked.
6. Sometime later X sat on the offender's leg and began to rub the offender's penis, which again became aroused and pressed against the child's intergluteal cleft for about a minute. He realised the conduct was inappropriate and moved the child away.
7. On the same day Y was sitting on a couch alongside the offender. She was wearing a nightgown but no underwear. She began to touch the area around her vagina. According to the Agreed Statement of Facts the offender, apparently not considering that she was only three years of age, developed the totally deviant thought that the child needed to be aroused. However, I note the offender denies this element in the pre-sentence report, so I will not use it as a factor in assessing the severity of the offences.
8. He used his right finger to rub the child's clitoris. He then removed his finger from her vagina and licked it in order to achieve some lubrication. He saw the child smile and thought she was having an orgasm. He removed his finger.
The children have spent no time with the father since the father’s offences against X and Y in May 2019.
The father’s sentence expired on 10 January 2021, and he is now out of prison. The father has made no further contact with the mother or the ICL since his release from prison. Until at least September 2021, there remains a Family Violence Order in place dated 11 September 2019, that amongst other matters provides, the father is prohibited from being within 100 metres of the mother and the children; their home; the children’s daycare and school; and prohibited from contacting the mother and the children.
APPLICATIONS
The mother seeks that orders be made in accordance with her Initiating Application filed 3 July 2020 and sealed 9 July 2020, as follows:
1.That the Applicant mother have sole parental responsibility for children X (born … 2014) “X”, Y (born … 2015) “Y” and Z (born … 2017) “Z”.
2.That children live with the Applicant mother.
3.That the children spend no time with the respondent father.
4.That the mother may apply to change the children’s surnames to ‘Fox’, at her cost and the father shall do all things necessary to facilitate that application.
5.That pursuant to s 68B of the Family Law Act 1975, from the date of these orders until 8 June 2031, the Respondent father is restrained from:
i.Being on the premises where the Respondent mother and children live;
ii.Being on the premises at B School, C Street, Suburb D, ACT where the Respondent mother and the children are likely to be;
iii.Being within 100 metres of the mother or children except:
1.at a Court or Tribunal proceeding; or
2.at a counselling or mediation session or restorative justice conference arranged with the mother’s consent.
iv.Locating, or attempting to locate, the mother or the children;
v.Contacting the mother or the children except:
1.through a legal practitioner;
2.at a Court or Tribunal proceeding, or to take a step in a Court or Tribunal proceeding; or
3.at a counselling or mediation session or restorative justice conference arranged with the mother’s consent.
v.Engaging in behaviour that constitutes family violence towards the mother or children;
vi.Causing someone else to locate or attempt to locate the mother or children, except as permitted by this order;
vi.Causing someone else to contact the mother or children, except as permitted by this order; or
ix.Causing someone else to do anything that is family violence in relation to the mother or children.
(as per the original)
EVIDENCE
The mother relies on the following documents:
(a)Initiating Application filed 3 July 2020
(b)Affidavit filed on 3 July 2020 together with annexures
(c)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 9 July 2020, and
(d)Acknowledgement of Service sealed 15 July 2020.
The ICL relies on the following documents:
(a)Affidavit of Attempted Service filed 19 July 2021; and
(b)Screenshots of two SMS text messages sent by the ICL to the father (Exhibits A and B).
THE LAW – CONCEPTS AND PRINCIPLES
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Abuse is defined in s 4 of the Act in the following terms:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; …
Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
An order for equal shared parental responsibility will not be made in this matter. This is because of my findings in respect to the serious acts of abuse that the father has committed against the children together with my findings in respect to the father perpetrating family violence against the mother which I detail below.
As an order for equal shared parental responsibility will not be made the Court is not required to consider whether an order should be made for the children to spend equal time or substantial and significant time with both parents.
For reasons which I set out below I am satisfied that the mother should have sole parental responsibility and that the children should spend no time with the father and have no communication with him.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65DAA of the Act.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(emphasis added)
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].
·The components which lead to a conclusion that an unacceptable risk exists 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: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
For reasons which I set out below I have determined that there is an unacceptable risk in the children spending time with or communicating with the father.
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(g)Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
While relevant to my consideration of this matter, the matters set out in s60CC(3) are very much secondary to the main issue in these proceedings which is the issue of unacceptable risk.
DETERMINATION
Meaningful relationship
As a result of the family violence perpetrated by the father against the mother together with the nature of the father’s abuse of the children I have determined that an order for equal shared parental responsibility should not be made and, accordingly, as a result of the serious acts of abuse committed by the father against the children I am not satisfied that it is in the children’s best interests to have a meaningful relationship with the father. Specifically I am not satisfied that such a relationship would be “healthy, worthwhile and advantageous” to the children.
This finding is, in itself, enough for me to determine the application and to make orders in the terms of those sought by the mother. In the circumstances where the mother, however, seeks additional orders, I will consider those matters set out in ss 60CC(2)(c) and 60CC(3).
Risk of harm
The serious acts of sexual abuse perpetrated by the father against his own children occurred in circumstances where they were in his sole care as result of an agreement reached between the father and the mother to enable the children to spend time with the father. The father’s conduct in committing the serious crime represented a fundamental breach of trust towards the children and also towards the mother who had, in good faith, reached an agreement regarding parenting arrangements with the father.
In circumstances where the father has been the perpetrator of such serious abuse there is, in my view, an unacceptable risk that the father will engage in further conduct of that nature in the future. This is particularly so in circumstances where, as the mother’s solicitor points out, the Court is without any information as to any programs or rehabilitation the father has or has not undergone.
In determining that such an unacceptable risk exists, I have taken into consideration the serious physical and psychological harm that would occur to the children if those acts were repeated.
Having found that such unacceptable risk exists, for reasons which I have set out above, I am required to consider whether that risk can be mitigated by appropriate safeguards.
The mother attests that after discovering the incidents that took place on 4 May 2019, the mother sought advice from police and others and acting on that advice, the mother prevented the children from spending further time with their father.
In my view, the abuse perpetrated by the father against the children was of such significance that the risk to the children cannot be mitigated by orders providing for the children’s time with the father to be supervised. In making that finding I accept that supervision by an appropriate supervisor may prevent further acts of physical abuse however, such supervision would not, in my view, be adequate to protect the children from psychological harm that would arise from the children being compelled to spend time with the man who committed acts of indecency upon them in circumstances where they were entitled to assume that their father would protect and nurture them.
Accordingly, for these reasons, the orders I make are for the children to have no time with the father and to have no communication with him.
Additional considerations
Issues relating to the children – their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h)
In terms of the views of the children the mother stated at paragraph 62 through to 64 of her Affidavit:
62.Since Mr Nevin has been in prison, the children have occasionally asked about their father. X has said to me words to the effect of, "Daddy has been gone for a while. Is daddy in goal?". I have decided that it is best if I am upfront and open with the kids about their father and what has occurred. However, I do not raise this with them, unless they raise it with me first.
63. When X asked me about his dad as set out above, I said to him words to the effect of, "Yes bub, he is, because of what he did to you."
64. The children have not asked me to see their dad.
(Emphasis in the original)
The mother attests to the children seeing their maternal grandmother on a weekly basis with the mother arranging with her own mother to spend time with the mother and the children. The mother further attests to the children seeing their maternal grandfather and their maternal aunt and uncle approximately every six months.
In terms of other issues which are relevant to these considerations the mother acknowledged that the children have a close relationship with their paternal grandparents being their step-grandmother and grandfather. To her credit the mother has facilitated the children having an ongoing relationship with their paternal grandparents which the mother describes at paragraph 42 through to paragraph 44 of her Affidavit as follows:
42. The children spend time with their paternal grandparents (step-grandmother and grandfather) on a fortnightly basis.
43. There is no formal arrangement; instead, the paternal grandparents will contact me to arrange a time for them to see the children. There are instances where the children and I have dinner at the paternal grandparents' place of residence.
44. The children play with the toys they have at their paternal grandparents' place of residence they also sometimes go to the park.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i)
The mother’s unchallenged evidence in respect to her own care of the children is set out at paragraph 56 through to paragraph 66 of her Affidavit as follows:
56. I am, and have been, the primary caregiver to each of the children, both during the relationship and following separation.
57. I haven't worked regular hours since my eldest child X was born and I have attended to the fulltime care, nurture and development of my children.
58. When the children were infants, I breastfed them, changed their nappies, bathed them, woke to them at night and was attentive to their needs.
59.After discovering the incidents that took place on 4 May 2019 and seeking advice from police and others, I took all reasonable steps to prevent the children from further physical or psychological harm, including preventing them from spending further time with their father.
60.Since the incidents of 4 May 2019, the father has not participated in making decisions about major long-term issues for the children. He has also not sought to spend any time with the children, nor communicate with them. I would not agree to him speaking with them or seeing them in any case.
61. In my view it is dangerous for the children to spend time alone with their dad.
62. Since Mr Nevin has been in prison, the children have occasionally asked about their father. X has said to me words to the effect of, "Daddy has been gone for a while. Is daddy in goal? ". I have decided that it is best if I am upfront and open with the kids about their father and what has occurred. However, I do not raise this with them, unless they raise it with me first.
63. When X asked me about his dad as set out above, I said to him words to the effect of, "Yes bub, he is, because of what he did to you."
64. The children have not asked me to see their dad.
65. The children see my mother, their maternal grandmother on a weekly basis. I arrange a time with my mother for her to spend time with me and the children.
66. The children see my father, sister and brother approximately every 6 months.
(emphasis per the original)
I respectfully agree with the submission by the ICL and the mother, that the mother has been exemplary in attending to the needs of the children including their health, education, support, transport and supervision and has provided a very high functioning level of care for the children.
The mother attests that prior to the parties’ separation she was the parent primarily responsible for caring for the children with the father rarely assisting in tasks such as bathing the children. The wife attests, however, that the father regularly participated in recreational or what she described as “fun activities” with the children such as going to the park.
The mother acknowledges that prior to the father’s sexual abuse of the children in May 2019, he had a meaningful relationship with the children “and was active in their life” including taking the children to the bike track adjacent to the lake and supervising the children riding their bikes and scooters. The father would also take the children for swimming. The mother also acknowledges that the father would ensure that the children were fed however he was disinclined to assist them with their homework.
At paragraph 60 of her Affidavit the mother attests that “[since] the incidents of 4 May 2019, the father has not participated in making decisions about major long-term issues for the children. He has also not sought to spend any time with the children, nor communicate with them.”
Issues of family violence:
At paragraph 4 of her Affidavit the mother attests that in about February 2014 the father began to engage in conduct that constituted family violence pursuant to the definition in s 4AB of the Act. This included yelling at her and engaging in financially controlling behaviour.
Most relevantly, however, the father’s abuse of the children constituted a serious act of family violence and child abuse.
On 19 August 2019, a Registrar of the ACT Magistrates Court made a Special Interim Family Violence Order which provided that the husband is prohibited from:
(a)being on the premises at F Street, Suburb D, ACT where the protected person(s) live(s);
(b)being on the premises at G Childcare Centre, H Street, Suburb J, ACT where the protected person(s) are likely to be;
(c)being in the following particular places, that is B School, C Street, Suburb D, ACT;
(d) being within 100 metres of the protected person(s);
(i) except at a Court or Tribunal proceeding;
(ii)except at a counselling or mediation session or restorative justice conference arranged with the protected person's consent;
(iii)except in accordance with an order or parenting plan made under the Family Law Act 1975;
(e) locating, or attempting to locate, the protected person(s);
(f) contacting the protected person(s);
(i) except through a legal practitioner;
(ii)except at a Court or Tribunal proceeding, or to take a step in a Court or Tribunal proceeding;
The ‘protected person’ named in the order being the mother and the three children.
On 11 September 2019, a final Family Violence Order was made in similar terms to the Special Interim Family Violence Order. That Final Order remains in place for a period of 24 months from 11 September 2019 and, will therefore expire in September of this year.
To avoid the necessity for the mother to make further applications to the ACT Magistrates Court, which would involve the mother essentially reliving the traumatic events experienced by herself and the children, it is appropriate that a final order be made in this Court which mirrors those previously made by the ACT Magistrates Court, save in so far as it will remove reference to a child care centre that the children no longer attend.
Effect of change: s 60CC(3)(d)
The children have not spent any time with their father since 4 May 2019. Commencing to now spend time with the father would represent a significant change for them and there is no evidence that such a change would be of benefit to them. To the contrary, I am satisfied that orders requiring the children to spend time and or communicate with the father would place the children at risk of both physical and psychological harm. I am also satisfied that even in the event of the children’s time being supervised that the children would be exposed to psychological harm.
Practical difficulty of implementation: s 60CC(3)(e)
There are no practical difficulties resulting from the orders that I make in these proceedings for the children to spend no time with the father, in circumstances where the father has not sought to spend time with them, and they are not spending time with the father.
Avoiding further proceedings: s 60CC(3)(l)
It is hoped that the orders made in these proceedings will finalise parenting arrangements in respect of the children so that the mother and the children can move on with their lives and hopefully overcome a very traumatic and distressing period for them.
Other relevant matters: s 60CC(3)(m)
There are no other relevant matters to consider.
The Children’s family name
The mother has also sought an order permitting her to change the family name of the children. This is in circumstances where the mother is providing a very stable home for the children to live in, where they have had no involvement with the father since May 2019 and, relevantly, in circumstances where the father’s conviction and sentencing is recorded.
In that decision, as would be expected, the details of the children are recorded. That published judgment would remain available in the future for enquiry, not only by the children, but by others. In those circumstances I am satisfied that it is desirable and in the children’s best interests that the children’s family name be changed from that of the father, to the mother’s name, so that in the future there is no linkage between the children’s identity and the decision regarding the father’s sexual abuse of two of the children.
CONCLUSION
For all of these reasons I make the orders above as sought by the mother in her Initiating Application.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 2 August 2021
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