Gainer & Millen
[2023] FedCFamC2F 1305
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gainer & Millen [2023] FedCFamC2F 1305
File number(s): PAC 964 of 2020 Judgment of: JUDGE STREET Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – PARENTING- progression from supervised time- no unacceptable risk Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)Cases cited: A v A (1998) FLC 92-800
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092
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
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52Stott & Holgar [2017] FamCAFC 152
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 13 & 14 July 2023 Place: Sydney Applicant: Appeared in person Counsel for the Respondent: Mr P Friedlander Solicitor for the Respondent: Sharah & Associates, Solicitors and Conveyancers Counsel for the Independent Children’s Lawyer: Ms M Yu Solicitor for the Independent Children’s Lawyer: Sarah Bevan Family Lawyers ORDERS
PAC 964 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAINER
Applicant
AND: MS MILLEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
14 JULY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental Responsibility
2.The Mother shall have sole parental responsibility for the children X (born in 2013) and Y (born in 2017) (‘the Children’) provided that she notifies the Father of any long-term decisions that are made with respect to the Children within 48 hours of any such decision being made.
3.The parents are to use the OurFamilyWizard parenting app for any communication regarding the Children and the parties are each to acquire that app within 48 hours.
4.In the event that either child suffers an illness or medical emergency that requires immediate medical attention whilst in either parent’s care, that parent will as soon as practicable:
(a)Advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis;
(b)Advise the other parenting of the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment.
(c)Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the other parent’s contact telephone number and email address to facilitate the same.
Live with
5.The children shall live with the mother.
Time with
6.For a period of no less than six (6) months from the making of these orders, the Children are to spend supervised time with the Father on a Sunday on each month for three (3) hours each time in the Sydney metropolitan area, with such time to be supervised by B Contact Centre or another available supervising service in the Region C area, at the Father’s cost.
7.For the purposes of Order 6 both parents must:
(a)Contact the supervising service within seven (7) days to arrange an appointment for assessment for suitability;
(b)Attend the assessment;
(c)Comply with any appointment made by the supervising service;
(d)Comply with all reasonable rules of the supervising service; and
(e)Comply with all reasonable requests or directions of the staff of the supervising service.
8.Following the conclusion of Order 6, unless otherwise agreed between the parents in writing, the Children shall, subject to Order 9, spend unsupervised time with the Father on the third Sunday of every month in the Sydney metropolitan area as follows:
(a)For a period of three (3) months – from 10:00am to 2:00pm;
(b)At the conclusion of compliance by the Father with Order 8(a), the first half of every school holidays in even years and the second half of every school holidays in odd years.
9.The Father’s time in accordance with Order 8 is not to commence until:
(a)The Father has completed the Circle of Security parenting program and provided a certificate of completion to the Mother; and
(b)There have been a minimum of six (6) supervised visits undertaken between the Father and the Children in accordance with Order 6.
Changeover
10.For the purpose of Order 8, unless otherwise agreed between the parents in writing, changeover is to occur at the McDonalds in Suburb E (D Street, Suburb E) with the Father collecting and returning the Children.
Video Communication
11.Unless otherwise agreed between the parties in writing, the Children shall have video call or other FaceTime digital communication with the Father each Tuesday 5:30-6:00pm, Thursday 5:30-6:00pm and Sunday 10:00am-10:30am, unless attending a supervised visit with the Father.
Special Occasions
12.Unless otherwise agreed between the parties in writing, if they are not otherwise spending time with the Father, the children shall have video call or other digital communication with the Father between 10:00am and 10:30am on the following special occasions:
(a)Each child’s birthday;
(b)Father’s Day;
(c)Christmas Day; and
(d)Easter Sunday.
13.For the purpose of Orders 11 and 12 the communication shall be initiated by the Father through OurFamilyWizard to identify the video call or other FaceTime communication which the Mother is to facilitate and the Mother is not to monitor, record or interfere with those communications.
Support for Mother
14.The Mother is to attend and complete a parenting after separation course and/or otherwise attend upon a psychologist on at least three (3) occasions for support in co-parenting within the next six (6) months.
School Reports
15.The Father has authority to engage and obtain information, as would normally be available to a parent, from any professional, body or organisation that holds information about the Children including but not limited to treating professionals, doctors, specialists, hospitals, schools and sporting associations, at the Father’s own cost.
16.After the period of supervision is completed and requirements in Order 9, the Father may attend all school and sporting events provided that he gives the Mother 24 hours advance notice of the same in writing.
17.The Mother provide an address or PO Box to which the Father may send gifts and cards to the Children within seven (7) days, and within a further seven (7) days of any change.
Mother to have Communication with Children whilst in the Father’s care
18.When the Children are in the Father’s care the Children are to be permitted to contact the Mother by video call, FaceTime or other digital communication in accordance with their wishes and the Father is to ensure that occurs.
Restraints
19.Pursuant to s 68B of the Family Law Act 1975 (Cth), each parent is restrained from:
(a)physically disciplining the Children;
(b)denigrating the other parent, members of the other parent’s family or household in the presence or hearing of the Children and shall remove the children from the presence or hearing of any third party who does so;
(c)discussing these proceedings within the presence or hearing of the Children, and each parent shall use their best endeavours to ensure that no third party discusses these proceedings within the presence or hearing of the Children;
(d)consuming alcohol to excess or illicit substances within 24 hours of coming into contact with the Children; and
(e)from attending upon the other parent’s home or workplace.
20.The Court reserves its written reasons.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These are parenting proceedings under Part VII in relation to two children, X, born in 2013, and Y, born in 2017. The proceedings had earlier been fixed for a final hearing in September of 2022. On 12 September 2022, the final hearing date was vacated and the matter was listed for a directions hearing on 18 October 2022. On 18 October 2022, the Court fixed the matter for a final hearing on 8 and 9 February 2023, and made an order under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) that neither party being permitted to cross-examine the other. The hearing fixed for 8 and 9 February 2023 had to be vacated due to COVID by the Court and on 13 February 2023, the matter was refixed for a final hearing commencing on 13 July and to continue on 14 July.
At the commencement of the hearing on 13 July 2023, the applicant father was unrepresented. The applicant father identified that he did not oppose the respondent mother having sole parental responsibility, subject to appropriate orders to notify him of any long-term decisions or any significant incidents, illnesses or injuries effecting the children. The applicant father accepted that the children should live with the mother and identified a desire to spend time with the children progressing from supervised time to unsupervised time, and if possible, half the school holidays and special occasions.
The respondent mother materially changed her position from that identified in the family report as to the father spending time with the children to develop a meaning relationship. At the time of preparing the family report by Ms F, dated 13 July 2021, Ms F interviewed the mother on 23 April 2021, as well as having a telephone call on 12 July 2021. The respondent mother now asks the Court to make a no time order. The ICL identified at the commencement of the hearing a desire to ascertain what findings might be made before determining what should happen in respect of significant and meaningful time, or the position taken by the respondent mother.
The applicant, at the commencement at the hearing, first in open court and then in evidence, explained that he had not been able to attend the supervised time since June of 2022, and that his difficulty in attending was due to financial circumstances and having relocated to Region G where he has found employment. The applicant identified that he was having telephone contact twice a week with the children, consistent with orders made by the Court on 2 September 2020. Which relevantly in order 4, entitled the father to video communication with the two children from 4.30 to 5 pm each Tuesday and Thursday or by agreement to some other time. The applicant mother unilaterally and without any Court order, ceased that video time by the children with the father.
DOCUMENTS ADMITTED INTO EVIDENCE
The following affidavits were treated as read:
(1)Affidavit of Mr Gainer dated 10 February 2020;
(2)Affidavit of Mr Gainer dated 24 August 2020;
(3)Affidavit of Mr Gainer dated 21 June 2021;
(4)Affidavit of Ms Millen dated 6 May 2020;
(5)Affidavit of Ms Millen dated 11 August 2022;
(6)Affidavit of Ms Millen dated 12 July 2023.
The following documents were tendered into evidence:
(1)Exhibit A: Family Report prepared by Ms F dated 13 July 2021;
(2)Exhibit B: Pre-employment Urinalysis Report of the Applicant father dated mid-2023;
(3)Exhibit C: Certificate of Parenting After Separation Course completed by the Applicant Father dated 19 April 2022;
(4)Exhibit D: ICL Minute of Order dated 14 July 2023;
(5)Exhibit E: Applicant Father’s Minute of Order dated 14 July 2023;
(6)Exhibit F: ICL Updated Minute of Order dated 14 July 2023.
CHRONOLOGY
Date Event 1981 Applicant father is born 1995 Respondent mother is born 2010 The parties meet 2010 Respondent mother says the parties commenced cohabitation 2012 Applicant father says the parties commenced cohabitation 2013 X is born 2017 Ms Millen is born Late 2019 Applicant father travels to Country H Late 2019 Respondent mother leaves home with the children while the applicant father is overseas in Country H Late 2019 Applicant father returns to Australia Late 2019 Applicant father says he finds note form the respondent mother saying that the relationship was over and a gift from the children Late 2019 Applicant father served with ADVO by Suburb J Police Station 22 September 2020 Interim Orders made by consent for applicant father to spend 3 hours supervised time each alternate Sunday plus video calls on Tuesdays and Thursdays. Late 2021 Applicant father undergoes hair follicle testing.
Produces a negative result.8 February 2022 Video call between applicant father and children Early 2022 Respondent mother says that the applicant father introduced his partner Ms K to the children during a supervised visit. 2022 Children celebrate a special occasion with the father and Easter.
Children meet Ms K’s children.
Applicant father tells children that he and Ms K are getting married.Mid-2022 Respondent mother says that applicant father has not seen the children from this point in time saying that he cannot afford visits and that he stopped paying for Ms Millen’s sports class. 24 May 2022 Video call between applicant father and children. 11 June 2022 Parents exchange texts about child support related issues. 12 June 2022 Children spend supervised time at a Sports Club with the applicant father 13 July 2023 Day 1 of Final Hearing before Judge Street APPLICANT’S EVIDENCE
The applicant was cross-examined in relation to his interactions with the respondent mother. The applicant impressed the Court as a responsive and candid witness, albeit he took issue with the majority of the assertions of alleged family violence by the respondent. The applicant did admit a relevant argument occurring, in relation to which, in the absence of the children, he punched a mirror. The applicant also admitted that there had been an argument in a car with the respondent, which gave rise to him getting out of the car and walking home. The nature of the alleged incidents by the respondent are at a high level of generalisation.
The Court does not accept that the historical alleged family violence involved sexual assault, choking or action in jealousy. There was acknowledgement by the applicant that there were no issues between the father and the children in the supervised access reports. The Court does not accept that it is necessary to resolve the conflicting evidence in relation to alleged family violence allegedly perpetrated by the applicant in the circumstances of this case. In relation to any alleged jealousy, it is apparent that the applicant has moved on and has a relationship with a partner, Ms K, in a large home in Region G, and that she has four children, a daughter aged 11, a son aged 12 and two 18 year old children, all of whom spend some unsupervised time at the home of the applicant and Ms K. The applicant identified having recently obtained employment initially as a contractor, now permanently.
The Court does not accept that the evidence supports a finding of problematic parenting by the applicant. The Court accepts that there was conflict between the applicant and the respondent during the relationship and accepts that some of that conflict may have occurred in the presence of the children. The Court does not, however, accept that the respondent’s ability to safely parent the two children has been undermined by the evidence of the respondent or by his cross examination. The Court accepts the applicant’s evidence that he loves his children and wants to have a meaningful and significant relationship with them for the benefit of the two children. The Court accepts the applicant’s evidence that it was due to his financial circumstances and the relocation to Region G that he was unable to attend the supervised visits arranged in 2022 in June and which had caused earlier difficulties in his attendance.
The applicant accepted that he had given late notification in relation to his inability to attend, but that was due to his desire that his circumstances might hopefully have changed shortly before the visitation time. The attendance by the applicant before the Court in these proceedings, his willingness to identify a consensual position in relation to parental responsibility and with whom the children live show a level of insight by the applicant consistent with prioritising the best interests of the children. The Court does not accept that the applicant caused the children to be distressed in the telephone contact. The Court finds that the telephone contact was one being unnecessarily monitored by and interfered with by the respondent.
The Court finds that, to the extent that there was distress in relation to the children from any telephone contact with the applicant, it was primarily due to the unnecessary conduct of the respondent mother, albeit intended by the respondent mother to be protective and trying to keep her children safe.
RESPONDENT’S EVIDENCE
The respondent was not an impressive witness and appeared focused on maintaining a no-contact stance and could not explain adequately why her position had changed from one of understanding the importance for the children of a relationship with the father at the time of preparation of the family report to a no-contact stance. The Court finds that there has been no conduct of the applicant interacting with the children to justify this changed stance by the respondent. The distress in the telephone communication was primarily created by the unnecessary conduct of the respondent. The respondent’s evidence very much focused on her own perceptions of the history in the relationship with her and the applicant, rather than the relationship between the children and the father. The respondent’s changed position to advance a no time case appeared reflect the respondent being unable to grasp the importance of a meaningful and significant relationship between the children and their father for their advancement and development. The respondent mother appeared on the evidence to be taking the changed stance of no time because of the father disappointing the children in his failure to attend a special occasion and his failure to attend supervised visits. That attitude of the respondent is not one that reflects a current understanding as to the importance of the development and emotional welfare of the children by maintaining a relationship with their father.
The respondent mother’s unilateral approach to cease facilitating the telephone and video contact between the father and the children supports the adverse finding by the Court that the respondent mother has taken an unreasonable and over controlling approach in relation to the development of the relationship between the father and the children. The respondent mother maintained that it was the father who was seeking to manipulate the circumstances and to manipulate the children, whereas, in fact, it was the Court finds, the respondent who took steps to cease the telephone communication between the children and the father to the emotional detriment of the children. This also adversely impacts on the Court’s assessment of the respondent’s credibility.
The respondent mother maintained that she had been the victim of family violence and a controlling relationship. That relationship is clearly over. The difficulty the Court faces with the credibility of the respondent stems from her evidence shifting from the father spending time with the children and also the respondent now being determined to try to paint the applicant in the worst light. The intransigence of now maintaining that there should be no time with the children, without reasonable explanation, materially diminishes the credibility of the respondent in relation to her assertions of historical family violence. There was a begrudging acknowledgement by the respondent mother that the supervised interview reports reflected no difficulty in the time spent by the children in supervised access with the applicant.
Other than allegations of family violence involving interaction between the applicant and the respondent during the relationship, there is no recent event identified to support the view that the children were now at risk in spending time with the father. The respondent has not been able to point to new conduct by the applicant that could justify a no time case, as opposed to the different position of the mother at the time of the interviews with the family report writer. The respondent maintained that she wanted no time by the applicant with the children in order to keep the children safe. The applicant suggested that it might need to continue until the children were 16 or 18 and then suggested it might be able to be brought back to 15. The respondent mother’s position in relation to the father spending significant and meaningful time with the children was a jaundiced and subjective changed position to no time was unreasonable impacting adversely on the respondent’s credit. This stance materially impacts adversely on the credit of the respondent and accordingly, the Court is not satisfied that the contested historical events of family violence contended by the respondent should be accepted. To the extent of the historical conflict the Court prefers the evidence of the applicant disputing those events.
EVIDENCE OF THE FAMILY REPORT WRITER
Ms F gave evidence in relation to her interviews and views expressed in her family report. Ms F identified that she had not, since the writing of that report, had contact with the parties or children. Ms F identified what might be family violence of a kind that she would regard as justifying no time. The Court has made no finding to support that type of conduct that was identified by Ms F as sexual assault, choking or action in jealousy. The Court finds that there is no basis for finding that the applicant father will engage in future coercive behaviour or that the applicant will engage in problematic parenting. Ms F identified that approximately five months of supervised visits will be appropriate before progressing to unsupervised visits and, provided no relevant incidents, then progressing to unsupervised time.
Ms F confirmed that the view expressed through the ICL by the elder child in wanting to spend time with his father was consistent with the views expressed at the time she prepared the report and conducted interviews approximately two years ago.
The respondent's evidence also supported the children having enjoyed the contact time with the father.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. In the conduct of the proceedings the Court has had regard to the principles in s69ZN of the Act. The Court has had regard to the objects in s60B of the Act These are to ensure that the best interests of children are met by:
(a)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
(b)protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Court has had regard to the principles underlying these objects, except when it would be contrary to the children’s best interests. These principles are as follows:
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)Children have a right 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
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “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”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, 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.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in 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 family violence.
Further, 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. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s60CC(2) of the Act are, as follows:
·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.
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: ss 60CC(2)(b) of the Act.
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 Loddington Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’ [At 173]
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 relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally the following guidance emerges from authorities:
1.It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
2.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) and the Colt Children [2013] NSWChC 5 at [146]–[148].
3.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 only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
4.While each factor establishing risk need not be proved to the standard of s140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
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.
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.
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.
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.
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.
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.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
FINDING AND CONCLUSIONS
The Court is taking into account the above principles, statutory provisions of Part VII and law. The Court has taken into account that the paramount consideration are the best interests of the children. In that regard, under s60CC(2) the Court has taken into account the primary consideration in relation to the benefit of the children having a meaningful relationship with both of the children's parents, and the Court has also taken into account the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and that the latter need under s66C(2)(b) must be given greater weight pursuant to s60CC(2A).
In the present case, the Court is of the view that there would be benefit to the two children in continuing developing a meaningful relationship with their father. The Court finds that the children do have an existing relationship with the applicant father and finds that the children are likely to benefit from that meaningful relationship with the applicant. The Court finds that the children are not exposed to unacceptable risk of abuse, neglect or family violence by the advancement of that meaningful relationship with the applicant by the orders proposed. The Court accepts the evidence of the family report writer, given the findings made that this is not a no time case in relation to the applicant. The Court has not found conduct of the type identified by the family report writer that would warrant no time. The Court accepts that because of the history of the matter there should be a brief period of supervised access, given that that was unfortunately ended in June 2022.
Continuous supervised access is not ordinarily in the best interests of the children, and in the circumstances of the present case the family report writer supported progression of more meaningful time with the father if the Court made no adverse findings in respect of the more serious allegations of family violence. The Court has not made any such findings and the Court does not accept that this is a case of a kind in which there should be no contact or nothing but identity contact.
The Court finds that there is not an unacceptable risk of harm to the children from developing a meaningful relationship with the applicant father. The Court does not accept that unsupervised contact after a short period of time will give rise to any unacceptable risk of harm to the children from the applicant father. The Court accepts the applicant father's evidence that he will take steps to ensure that he complies with the steps required for supervised access before progressing to unsupervised access. The Court accepts that the applicant father understands the potential distress of the children or feelings of abandonment if he fails to attend.
Turning to the additional considerations, under s60CC(3)(a) the Court is of view that material weight should be given to the fact that the elder child has now consistently expressed views of wanting to have a relationship with his father. It is also of relevance that the family report writer supported that both children should be progressing their time together with the father. The child report writer did opine that the elder child's views should not be given decisive weight. The Court accepts the force of that observation, given the relative age of the child. Nonetheless, the Court does consider that the views of the elder child are of significance, particularly given that they also are corroborated by views expressed by the children to the respondent. Accordingly, the Court finds that some weight must be given to those views of the elder child which are consistent with progressing a meaningful and significant relationship with the father.
In relation to s60CC(3)(b), the children obviously have a close relationship with their mother as the primary carer. However, the Court finds that the children also have an existing relationship with their father, and that the father is sincere and genuine in his desire to progress that relationship. The Court accepts that the father loves the children and is desirous of spending significant time with the children for their benefit. The Court takes into account that the father has taken steps to introduce the children to his new partner and to their two step-siblings. There was some criticism advanced in relation to the applicant as to the manner in which he introduced the new partner. The Court does not accept the force of that criticism and finds that it was a constructive and sensible step for the applicant father to be taking so that the children had met the person with whom they may in due course be spending time as a stepmother, as well as step-siblings.
In relation to s60CC(3)(c), the Court finds that the applicant father’s failure to attend the supervised visits was due to his parlous financial circumstances and his relocation relating to the same but does not accept that it reflects an abandonment or loss of interest in his children. The Court accepts that the applicant was endeavouring to maintain telephone contact with his children, and that it was the respondent that prevented that continuing to occur in mid-2023, notwithstanding the existence of Court orders in that regard. The Court finds that the respondent mother has failed in relation to her parenting obligations by terminating that telephone contact which was required pursuant to a Court order and that it reflects adversely on the respondent’s credit in relation to her changed unwillingness to advance a meaningful relationship between the children and the father.
The Court finds that the children enjoyed their communications with the father and that the supervised time has to date been constructive and to the benefit of the children. In relation to s60CC(3)(ca), the Court finds that the father has endeavoured to comply with his parental obligations in circumstances where the respondent mother has in all the circumstances been overprotective of the children. The Court accepts that the applicant failed to attend supervised visits but finds that he had a proper and reasonable explanation for his failure in that regard and was clearly disappointed in being unable to attend and in letting down his daughter on a special occasion.
The Court finds, however, that it is the respondent who has failed to fulfil her parental obligations in relation to ensuring that the children were able to maintain telephone contact with the father. The unilateral decision to cease that telephone contact in mid-2023, notwithstanding Court orders, was unreasonable, to the detriment of the children and should not have occurred.
In relation to s60CC(3)(d), the Court is of the view that resuming for a short period supervised access will not adversely affect the children’s circumstances. The Court has taken into account the four to six-hour difference in location between the applicant father and respondent mother in relation to supervised visits and progressing that time. But for that location, the Court would have made orders for a more accelerated progression of the significant and meaningful time.
In relation to s60CC(3)(e), the practical difficulty of the distance between the applicant and the respondent and the expense incurred in having to travel to Sydney for the applicant and potentially stay overnight before supervised time does present a hurdle for the applicant. The Court is, however, satisfied that the applicant will prioritise his circumstances and expenses so that he can attend to the limited number of supervised visits required before progressing to unsupervised time and then progressing to shared time over the holidays. The Court has taken into account that there is some outstanding child support but has also taken into account that the respondent father has had recent contributions for child support deducted from his wages by his employer.
In relation to s60CC(3)(f), the Court finds that both parents are capable of meeting the needs of the children including their emotional and intellectual needs. In this regard, the father has undertaken recently a course and is in the progress of undertaking two other courses. The applicant father impressed the Court as having a genuine understanding as to the needs of the children and his desire to progress their relationship is consistent with his having insight in relation to their emotional and intellectual needs. Unfortunately, the Court is not quite so satisfied in relation to the respondent’s stance in respect of the no time for the children. It reflects a lack of insight by the respondent in relation to the needs of the children including their emotional and intellectual needs.
The Court is however satisfied that the respondent mother is capable of discharging her parental obligations including in circumstances if the Court makes orders progressing the meaningful and significant time for the children with the father.
In relation to s60CC(3)(g), the Court has taken into account the relatively young age of the elder child and his younger sister. The children are in good health and whilst there is a 14 year age gap between the parents, both parents appear capable of discharging their parental obligations. In relation to s60CC(3)(h), this has no application.
In relation to s60CC(3)(j), the Court finds the applicant has identified a genuine attitude to participate in the parenting of the children and his endeavours up until the cessation of the supervised visits are consistent with that attitude. The cessation of supervised visits was the subject of a reasonable explanation by the applicant that the Court has accepted. The Court finds that the applicant’s attitude to the children is consistent with that of a parent who understands their obligation to meet the best interests of the children. Because of the attitude of the respondent raised by the no time case, the Court is not of the view that the mother has demonstrated an adequate insight in relation to her responsibilities to ensure the advancement of the best interests of the children and to put aside the past relationship with the applicant. The Court does not accept that the respondent is unable to discharge her parenting duties with the progression of a meaningful and significant relationship by the children with the father.
In relation to s60CC(3)(j), the Court has not made findings of family violence of the kind advanced by the applicant. The Court accepts that there was a level of disagreement and some conflict between the parties towards the end of the relationship. That was most unfortunate. The Court does not accept that the father perpetrated family violence on the respondent. The Court does not accept that any family violence occurred in the presence of the children. The Court does not accept that the disputes and arguments between the parties have caused any real emotional or intellectual harm or other harm to the children. In relation to s60CC(3)(k), there is no current family violence order in place.
In relation to s60CC(3)(l), the Court is of the view that making the proposed orders is least likely to lead to the institution of further proceedings in relation to the children. The Court is also mindful of the need for finality as identified in s81in Part VIII and is of the view that the proposed orders are most likely to prevent further disputes consistent with s60CC(3)(l). In relation to s60CC(3)(m), the Court has taken into account the unreasonable stance adopted by the respondent in relation to the advancement of significant and meaningful time with the respondent.
The Court finds that the sooner that significant and meaningful time progresses, the better in the long‑term interests of the children. The Court finds that there is no unacceptable risk of harm to the children from the progression of a significant and meaningful relationship between the children and the father in the orders now proposed. The Court has also made orders preventing any physical discipline of the children, providing for the use of a family app or equivalent means of communication between the parties to ensure more frequent audio-visual, audio or digital communications between the father and children three times a week, and to ensure that the father is informed of school reports and able to attend school functions or activities of the children. The Court has also made orders in relation to special occasions. It is for these reasons the Court made the orders pronounced on 14 July 2023.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 29 November 2023
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