Goldberg & Keagle

[2021] FCCA 1049

FEDERAL CIRCUIT COURT OF AUSTRALIA

Goldberg & Keagle [2021] FCCA 1049

File number(s):

ADC 122 of 2017

Judgment of:

JUDGE BROWN

Date of judgment:

3 May 2021

Catchwords:

FAMILY LAW – interim hearing – parenting arrangements for child aged 5 – allegation of sexual abuse – nature of interim hearing – assessment of risk – is risk unacceptable.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 4, 60CC & 67Z

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

In the Marriage of N and S (1995) 19 Fam LR 837

M & M (1988) 166 CLR 69

W & W [2005] FamCA 892

Number of paragraphs:

101

Date of hearing:

3 May 2021

Place:

Adelaide

Solicitor for the Applicant:

Ms Tucker, for C M Tucker & Associates

Counsel for the Respondent:

Ms Fuda

Solicitor for the Respondent:

Kensington Legal Service

ORDERS

ADC 122 of 2017

BETWEEN:

MS GOLDBERG

Applicant

AND:

MR KEAGLE

Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	3 MAY 2021

UPON NOTING THAT:

1.The matter is listed for trial on the 4 and 5 of August 2021.

THE COURT ORDERS THAT:

1.With respect to information received from the Family Law Information Sharing Co-Location Project the instructing solicitors are at liberty to make one copy only for their files AND the parties are at liberty to read the material only and no further hard or electronic copies are to be made or provided to the parties.

2.Leave with respect to the materials referred to above is granted on the condition that all copies are destroyed at the conclusion of the matter.

THE COURT FURTHER ORDERS THAT:

3.The mother’s Application in a Case is dismissed.

4.The order suspending the father’s time with the child, X, is dismissed.

5.The father’s time with the child is to resume this Thursday 6 May 2021.

6.Further consideration of the matter is adjourned to 3 June 2021 at 9:30am before Judge Brown for trial directions NOTING the parties are to dial in on 1800 132 423 followed by 7076931952 #.

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 under the pseudonym Goldberg & Keagle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Delivered ex tempore)

JUDGE BROWN:

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Due to the controversies raised by the case and the fact that an Independent Children’s Lawyer has been appointed for the child in orders made by this Court dated 22 April 2021, it is appropriate that the reasons be transcribed and released to the parties. 

2. These are the resulting reasons.  The reasons have been corrected and errors of expression and syntax corrected in an attempt to make the orally delivered reasons amenable to being read.

3. This afternoon, I have to deal with an application in a case in which Ms Goldberg is the applicant and Mr Keagle is the respondent.  I will refer to them as the mother and father, as appropriate. 

4. The parties are the parents of one child, X born in 2015.  So X is going to be six years of age on her next birthday.  This case arises because the parties are unable to agree on arrangements for X’s care. 

5. In particular the mother has made an allegation that the child has been sexually abused by her father, which is strenuously denied by Mr Keagle.  In these circumstances, the mother seeks that existing arrangements for the father to spend time with X be suspended, which the father opposes.

6. The parties have a very long history of involvement in Court proceedings.  In fact, proceedings began between them on 16 January 2017, so that was before X was two years of age. 

7. At that stage, Mr Keagle, brought an application in which he sought to spend regular periods of time with X.  At that time, it was his position that the parties had begun a relationship together in 2014, but had known each other before that time and had then resumed their relationship via contact through the internet. 

8. When parties begin proceedings in Court they are required, pursuant to section 67Z of the Family Law Act, to file what is called a notice of risk, which outlines, in summary all issues regarding a child’s exposure to family violence, neglect or abuse.

9. Mr Keagle filed such a notice in which he made allegations that the mother had been violent towards him and had punched him in the face on one occasion and had thrown a bottle at him, while he was holding X. 

10. More significantly, it was his position that Ms Goldberg had issues to do with cannabis use and had previously been in a violent relationship with a person who had been a heavy user of methamphetamine. 

11. In this context, he alleged that the mother herself had had a history of methamphetamine use but had ceased it.  At the time, I think, Ms Goldberg was living in City B. 

12. The mother responded to this application on 1 February 2017.  At that stage she wanted what is called a recovery order in respect of X.  A recovery order is an order that directs police officers, in effect, to go and remove a child, by force if necessary, from another person and deliver it to a nominated person.  In this case the nominated person was to be Ms Goldberg and the child was to be removed from Mr Keagle. 

13. For obvious reasons, it is a significant order to make and is one which is only made if there is a very strong reason supporting it, invariably relating to the safety of a child.  So at this early stage, it was apparent that the parties have a long history with one another and that each has significant criticisms of the other centring on allegations that the other is an unfit parent. 

14. In her notice of risk, the mother asserted the father had issues to do with depression and the abuse of prescribed medication.  She was very critical that he had been aggressive and physically abusive towards her on a number of occasions and she was very critical that he had acted unilaterally in respect of X by retaining the child from her. 

15. So essentially, each of the parties asserted that the other had been violent towards him or her.  The mother conceded that she had been unsuccessful in obtaining an intervention order because she had been given some incorrect advice, presumably by the police, in respect of it.  The mother conceded that she had some prior issues to deal with her own psychological health. 

16. Early in the proceedings around February 2017, some orders were made for X to live with the mother and for Mr Keagle to spend periods of time during the day with her.  At the time, of course, X was not yet two years of age. 

17. It was further ordered that X was to be exchanged between the parties at the mother’s home at City B.  The parties were directed to attend a child dispute conference, but for reasons which are now long forgotten, certainly by me, neither party attended that conference. 

18. On 27 February 2017, it was agreed that the time between X and her father would be extended.  The case was adjourned and again on 1 June 2017, the parties agreed that X would spend time with her father at times to be agreed between the parties, and it seems to be the position – and this is not an unusual thing – that the parties had reconciled, at least temporarily, some aspects of their relationship.  How permanent that reconciliation was unclear to me at the time but obviously it has proved not to be enduring now. 

19. In any event, on 22 August 2017, the parties were able to reach final orders in respect of X, three days before her second birthday, and on that occasion Mr Keagle’s lawyer was Ms C and Ms Tucker was Ms Goldberg’s lawyer.  And Ms Tucker, I think, has been involved in this case from what the Americans call the get-go.  She remains the mother’s lawyer.

20. So it was agreed at that time that the parties would have equal shared parental responsibility for X.  She would live with her mother and spend time with her father from 3:00 pm on Wednesday until 2.30 pm on Saturday, each alternate week.  That was subject to the bus because Ms Goldberg, I think, was still living in City B, and Mr Keagle was coming up from Adelaide. 

21. So the case was consensually settled, on 22 August 2017, with the parties each having a significant degree of involvement with X, following significant conflict between them regarding all manner of allegations of anti-social behaviour.

22. The mother commenced the proceedings again on 27 February 2019.  So about 18 months later.  She again filed a notice of risk, as she was obliged to do.  In this document, she alleged that X had witnessed aggressive and brutal behaviour perpetrated by the father against the mother.  Ms Goldberg alluded to an intervention order made in May 2017, which was prior to the earlier final order having being made. 

23. The catalyst for the proceedings seems to have been again that Mr Keagle had retained X in his care in a forceful and violent manner and therefore a recovery order should be made. 

24. Mr Keagle responded to the application on 3 July 2019.  It was his position that at this stage, X was desirous of living with him and the mother’s living conditions were sufficiently insecure to justify him retaining her. 

25. He was critical that the mother was abusing illicit drugs and, in this context, he provided photographs of what he said were her drug paraphernalia and her consumption of drugs, which were annexed to his affidavit. 

26. He was concerned that the mother was not able to provide stable accommodation for X and X was not given enough to eat, and on one occasion, that her electricity had been cut off. 

27. Mr Keagle conceded that he had his issues with his own mental health and that he suffered from depression, anxiety and post-traumatic stress disorder, which he said was managed by prescribed medication from his GP. 

28. So, once again, the parties were in significant dispute with one another.  Against that difficult background, an interim hearing was organised.  By this stage, Ms Goldberg had moved to the northern suburbs of Adelaide from City B.  

29. At this stage, given issues had again arisen regarding drug use, some orders were also made for each party to have drug screen testing.  Orders were made for the father to resume spending time with X regularly but otherwise she should live with her mother. 

30. It was also ordered on 26 March 2019 that a family report be prepared with the report being released to the parties on 18 June 2019, I think.  It was prepared by Ms E, who is a social worker by profession and an experienced family report writer. 

31. Ms E identified the issues in dispute between the parties as being, from the mother’s perspective, her perception that her relationship with Mr Keagle was toxic, violent, chaotic and dysfunctional; and from the father’s perspective, Ms Goldberg had issues to do with insecure accommodation and drug use. To Ms E each party reported previous personal use of amphetamines and marijuana but each said they had not used those drugs recently. 

32. Ms E at this stage opined that X had a positive relationship with each of her parents and described X herself as being a vivacious, friendly, active and playful three-year-old child, who was polite and easily engaged with the consultant.

33. For reasons about which I am not now certain, Mr Keagle did not attend for that assessment, which was necessarily incomplete.  It was against this background that it was ordered that Ms E update her assessment.  This order was made on 12 October 2020, with the report being released to the parties on 31 March 2021.

34. The completion of the report was delayed for reasons beyond everyone’s control relating to the pandemic emergency.  In addition, as I recall, during 2020, because Ms Goldberg has got a compromised immune system, the parties agreed that Mr Keagle would not spend extended periods of time with X because of fears that Ms Goldberg may become infected with COVID.

35. Accordingly, these factors have led to a significant delay in respect of the progress of the proceedings.  In any event, there is now a date for final hearing, at which the parties’ very complicated relationship, with one another, extending over many years and in respect of which each of the parties is in a position to make very significant allegations of poor parenting decisions and other decisions against the other, will be thoroughly examined.

36. This afternoon, I’m not in a position to unpack all those allegations, and I concede that, in these orally delivered reasons, I have probably only skimmed the surface of the parties’ various allegations against one another. 

37. They have each filed very many affidavits, and the cases has taken very many twists and turns.  In any event, at the present time, the operative order in respect to X spending time with her father is one that was made in March 2019.  Pursuant to that order, X lives with her mother and spends time with her father from 9 am Thursday until 5 pm the following Monday on alternate weeks. 

38. At the time the order was made, X was not going to school and so the order does not provide for any holiday time.  Because of the parties’ mistrust for one another, she is to be exchanged between the parties inside the Suburb F Police Station. The parties are also each directed to inform the other of their residential address.   

39. What has happened recently is that the mother has filed an application in a case.  She did that on 28 April 2021.  In that application, she is seeking that that order be suspended and that the parties enrol at the G Contact Centre and the father have supervised time, with X, at the children’s contact centre. 

40. She also seeks that an Independent Children’s Lawyer be appointed.   This application has been actioned by the Court.  However, at this stage, the Legal Services Commission tell me they have not received the documents from each of the parties, although the lawyers tell me otherwise today.  In any event that appointment of the Independent Children’s Lawyer has not yet been made.

41. It also seems to be the case that the parties have been referred to a number of alternative dispute resolution interactions and, at least ostensibly, they have been able to reach agreement in respect of X’s care, but that agreement has currently evaporated.

42. It would seem to be the case that the parties have periods when they communicate with each other with some facility and, indeed, they are quite close to one another on occasions.  They clearly know each other very, very well indeed, but things occur and whatever consensus existed disappears and the case comes back to court. 

43. I regret that, for all sorts of reasons, this case has been so protracted and there has been no final hearing.  This due to all sorts of factors: the fact that the parties have reached agreement, which has not been lasting; delays in the Court system; COVID-19; the incomplete family report; and so on and so forth.

44. What happens at a final hearing and what has not as yet occurred, so far as Mr Keagle and Ms Goldberg are concerned, is that they each go into the witness box and they make their cases and the other’s lawyer does his or her best to, as it were, effectively, destroy the other parent’s credibility and capacity, as a parent.  It is an adversarial process.

45. What, ultimately will be the outcome of that process is unclear to me, but it seems, and I mean no disrespect - Mr Keagle is not here today – but both parties, I think have their wounds and it’s not going to be a nice experience, if in the formal courtroom, for those wounds, if they are starting to heal, to be unpicked in public.  Essentially, it seems each party has much mud to throw against the other.

46. But there is not much I can do about that, if the parties require such a process.  It won’t help them to have a better parenting relationship, so far as X is concerned.   But that process will not be happening today.  Today it is what lawyers call an interim hearing, which takes place in a shortened form, without cross examination. 

47. Rather, I just have the parties’ affidavits to consider and, if there are disputes, so far as the facts are concerned, I am not able to resolve those discrepancies from just reading the affidavits.

48. I suspect, and I mean no criticism of the lawyers involved, but perhaps that not the greatest degree of thought and care has gone into preparing them.  The thing about this type of case is that people are endlessly reactive – they say things quickly, then the other reacts quickly and that creates a circle and there’s no capacity to put a handbrake on it. 

49. Anyway, at this stage, I can’t make findings of fact about all sorts of things that have happened between the parties in the past or, indeed, more significantly in respect of X and her care.  In this context, the evidence of an independent person, such as a report writer, is likely to be central.

50. That does not mean I am not required to make a decision or attempt to make a reasoned assessment of issues of risk arising in respect of her care.  This case is one concerned with risk and its assessment in the context of an interim hearing.

51. As I say, this case has had a long history leading up to a final hearing, which has been scheduled to take place in a comparatively short period of time, in August of this year.  This date was allocated in October last year.

52. The reason the mother wants to suspend time between X and her father is set out in her affidavit.  It is the mother’s case, essentially, I suppose since 2017, that she has had deep suspicions about Mr Keagle’s capacity to care for X.  On the other hand, it is Mr Keagle’s case that, since 2017, he has had deep suspicions about Ms Goldberg’s capacity to care for X. 

53. Anyway, Ms Goldberg alleges that X has told her that dad fell asleep on the kitchen floor and she couldn’t wake him up.  She says she became aware that Mr Keagle was taking X to the homes of people where he, in the past, had dealings with drugs.  Ms Goldberg doesn’t depose how she became aware that was happening – it’s just, with the greatest respect, a bold statement. 

54. X has apparently reported that she has been left by herself and her father wasn’t present.  She’s complained that her father has yelled at her and has been nasty to her.  It is also the mother’s case and  that Mr Keagle has not got a licence and has been driving X to and from handover, so that is problematic. 

55. All those things happened in 2020 and it seems to be Ms Goldberg’s case that they concerned her, but they weren’t of sufficient moment to cause her to formally do anything about it. 

56. However, it’s her case that on 1 March last year, X made some disclosures to her.  She said she collected X from school.  X jumped on her lap and the two were cuddling when X tried to kiss her with her tongue.

57. Ms Goldberg told X to stop, but she did it again and X said dad does this, and she (X) told me (the mother) not to tell dad about it, presumably so she would not get into trouble.  The mother said she would not tell her father.

58. Later, the child wet her pants and was upset, which was apparently out of character for her.  Ms Goldberg raised this behaviour with X’s school counsellor and with her own counsellor at H Centre and it was reported to a doctor.  

59. X has apparently had a session with a psychologist.  I haven’t got any material from the psychologist and a police officer called Mr J was contacted and some form of report made.  What is the nature of that report and the involvement of police is unclear to me, other than it seems that they are not going to take the matter further.

60. X was collected by her mother on 15 March 2021 which was a Monday - so presumably after she attended with her father – she is alleged to have had a bruise on her arm.  She was asked, by her mother, how she bruised her arm.  She said she couldn’t remember – that’s X couldn’t remember. 

1. When asked again, X reported that her dad had pushed her in the lounge room and hit her in the chest.  Ms Goldberg said she asked if dad had tried to comfort her and she was told that she was put into her room.  And Ms Goldberg asked why, and X said he wanted her to go to the toilet, but she didn’t want to.  He was insisting, as he told her he did not want her to wet the bed.

2. Again, these incidents were reported to the school counsellor.  Ms Goldberg determined that this was sufficient to withhold X from her father, but it seems common ground that Mr Keagle collected X, from her school, on the Thursday before Easter, as normal, which has done nothing to ease tensions between the parties. 

3. This, from his perspective, resulted in Ms Goldberg contacting police, who did a welfare check and he deposes that they attended – the police that is – attended at his home and they spoke to X and were not concerned about either his premises or the behaviour of X herself. 

4. In his response to these allegations, Mr Keagle denies that he has ever kissed X on the mouth.  In this context, he conjectures that if the child has seen any videos that are inappropriate or have sexual content, it was not in his household because, when he has X, he only watches Peppa Pig or other ABC programs suitable for children. 

5. From his perspective, he has not been contacted by police or X’s school counsellor or anyone else who is concerned with the child’s safety.   He deposes that he did not see the bruise on X’s arm, and he doesn’t know what or how, if she has bruised herself, how it has occurred. 

6. Ms Goldberg’s deposed that she took photographs of the bruise on X and some photocopies and photos have been sent and as I’ve said to Ms Tucker they’re blurred.  I really can’t make anything out on them and it’s notable that there is no medical material from a doctor who says that he’s inspected the child and what is the nature of the bruises – that is whether the bruises are consistent with an assault.

7. It is Mr Keagle’s case that X has made disclosures to him that seem to indicate that X has been exposed to her mother’s drug taking.  In particular, as he has alleged in the past, he alleges Ms Goldberg smoked cannabis or hash or something like that in a bong, which he says that he has seen and which X has seen and refers to as her mother using smoke bombs. 

8. It is, essentially, Mr Keagle’s case that, over a significant period of time, Ms Goldberg has made all matter of allegations against him, with a view to sabotaging his relationship with X which has, hitherto, been a close and happy one, extending over many years, whilst, at the same time, she has had real issues with drug use and managing her finances.

9. It is in this difficult context that the up to date family report of Ms E is relevant.  Again, in her most recent report, Ms E has again provided the parties’ history with one another and, sadly, to her, both Ms Goldberg and Mr Keagle have said they have had no improvement in their capacity to communicate effectively with one another. 

10. Neither trusts the other and both asserts that the other provides an unsafe care regime for X.  Ms E was made aware that there was some issues regarding allegations of sexual abuse, but, given how recently they had been raised, and they hadn’t been raised formally in Court documents, she didn’t feel that it was her role to try and examine them.

11. I can appreciate why that would be so.  To Ms E, X had the appearance of a friendly and playful five-year-old.  She was polite and she engaged easily with Ms E and Ms E thought she was honest in how she reported her thoughts and feelings.

12. X reported she was at reception at K School and she was happy about school and she said she was living with her mum and her siblings L and M.  She said that she found living with her father a little bit boring, but she was positive about Mr Keagle’s cat, who’s called N.

13. X was aware that her parents did not get along.  She reported that her mother got a little bit angry with her from time to time but was not able to articulate any concern further.  She indicated that her father was not nice and would growl at her which caused her to feel unsafe.  Significantly, when asked about current time spending arrangements, X was able to indicate a 10/4 night regime and indicated that she wanted it to stay the way it was.

14. So, in summary, in interview, X expressed some reservations about her father, particularly that she didn’t feel safe in his care but was not able to indicate why this was so or what he did when he was not nice. 

15. However, in contrast to these statements, when the time came for her father to arrive, she was absolutely delighted to see him.  Ms E reported that she jumped into his arms and Mr Keagle reciprocated her affection in a natural and familiar way.  The play between the two was described as free-flowing and as appearing natural and familiar.  Mr Keagle was described as being attentive to X’s needs. 

16. As I understand it, Mr Keagle has had a stroke.  I may be wrong about it but he needs quite a deal of support and he has some support workers who help him and Ms E, I think, spoke with them and, they too, indicated that Mr Keagle had a positive relationship with X and they also indicated that they helped him with transport, refuting Ms Goldberg’s allegation that he drove X whilst unlicenced.

17. X appears to be familiar with Mr Keagle’s support people, so I think that’s a significant piece of evidence.  It’s also significant that when the observed interaction ended, X didn’t want to separate from her father and asked Ms E if they could have more time together.  And when that couldn’t happen, X jumped into her dad’s lap, embraced him with a hug and a kiss and then played with his hair in an affectionate manner and hugged him goodbye. 

18. Anyway, after that, Ms E went to talk to Ms Goldberg and X seems to have been a little bit naughty and ran back into the room, where her dad was, so she could spend some more time with him and had to be encouraged to go off with her mum and then she left happily in her care.  I should say that no concerns were observed about X’s interactions with Ms Goldberg. 

19. Ms E remarked that there had been no improvement in the parties’ relationship with one another.  The litigation between them being almost constant in X’s life and Ms E didn’t think the matter would resolve without a trial. 

20. In terms of the mother’s claim that X had a poor attachment with her father and didn’t feel safe in her father’s care, from Ms E’s position, this clearly wasn’t consistent with how the child behaved with the father.

21. So at the end of that process, Ms E said, essentially, keep things as they are, unless Department for Child Protection (DCP) think there’s something in the allegations that have been raised.  It seems fairly clear that the DCP aren’t going to become involved and that the police have spoken with X and bearing in mind her age and what she said, aren’t going to take the matter any further. 

22. So it falls to me to determine the case.  On the one hand, the mother wants a regime of strictly supervised time.   Due to delays in accessing the G Children’s Contact Centre, that essentially means no time until the trial, whereas the father’s position is that the current regime should be reinstated urgently.

23. At the outset, it is to be noted that, although the nature of the hearing is different at the interim hearing stage, as opposed to the final hearing stage, the principles to be applied are the same.  They are contained in Part VII of the Family Law Act 1975,

24. In deciding this case, I must have regard to X’s best interests as the paramount or most important consideration. The matters to be taken into account, in deciding how that is to occur are set out, in list form, in section 60CC of the Family Law Act 1975 (Cth).

25. There are two categories that must be considered – divided into primary considerations and additional considerations.  There are two primary considerations and they are generally more significant in most cases to do with children.

26. The two primary 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.[1]

    [1] Family Law Act 1975 (Cth) s 60CC(2)(a)-(b).

27. Protective concerns are to be given priority over issues relating to child/parent relations. This is a case concerned about abuse and the protection of X from abuse. Abuse is defined in section 4 of the Family Law Act 1975 (Cth) and includes sexual abuse or an adult using a child in some form of sexual activity.

28. Obviously, any person who uses a child for his or her own sexual gratification has exposed the child to the most severe abuse and, if that person is a parent that is a most serious abrogation of parental responsibility.  Such behaviour is the most severe exploitation of a child and has the potential to do untold damage to the child concerned. 

29. However, the late Fogarty J said In the Marriage of N and S that:

    courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.[2] 

    [2] (1995) 19 Fam LR 837, 856.

30. Essentially, at this interim stage, I have to assess risk.  Clearly if X has either been sexually assaulted by being kissed in the manner alleged by Ms Goldberg or assaulted so that she has got a bruise in her arm, the only two individuals who know, definitively, what happened, Mr Keagle and X.

31. Mr Keagle, for obvious reasons, is not likely to be, if these things happened, to be candid about them, and X, as a five-year-old, given her developmental skills, is not in a position to make a coherent statement about what did or did not happen to her. 

32. Certainly, neither DCP, nor the police, believe that that is possible for them to take the matter further and neither appear willing to do so.  So I, nevertheless, notwithstanding the difficulties surrounding the evidence available, have to make some assessment of the risk of X having been sexually abused, particularly in respect of the degree of risk it represents to X, in prospective terms.

33. In Deiter & Deiter the Full Court said:

    Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.[3]

    [3] [2011] FamCAFC 82, [61] (Finn, Thackray and Strickland JJ).

34. In a case called M & M,[4] the High Court indicated the test was one of ‘unacceptable risk’, which entailed the balancing of the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent. 

    [4] (1988) 166 CLR 69, 78 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ).

35. Cases involving sexual abuse are particularly difficult for the reasons which I have outlined, however, in a case called W & W,[5] the Full Court has indicated that I should ask myself a number of questions such as the following:

    [5] [2005] FAMCA 892, 148-9 [105], quoting In the Marriage of N and S (1995) 19 Fam LR 837, 860 (Fogarty J).

    •What is the nature of the events alleged to have taken place?

    •Who has made the allegations? 

    •To who have the allegations been made? 

    •What level of detail did they involve? 

    •Over what period of time have the allegations been made?

    •Over what periods of time have the events alleged to have occurred? 

    •What are the effects exhibited by the child? 

    •What is the basis of the allegations? 

    •Are the allegations reasonably based? 

    •Are the allegations genuinely believed by the person making them?

    •What expert evidence have been provided? 

    •Are there satisfactory explanations for the allegations apart from sexual abuse? 

    •What are the likely future effects on the child concerned?

36. Obviously, the weight to be attached to these questions depends on the type of case.  So in this matter, this is a case in which each party has made significant allegations against the other over a significant period of time.  There is not a great deal of detail in the allegations. 

37. In terms of the effects exhibited by the child, the mother has said she was incontinent.  There is no expert evidence in respect of those allegations.  They’ve been investigated to some degree by the police. 

38. More significantly, if Ms E’s evidence is to be accepted, at this stage, there are no effects on X herself who, notwithstanding, what is said to have occurred to her, has engaged happily and freely with her father in a loving way.

39. So in a case like this one, I’m concerned that there is a risk that X’s relationship with her father may be significantly reduced and even truncated or severed on the basis of a very uncertain allegation.  I don’t think that would be in her best interests. 

40. At this stage, in assessing the risk, I don’t think that it’s an unacceptable one for me to take to reinstate the orders.  To the contrary, I think there is a significant that X will be deprived of the love of her father on the basis of an allegation that may be very imprecise indeed.  I think it’s not worthy that the police weren’t concerned about X on the Easter weekend.

41. So for all these reasons, the orders of the court, will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

Associate:

Dated:       25 May 2021