Gustafsson & Jeanes (No 2)
[2024] FedCFamC1F 494
•25 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gustafsson & Jeanes (No 2) [2024] FedCFamC1F 494
File number(s): NCC 459 of 2023 Judgment of: ALTOBELLI J Date of judgment: 25 July 2024 Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Where there are potentially complex issues of family violence – Where the father seeks for the child to live with him – Where the father seeks an injunction against the mother’s husband – Where the Court finds it is in the bests interests of the child to live with the mother and have no communication or contact with the father – Where the Court finds that the child will be safe if time with the mother’s husband is never unsupervised – The father’s Application in a Proceeding is dismissed. Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61D, 61DAA, 61DAB, 68Q
Family Law Amendment Act 2024 (Cth)
Mental Health Act 2007 (NSW)
Cases cited: Cao & Cao (2018) FLC 93-880; [2018] FamCAFC 252
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Illes & Nelisson (2022) FLC 94-092; [2022] FedCFamC1A 97
Jeanes & Gustafsson [2024] FedCFamC1A 101
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Kozma & Bielen [2022] FedCFamC2F 1003
M v M (1988) 166 CLR 69; [1998] HCA 68
Marvel & Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 10 July 2024 Place: Sydney The Applicant: Litigant in person Solicitor for the First Respondent: Oliver Howells & Co. Legal & Conveyancing The Second Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Jennifer Blundell and Associates ORDERS
NCC 459 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JEANES
Applicant
AND: MS GUSTAFSSON
First Respondent
MS BLUTH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1.The Applicant’s Application in a Proceeding filed 15 March 2024 is dismissed.
2.Pursuant to s 68B of the Family Law Act 1975 (Cth) the First Respondent be restrained from leaving Y born 2010 and X born 2007 in the unsupervised care of MR D born 1980.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jeanes & Gustafsson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the further interim orders made in a very complex parenting case. The case is about two children, X who is 17 years old and currently lives with his father (“the father”) in Victoria, and Y who is 14 years old and currently lives with his mother (“the mother”) in New South Wales (“the children”). The mother and the father also have another child from the relationship, Ms E, who is 20 years of age and not a subject of these proceedings.
BACKGROUND
The Family Report of Court Child Expert Ms G dated 26 October 2023 (“the Family Report”) refers to the children at paragraphs 167 and 168 in the following terms:
167.[X] and [Y] (and [Ms E]) report a childhood severely impacted by experiences of physical, sexual, and psychological abuse. The abuse they have described has impacted on all aspects of their development, wellbeing, and relationships, and continues to diminish their daily functioning.
168.The children have interfaced systems such as police, child protection and education, where they have presented with symptoms or accounts of abuse, which have been disregarded. The isolation and hopelessness the children must have experienced as a result, would have compounded their trauma. The children’s mistrust in systems may have lasting effects on their life trajectory.
In addition, the children have experienced extremely poor mental health. The maternal aunt reported that X has experienced hallucinations and suicidal ideation, was once scheduled under the Mental Health Act 2007 (NSW), and has engaged with a psychologist for a diagnosis of post-traumatic stress disorder. In her Outline of Case Document received 9 July 2024, the mother also indicated that X has been diagnosed with a mental health disorder. The Family Report writer indicated that both X and Y presented as having some vulnerabilities in their cognitive and emotional capacities. It was reported by the maternal aunt that Y has been diagnosed as having learning disabilities. Both parents asserted in their submissions that Y has autism and ADHD.
The father is 45 years of age and is currently unemployed. The mother is 43 years of age and it is unclear whether she is currently employed. The father lives in Victoria and the mother lives in New South Wales. The maternal aunt (“the maternal aunt”) is 39 years of age and is employed as an allied health worker. She has a partner and three children (including two step-children) and also lives in New South Wales.
The parents commenced a relationship around 2003, married in mid-2006, separated on a final basis in 2019 and divorced in mid-2020. The mother has re-partnered with Mr D. The mother and Mr D commenced cohabitation in mid-2019 and married in early 2022. They have no children together and Mr D has no children from any previous relationships.
This matter has a complex and lengthy litigation history, commencing in May 2019. The litigation history of this matter is outlined in detail at [8]–[25] of the Full Court judgment in Jeanes & Gustafsson [2024] FedCFamC1A 101 and need not be wholly repeated in these reasons. The matter involves concerning allegations of sexual, physical, and psychological abuse perpetrated by the parents, and people known to the parents, towards each other and the children. The matter is listed for final hearing for 10 days commencing 4 November 2024.
By way of summary, in terms of the children’s living arrangements, upon separation the children remained in the primary care of the father in Victoria and the mother relocated back to New South Wales. This arrangement was solidified in final orders made by consent on 3 March 2021, with the parents to have equal shared parental responsibility for the children. In late 2022, X went to live with the mother, and on 16 May 2023 orders were made for X to live with the maternal aunt. On 1 June 2023, orders were made for Y to live with the mother, which was implemented by way of a recovery order. In mid-August 2023, X entered refuge accommodation due to his unstable mental health and associated behaviour. Orders were made on 8 November 2023 for X to live with the mother. In early 2024, X returned to Victoria to live with the father.
The most recent combination of interim orders in place up until the interim hearing on 10 July 2024 (including orders made on 1 June 2023, 8 November 2023 and 6 March 2023) provided for both X and Y to live with the mother and spend no time and have no communication with the father. The father is restrained from approaching the mother, the children, their residence or the children’s schools, and from communicating with the children. It should be noted that it seems to be common ground that the father has breached these orders by communicating with the children, whether that be directly or indirectly. It is also common ground that X has chosen, at least for the time being, to move back to Victoria to live with the father. Further restraints have also been put in place regarding the children’s paternal grandfather and paternal cousin, as well as any of the father’s nominees.
When the matter came before me for interim hearing the children were represented by an experienced Independent Children’s Lawyer. The mother was legally represented. The father and the maternal aunt represented themselves. Both the father and the maternal aunt had filed evidence in support of their claims, and both presented their submissions clearly and articulately.
At the commencement of the interim hearing on 10 July 2024 the Court was able to facilitate an agreement between the parents in relation to X. This was embodied in a consent order made on that date. The parents and the maternal aunt agreed that X could decide where he lives, and that parental responsibility would be allocated to that parent. Modifications were made to the restraints put in place by a Senior Judicial Registrar on 8 November 2023, dependent on who X chooses to live with.
Notwithstanding the complexity of the issues in this case, it became apparent that only two issues required interim determination. The first issue is what sort of injunction for the protection of Y needed to be made in relation to the mother’s current husband, Mr D. The second issue is about what are the parenting orders in the best interests of Y in relation to the father.
COMPETING PROPOSALS
In relation to the first issue, the father proposes that Mr D be restrained from coming within 200 metres of Y at all times. The mother, the maternal aunt and the Independent Children’s Lawyer oppose this restraint, but all agree that Y should never be left in the unsupervised care of Mr D.
In relation to the second issue, the father proposed two alternative options: either Y return to his care and live with him, or Y remain living with the mother but that he (the father) be permitted to have professionally supervised time with Y at a contact centre near City K. The mother, the maternal aunt and the Independent Children’s Lawyer all agree that Y should remain living with the mother and spend no time and have no contact with the father (as per the existing arrangement).
MATERIAL BEFORE THE COURT
In support of his case, the father relies upon the following material:
(a)Application in a Proceeding filed 15 March 2024;
(b)His affidavit filed 15 March 2024, including annexures;
(c)His affidavit filed 2 April 2024, including annexures; and
(d)His updating affidavit filed 4 July 2024.
In support of her case, the mother relies upon the following material:
(a)Outline of Case Document received 9 July 2024;
(b)Response to an Application in a Proceeding filed 9 July 2024;
(c)Her affidavit filed 9 July 2024;
(d)Her affidavit filed 27 October 2023;
(e)Her affidavit filed 3 August 2023;
(f)Her affidavit filed 2 May 2023;
(g)Her affidavit filed 17 February 2023;
(h)Her affidavit filed 3 April 2024;
(i)Notice of Child Abuse Family Violence or Risk filed 17 February 2024;
(j)Second Amended Initiating Application filed 26 May 2023; and
(k)Various documents tendered during the proceedings and marked as Exhibits RM1–RM6.
In support of her case, the maternal aunt relies upon the following documents:
(a)Her affidavit filed 25 March 2023; and
(b)Her updating affidavit filed 10 July 2024.
In support of her case, the Independent Children’s Lawyer relies upon the following documents:
(a)Outline of Case Document filed 10 July 2024;
(b)Family Report of Ms G dated 26 October 2023;
(c)Child Impact Report of Ms H dated 5 May 2023; and
(d)Documents tendered during the proceedings and marked as Exhibits ICL1–ICL3.
APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA.
The objects of Part VII are set out at s 60B:
60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In regard to parental responsibility, the presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation a child as follows:
61D Parenting orders and parental responsibility
…
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:
61DAA Effect of parenting order that provides for joint decision-making about major long-term issues
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues.
Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
It should further be noted that due to the repeal of the former s 65DAA of the Act, there is no longer the statutory requirement for the Court to consider equal time or substantial and significant time. Cases that refer to this section will need to be carefully considered as to whether they still apply in limited ways, if at all.
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(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.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(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; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(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.
The case law
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 at [68] provides some guidance as to the procedure of interim parenting hearings:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
An interim hearing proceeds on evidence that is yet to be tested. There is no cross-examination to establish the veracity of the evidence before the Court. Where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73]:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so.
Nonetheless, any such findings made at an interim hearing “should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence” (SS v AH [2010] FamCAFC 13 at [88]).
It is important to recognise that interim orders are only a waypoint on the road to a final solution for the family unit. As explained by the Full Court in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 at [120] (“Marvel”):
As has been frequently emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.
The recent amendments to the Act
Pursuant to subsection 60CC(2)(a) of the Act the Court must have regard to what arrangement would promote the “safety” of the child and each person who has care of the child (whether or not a person has parental responsibility for the child).
“Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning (Momcilovic v The Queen (2011) 245 CLR 1 at [56]). This Court is drawn to a view that “safety” is a state in which hazards or conditions leading to physical, psychological or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary (Illes & Nelisson (2022) FLC 94-092 at [84]). The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not (Evidence Act 1995 (Cth) s 140(2)).
The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred (Cao & Cao (2018) FLC 93-880 at [46] (“Cao”)). Inconsistencies and anomalies can reduce the weight given to evidence (Cao at [56]).
Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue and are lacking in corroboration (Marvel at [122]–[123]; Salah & Salah (2016) FLC 93-713 at [33]–[45]; Eaby & Speelman (2015) FLC 93-654 at [18]–[19]).
The Court’s function is discharged by examining the evidence carefully to determine whether it establishes an unacceptable risk of harm (M v M (1988) 166 CLR 69at [25]). Some risk arising to a child’s safety may be capable of amelioration by further order of the Court (Keane & Keane (2021) 62 Fam LR 190; Kozma & Bielen [2022] FedCFamC2F 1003). A risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not (Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [148]–[149]).
ISSUE ONE: INJUNCTION AGAINST MR D
Multiple allegations of a sexual nature have been made against Mr D. Three incidents in particular were brought to the Court’s attention. Firstly, and most recently, subpoena material provided by New South Wales Police (“NSW Police”) shows a Computerised Operational Policing System (“COPS”) event recorded in early 2024 (Exhibit ICL1) where NSW Police attended Mr D’s residence after they received a call from a member of the public stating that Mr D was masturbating outside. Mr D denied this behaviour when questioned. No further action was taken, but it was noted that “Police are of the belief that [Mr D] was more than likely masturbating in the view of the public…”. Secondly, in 2019 Mr D sent the mother intimidate photographs of himself which were allegedly unintentionally seen by the children. Lastly, there are historical allegations of sexual assault perpetrated by Mr D against his then step-daughter in 2010, and at least one other young girl in 2004, after which Apprehended Violence Orders (“AVO”) were issued.
The Independent Children’s Lawyer submitted that against the backdrop these previous allegations, Y should never be left in the unsupervised care of Mr D. She suggested that it would be appropriate for a restraint to be put in place under s 68B(1)(b) of the Act. However, she agreed with my proposition from the bench that, fundamentally, her proposal is simply that Y is never left alone with Mr D, which is the same view held by the mother and the maternal aunt.
The mother’s solicitor submitted that the children all report to having a good relationship with Mr D. She referred to paragraphs 96–99 of the mother’s affidavit filed 9 July 2024 where the mother deposes to being aware of the above allegations but asserts that Mr D denies these allegations, has never been charged, and has been “nothing but supportive” to herself and the children. She referred to paragraph 67 of the Family Report where Mr D said he would relocate to the home of the maternal grandfather so that the children could spend time with the mother (due to restrictions imposed by an AVO), and that he had a “close” relationship with Y and a “great” relationship with Ms E. The mother’s solicitor also relied on paragraph 14 of the Child Impact Report of Ms H dated 5 May 2023 (“the Child Impact Report”) where the children did not raise any concerns in relation to Mr D and where Y felt the AVO protecting him from Mr D was unnecessary and said the allegations of the father that he is unsafe with Mr D are lies. Similarly, at paragraph 24 of the Child Impact Report, X and Ms E denied ever seeing any intimate photos of Mr D and said the father’s allegations about the same are lies. She noted paragraph 75 of the Family Report which expressed concern about the interconnectedness of the family’s electronic devices in relation to both the exposure to intimate images of Mr D, and the continued monitoring of the mother and the children despite current injunctions.
The father submitted that based on previous events, Mr D poses a risk of harm to Y and the mother is unable to protect Y from this risk. He referred to the incident where Mr D sent inappropriate photos of himself to the mother, which the children allegedly saw, and that Y was left in the unsupervised care of Mr D on Christmas Day in 2022 despite there being an AVO prohibiting the same. He also referred to the more recent incident in early 2024 where the police received a complaint that Mr D was masturbating in his front yard. He submitted that the children are vulnerable, and that Y has autism and ADHD. He questioned whether the mother would comply with an order for supervision in relation to a risk she does not believe exists.
The maternal aunt had nothing further to add to the above submissions.
The Court notes that there are no current orders in relation to Mr D made by this Court. However, the father obtained an AVO in 2019 prohibiting the children from living with Mr D or spending any unsupervised time with him, after the incident where the children allegedly saw intimate photos sent by Mr D to the mother. This AVO was extended on multiple occasions. Y and Ms E are apparently no longer listed as protected people, but X is still listed as a protected person. Further, an Intervention Order, naming Mr D as the respondent and Y as the second named affected person, was made by the Magistrates Court of Victoria at City J in late 2022, which is set to expire in late 2024. An order under s 68Q of the Act was made in mid-2023 and late 2023 respectively in relation to the said Intervention Order when orders were made for Y and X to live with the mother.
The Family Report writer described Mr D as calm and polite, and that he presented with some limitations in understanding some of the more complex issues in this matter. She described the father’s allegation that Mr D sent intimate photos of himself to the mother’s phone, which the children reportedly had access to. Mr D did not deny sending an intimate photo to the mother’s phone, but explained that he did not know the mother’s phone was synced to other family devices and that he never sent the mother any other photos after learning this. The Family Report writer further described the historical allegations of sexual assault perpetrated by Mr D against young girls (including his stepdaughter) in 2004 and 2010, as well as Mr D being suspended from his employment in 2020 due to sexual harassment allegations. Mr D denied the allegations.
The mother provided a very positive account of the relationships between Mr D and Ms E and Y to the Family Report writer, stating that both children now refer to Mr D as “Dad”. Y described Mr D as “really nice” and said he treats him and his siblings well. He explained that he has seen Mr D be angry at times, but that he does not yell, or hurt or name-call anyone. Neither X or Ms E raised any risk of harm concerns to the Court Child Expert in the care of Mr D and said they felt safe and loved in his care. The Family Report writer reported that the mother described Mr D as very supportive of her and the children, including Mr D always being willing to move out of the home to the home of the maternal grandfather, so as to support the children living with her.
The Family Report writer opined at paragraph 179 that:
While the father’s expressed concerns for [Mr D] appear disproportionate with [Mr D’s] actions, and contradictory to the father’s actions to facilitate the children’s time with known child sex offenders, this assessment has identified that there may be legitimate concerns about the children’s safety with [Mr D]. The available subpoena material suggests that [Mr D] has been accused of sexual harm against children on more than one occasion. Given the children’s developmental and emotional vulnerabilities, and the concerns about the mother’s protective capacities for the children, the nature of the risks associated with [Mr D] may need to be determined by the Court in order to establish the safest parenting arrangements possible.
She went on to suggest at paragraph 181 that:
If the Court finds that the children are at risk with [Mr D], consideration may need to be given to whether the risks can be managed by prohibiting the mother from leaving the children in his unsupervised care, or whether orders need to prohibit [Mr D] residing in the home. If the Court finds that the mother cannot protect the children from [Mr D], then the Court may need to consider whether the maternal aunt is a placement option for [Y] (and later, [X], if/when such a transition is considered appropriate).
The Court acknowledges that a possible issue at the final hearing is the nature and extent of the mother’s own protective capacities and insight about the possible risk presented to her children by Mr D. Nonetheless, it must be recognised that she does propose a form of ongoing supervision.
The Court also recognises the deep distrust that exists between the father and Mr D and thus that the father’s more drastic proposal for the total exclusion of him may be advanced with mixed motives.
The impression formed from the totality of the material before the Court is that Mr D plays a potentially significant role in supporting the mother and enjoys a good relationship with her and the children.
Whilst the Court recognises that Y is a vulnerable child, the Court is nonetheless satisfied that there is no unacceptable risk of harm to him from Mr D if Y is never left unsupervised around him. Accordingly, the Court will make the orders proposed by the Independent Children’s Lawyer, the mother and the maternal aunt.
The father’s application in relation to Mr D is dismissed.
ISSUE TWO: ORDERS IN THE BEST INTERESTS OF Y ABOUT LIVING WITH, SPENDING TIME AND COMMUNICATING WITH THE FATHER
It was to the father’s credit, and reflected a measure of insight, that he did not forcefully press his application for Y to live with him given the proximity of the final hearing and the limited scope of the decision-making process at an interim hearing. He did press for time with Y, even limited and supervised time at a supervised contact centre in the region where the mother lives in New South Wales. He also pressed for such form of communication as might be possible.
The Independent Children’s Lawyer submitted that the father should have no contact or communication with Y given that the father is a perpetrator of violence towards the children and Y has already suffered trauma arising from this. The Independent Children’s Lawyer largely relied on her Outline of Case Document filed 9 July 2024. She submitted that all three children have alleged that the father has been physically, sexually and psychologically abusive, and noted paragraph 170 of the Family Report where the writer opined “Notwithstanding the serious allegations of abuse by him, the father’s presentation in this assessment alone raised serious concerns about the degree of current and future harm to the children via any form of contact with the father” (emphasis added). She further referenced paragraph 182 of the Family Report where the writer stated that if Y returns to live with the father, then it is likely his mental health will substantially decline. The Court Child Expert was similarly of the opinion that she had serious concerns for the safety and wellbeing of Y in the father’s care (Child Impact Report, paragraph 49). The Independent Children’s Lawyer submitted that even supervised contact is an avenue that the Court should be cautious about.
The solicitor for the mother submitted that Y would be at risk if he relocated to live with the father. She stated that Y would be isolated and disconnected from the mother and his siblings. She referred to the alleged history of physical, psychological and sexual abuse by the father towards herself and the children, noting specific instances as described in the mother’s affidavit, the Family Report and the Child Impact Report. The solicitor for the mother adopted the Independent Children’s Lawyer’s submissions, agreeing that Y should spend no time and have no communication with the father.
The maternal aunt also agreed that Y should have no contact with the father, indicating that Y is often “heightened” after any contact with the father.
The father has not seen Y since he returned to the mother’s care on 16 June 2023 after a recovery order was made on 1 June 2023. An order was made on the same date that Y have no communication with the father. However the evidence suggests that Y has been in contact with the father as recently as 22 June 2024 when Y rang the father to tell him he had run away and needed to be picked up, after which the father called NSW Police to assist Y.
His last application to either live with, spend time with, or communicate with Y was dismissed by the Court on 3 April 2024. He filed a Notice of Appeal on 17 April 2024, the appeal was upheld on 1 July 2024, and it was remitted for hearing before myself on 10 July 2024.
The most recent orders on this issue were made on 1 June 2023 where it was ordered that Y live with the mother and spend no time and have no communication with the father, with a recovery order issued to implement these orders. On 6 March 2024 a s 68B order was put in place restraining the father from approaching or contacting Y directly or indirectly, or from asking or facilitating any other person contacting Y.
The father firmly rejects and denies the allegations made against him. It is perhaps understandable that he would struggle to understand why allegations that are both unproven and untested could be elevated to the point where he is denied any contact or communication with Y. He submitted that Y wants to have a relationship with him and that he can help Y through his anxiety, even if he is only permitted to have supervised contact with Y.
The focus of the Court is on promoting safety for Y until such time as the allegations can be forensically scrutinised at a final hearing. Until then, of course, the Court cannot ignore what evidence is before the Court, especially about the vulnerability of Y as is depicted in the expert evidence found in the Child Impact Report, and the Family Report. The allegations are extremely serious, and the gravity of the risk to Y in the circumstances is foremost in the Court’s mind. In assessing risk, the Court also takes into account possible concerns at a final hearing about the parenting capacity of the mother, as well as the father.
In this case, given the totality of the material before the Court, the Court must act protectively to promote the safety of Y in the relatively short period between the date of these reasons for judgment, and the final hearing. Indeed, the Court accepts the submissions of the Independent Children’s Lawyer and the mother’s solicitor, that the risk to the safety of Y is not mitigated or rendered acceptable even using the services of a supervised contact centre. The Court accepts that the risk in this context is primarily emotional and psychological, rather than physical. Nonetheless, given the vulnerable state of Y, it is still a risk in respect of which he needs to be made safe.
The Court recognises that despite there being orders in place preventing contact and communication between Y and the father, Y is a fourteen-year-old boy who has access to a mobile phone and social media, and he may take it upon himself to communicate with the father. Indeed, it appears he has already done so, as described at [56].
The father’s application in relation to Y is dismissed.
SOME CLOSING IMPRESSIONS
The Court asks the father to reflect on the following observations. During his submissions he explained to the Court that he had recently received from X some Snapchat messages that he (X) had received from Y. The father obviously thought this was important enough to tell the Court, presumably in support of his case about the risk of harm to Y in the mother’s care.
The Court believes that Snapchat is an instant messaging application, a particular feature of which is that the information transmitted is only available for a short time before becoming inaccessible.
As a result of becoming aware of these messages he became seriously concerned for the welfare of Y in the mother’s care and reported the matter to the NSW Police. The material before the Court strongly suggests that the father has engaged in a pattern of reporting his concerns about the children to authorities including the police and child welfare authorities.
The father’s explanation of the content of the message that caused him to make this report was somewhat confusing. There was a reference to a friend of Ms E and to the friend’s ex-boyfriend who apparently is associated with a gang. According to the father, Y was fearful because someone was going to “send people over” and because these people might have weapons.
When the Court pressed the father to reflect on the reliability of the information upon which he acted in making a report to the authorities, much to his credit he acknowledged that at its highest Y may have overheard a conversation between someone talking to the friend or Ms E. In fact, the Court observes, it is possible that the father’s knowledge about these events was mediated through X.
What was apparent to the Court, and hopefully will become apparent to the father with some reflection, is that he acted reflexively and made a report to authorities without undertaking any internal thought process involving reality testing, plausibility, or risk assessment. The impact on Y of the father making the report is, as yet, unknown. The police may visit the home where Y is living with the mother. The New South Wales child welfare authorities may likewise do that. It is possible, of course, that given the father’s track record of making these reports, his report will be ignored which, of course, is highly problematic if there were to be a serious, plausible risk issue. The father would do well to reflect on the impact on Y of making reports in circumstances where there may not be any, or much substance to the alleged risk.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 25 July 2024
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