Healey and McGeary - [2007] FamCA 501

FAMILY COURT OF AUSTRALIA

HEALEY & MCGEARY

[2007] FamCA 501

FAMILY LAW - CHILDREN - With whom a child shall live - With whom a child spends time - Undefended hearing - Unacceptable risk of abuse at hands of mother - Dealing with proceedings under division 12A of the Family Law Act - Change of child's name

APPLICANT:

MR HEALEY

RESPONDENT:

MS MCGEARY

INDEPENDENT CHILDREN’S LAWYER:

Ms Wylie

FILE NUMBER:

BRF

7261

2002

DATE DELIVERED:

1 May 2007

PLACE DELIVERED:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

30 April & 1 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Trezise

SOLICITOR FOR THE APPLICANT:

Temple-Smith Partners

SOLICITOR FOR THE RESPONDENT:

No appearance

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Wylie

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Legal Aid Commission

Orders

THAT all previous parenting orders with regard to the daughter JM born … October 1997(also known as JH) (“the child”) be and are hereby discharged.
THAT the father have sole parental responsibility for the child.
THAT by way of declaration this is a matter to which the presumption under s61DA of the Family Law Act 1975 does not apply
THAT the child live with the father.
THAT the child spend time with the mother on a supervised basis as follows:-
(a)    In the June 2007 school holiday period for up to four (4) occasions for a period not exceeding one (1) hour on each occasion;
(b)    Thereafter and until the child attains the age of 14 years:-
(i)half a day on two (2) weekend days per school term;
(ii)in the Easter, June and September school holiday period for not less than three (3) half day occasions for each holiday, to be wholly in the first half or second half of such holidays;
(iii)in the Christmas/summer school holiday period for not less than three (3) half day occasions in the first week of January and the first week of February;
(iv)such dates for the face to face time to be spent pursuant to this order to be reasonably nominated by the mother at least eight (8) weeks in advance and to take place at the Relationships Australia Centre in D (“the Contact Centre”) or such other supervising authority or supervisor as is agreed in writing between the parties.
(v)THAT each party shall contact the Contact Centre within seven (7) days and:-
a.arrange an appointment for assessment for suitability for supervised time;
b.attend the assessment;
c.comply with any appointments made by the Contact Centre for supervised time;
d.comply with all reasonable rules of the Contact Centre; and
e.comply with all reasonable requests and direction of the staff of the Contact Centre.
(vi)THAT if after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time, as set out in this order, then each party and the Independent Children’s Lawyer have leave to restore the matter to the list on the giving of fourteen (14) days written notice to the other party and to the Court. That this liberty to re-list the matter be available to the parties for six (6) months from the date of this order.
(vii)THAT if the Contact Centre recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days notice to the other party and to the Court.   That this liberty to re-list the matter be available to the parties for six (6) months from the date of this order.
(viii)THAT if after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the mother is to spend time with the child as set out in this order at times nominated by the Contact Centre.
(ix)THAT in the event that the Contact Centre offers supervised times only at times which are less regular or less time than specified in this order then times will be spent at the times which are offered by the Contact Centre.
(x)THAT the mother shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre or its vicinity when the time with the child is to conclude.
(xi)THAT the periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre’s services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.
(xii)THAT the parties shall contribute equally to the cost of the Contact Centre.
THAT the child shall spend such other time with the mother as is agreed in writing between the parties.
THAT the mother communicate with the child by telephone on Wednesday of each week between 5.15pm and 6.00pm (Tasmanian time) and the duration of these calls shall not be reasonably restricted by any party or unreasonably terminated by any party.
THAT the father send to the mother a package each month containing information in relation to the child including photographs, school reports and any health matters.
THAT the father inform the mother, as soon as is reasonably practicable, of any serious illness or hospitalisation of the child.
THAT each parent shall keep the other informed as to such parents’ respective residential address and telephone numbers where the parents may be contacted.
THAT in exercising parental responsibility under these orders the father is solely authorised to change the name of the child from the mother’s surname to the father’s surname and that the father is solely authorised to do all acts and execute all documents to include the name, the father’s surname, on the child’s birth certificate.
THAT the appointment of the Independent Children’s Lawyer be extended for a period of six (6) months from the date of these orders.
THAT the mother be and is hereby restrained from:-
(a) undertaking a physical examination of the child;
(b) discussing or raising with the child the concept of abuse or sexual abuse;
THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT a sealed copy of these orders be served by the Independent Children’s Lawyer upon the mother by ordinary pre-paid post at her last known residential address within fourteen (14) days from the date of these orders.
THAT leave be given to the mother to have the matter re-listed provided such application is made within a further period of twenty one (21) days after the date that the orders were forwarded to the mother and upon giving notice to the father and the Independent Children’s Lawyer.
THAT the contravention application filed 25 January 2005 be and is hereby dismissed.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: BRF 7261 of 2002

MR HEALEY

Applicant

And

MS MCGEARY

Respondent

REASONS FOR JUDGMENT

These are proceedings in which the father seeks parenting orders with regard to the daughter, JM, sometimes known as JH, who was born on … October 1997 and to whom I shall refer to in these reasons as “[the child]”.
The mother seeks orders different to that of the father, and it is a case where an Independent Children's Lawyer has been appointed and the Independent Children’s Lawyer seeks orders different from that of both the mother and the father.
This matter was dealt with under the provisions of division 12A of Part VII of the Family Law Act. The only issues were whether the child spends time with the mother and if so the amount of time the child spends with the mother and how she communicates with the mother, and whether the time or communication ought to be supervised and by whom and in what manner, and how the time of communication ought to be developed and the proposed changes to the child's surname.
There was no issue that the child should continue to live with the father and that an order ought to be made in that respect and that the father ought to have sole parental responsibility in respect of the child.
I have of course considered all of the evidence as I am obliged to do under section 61DA, and I determine that in the circumstances of this case it is entirely appropriate that the father have sole parental responsibility and it is a matter where the presumption under that provision ought not to apply.
These proceedings had been commenced by the father in November 2004 and for a variety of reasons had remained in the list and not determined until today. Part of the delay arose out of a proposed committal hearing against the mother in relation to criminal charges against her in Queensland.
What was surprising in these proceedings was that the mother, who had participated in them throughout, did not attend for the final hearing. It is worthwhile, at this stage, to set out again the circumstance which arose over yesterday and today.
The mother sent a facsimile to the Court on 23 April 2007 seeking permission to appear by telephone. The Court responded by facsimile the same day indicating that an application ought to be made in a particular form. The mother then sent an email to the Court on 27 April where she said, "I will be unable to attend and I have not had time to forward the proper form 2. I will be available by phone," and she gave the Court her telephone number, saying in the email:
“Could the court please consider this request. Otherwise I will have to request information detailing what I have to respond to the court, regards [the mother]”.
That telephone number was called in open court on 30 April 2007 on a number of occasions and did not elicit a response. Arrangements were then made for the mother to appear by video-link from the Brisbane Registry late that day and for today, provided she could be contacted.
The evidence before the Court was that telephone calls were made, emails were sent by the Independent Children's Lawyer and contact was endeavoured by the Court without success. The mother has not been able to be contacted at all, despite significant endeavours in that regard, and the documentation in that respect are exhibits “ICL1” and “ICL4”.
Notwithstanding the mother's non-attendance, I gave reasons yesterday that the trial ought to proceed, and it did.
In terms of the historical background, the mother is aged about 51; the father is aged about 40. The mother had a child of a previous relationship, a son, who was born in 1991 and passed away last year. The subject child, the daughter, was born in October 1997 and is now aged about nine and a half.
The history of the parties' cohabitation and separation is effectively set out in the reasons of His Honour Bell J in the judgment delivered on 8 January 2004. That material was placed in evidence before me.
After the parties separated allegations were made by the mother that the child had been sexually abused by the father. These led to detailed investigations, and finally a hearing before Bell J in January 2004 with His Honour delivering judgment on 8 January 2004.
His Honour made orders that the child live with the father and that the father have leave to relocate the residence of the child to Tasmania, the child having resided with the mother in Queensland prior to that time.
His Honour found that the mother has an obsession that the father had sexually abused the child. His Honour made no positive findings in relation to sexual abuse of the child by the father, or of abuse by the mother of the child, and in paragraph 28 he observes in his judgment:
“It is a mystery and regrettably unable to find one way or another, and that looms large because [Mr S] has given two reports” -
Whilst His Honour made no negative findings of abuse, what His Honour did do, was place the child in the care of her father, which is in itself indicative of the concerns that His Honour did not have in respect of the father, and perhaps concerns he did have in respect of the mother.
Sadly, that was not the end of the proceedings. On 17 November 2004 the father filed this application. The mother filed a response and a child representative was appointed. The matter progressed through 2004 and 2005 with the child being medically examined by Dr B, and a report being prepared by the Child Welfare Department, which was an exhibit before me.
The mother was subject to a charge, in Queensland, in respect of her treatment of her son and that criminal proceeding was discontinued against her in 2006. As I have said before, the son, died in August 2006.
During the time of the preparation of this matter for hearing, reports were provided by a single expert, by Dr C as to the psychiatric state of the mother, and Mr V in relation to the family dynamics.
The mother, in her amended response filed 4 December 2006, sought that orders 5 and 6 of the orders made by Bell J be enforced and that the applicant be penalised for disobeying the orders and sought face-to-face time with the child.
This is a matter where the mother did not attend on a hearing and has not had an opportunity or has chosen not to present her case, and the father has not had an opportunity to cross‑examine her.
I will be making orders to give her leave to restore the matter to the list, but I make it clear that this is not an opportunity for her to come back and have another bite at the cherry. The matter has been listed for hearing for some time. The mother was well aware of the hearing date. The only reason I am giving her the opportunity to have it relisted is in the event that there has been some catastrophic circumstance which has prevented her from attending at Court yesterday and today and not otherwise.
As I indicated in reasons I delivered yesterday, these are matters to be dealt with under division 12A of Part VII of the Family Law Act, and part of that must be to focus on the impact of these proceedings on the child, and not simply to give parties unlimited opportunities to ventilate any views that they may have. It must be done giving effect to the rules of natural justice, but at the same time having regard to the interests of the child.
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the act. The act was subject to amendment in 2006 with the passing of the Family Law Amendment Shared Parental Responsibility Act. Parts of the amendment commenced on 1 July 2006. I interpose here that when this ex temp judgment is delivered I intend to set out in detail my understanding of the law in that respect. This has been set out in a number of my judgments over the last few months.
RELEVANT LEGAL PRINCIPLES PURSUANT TO THE FAMILY LAW ACT
1.In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
2.The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[1];
[1] s 60B(1) Family Law Act 1975 (Cth).
(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 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.
3.The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
[2] s 60B(2) Family Law Act 1975 (Cth).
(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).
4.Each of the parents of a child has complete but several parental responsibility for such child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child. The section provides as follows:
[3] s61C Family Law Act 1975 (Cth).
[4] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Section 60DA           Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)         family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
5.A court must make a positive order or declaration for equal shared parental responsibility under s61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[5], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is made in interim proceedings, the Court must find that such a joint parental responsibility order would not be appropriate in the particular circumstances of that case under s61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted pursuant to a determination made under s61DA(4) of the Act.
[5] s 65DAA(1) Family Law Act 1975 (Cth).
6.The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b           to make a genuine effort to come to a joint decision about that issue.
(4)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
7. Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
8.The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s61DA(1) unless sub-section (2) is applicable. Section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[6]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
[6] Both “abuse” and “family violence” are defined in s4 Family Law Act 1975 (Cth).
9.If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[7], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[8]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s60CC of the Act.
[7] s 61DA(3) Family Law Act 1975 (Cth).
[8] s 61DA(4) Family Law Act 1975 (Cth).
10.A third step would arise if there is a determination that the presumption does not apply under s61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that the presumption does not apply almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
11.As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[9]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
[9] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
12.The amendments go on to provide in s60CB that the best interests of the child is the paramount consideration.
13.How the court determines what is in the best interests of a child is set out under s60CC of the Act.
14.Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
15.How does a court deal with this new “two tier list of factors” set out under s60CC in determining the best interest of a child?
16.It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
17.The approach to be adopted by a court is structured.
18.The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
19.The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
20.To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
21.Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
22.In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations was considered by Bennett J in a recent unreported decision[10] where her Honour said;
[10] G and C [2006] FamCA 994.

The primary considerations

65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(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.
66This is a case where both of the primary considerations are relevant.

The benefit of a meaningful relationship – as a primary consideration.
67The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[11].
[11] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
70The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;

71     The arguments supporting the second possible interpretation include;
(a)     Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)      The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.

71My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [the son] into the future.

I agree with Her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[12]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.
Similarly, I will set out the law regarding unacceptable risk, which I have stated on a number of previous occasions, which deals with the High Court's comments in M and the principles that the Court ought to follow in that regard. I will also include that in my reasons.
Unacceptable risk
“Efforts to define which would justify a Court in denying a parent access to a child have resulted in a variety of formulations …. this imposing array indicates that the Courts are striving for a greater degree of definition that the subject is capable of yielding. … in devising these tests the Courts have endeavoured, in their efforts to protect the child’s paramount interest, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child of parental access. To achieve a proper balance, the test is best expressed by saying that a Court would not grant custody or access to a parent if that custody or access will expose the child to an unacceptable risk of abuse”: M –v- M (1998) 166 CLR 69 at 78; (1988) FLC 91-979 at 77081.
[12] Ibid paragraph 68.
In a recent paper[13]retired Justice Fogarty observes:
“The cases which attract its [unacceptable risk] potential application are amongst the most important and difficult to confront Courts. Importantly because they oblige the Courts to protect children against the risks in the future which will impact on them as children and as adults and protect the family relationships. Difficult because the material upon which those decisions are made is often hard to ascertain with any certainty and requires a clear understanding in application the principles which govern them.
In any case about a child, and particularly if an issue of risk is involved, the ultimate and definitive criteria is the best interest of that child. This is both the starting point and finishing point. To stress the right of the child (or parent) to access [contact] as a generality as a starting point says nothing useful about the individual case anymore than it is to stress the general right of the child to protection from abuse or other risks”.
[13] J Fogarty – “Unacceptable Risk – revisited” – unpublished paper November 2005
The High Court in M summarised the argument of the appellant as follows:
“The appellant submits that, in this case as in any cases of custody or access involving allegation of sexual abuse, two issues arise. The first is whether the parent has sexually abused the child: the second is whether there is a risk, if custody or access be granted of sexual abuse occurring. Accordingly to the appellant the first issue is to be determined according to the civil standard of proof, on the balance of probabilities the second is answered by reference to the test: is there a real and substantial risk of the child being sexually abused? To these propositions the appellant adds to others: first, that the primary Judge is under a duty to determine the first issue: and, secondly that, if the complainant fails in the first issue, then that is the end of the matter because of rejection of the complaint necessarily entails a negative answer with the second issue”.
The High Court dealt with that issue and rejected it in the following way:
“The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the Court. In proceedings under PtVII of the Act in relation to a child, the Court is enjoined to “regard the welfare of the child as the paramount consideration”: S.60D. The paramountcy of this consideration in proceedings for custody or access is preserved by S.64(1). The consequences that the ultimate and paramount issues to be decided for proceedings for custody or access to a child, is whether the making of the orders sought is in the interests of the child. The fact that proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps decisive, impact on the resolution of that issue”.
The Family Court has no duty to resolve the disputed allegations of sexual abuse as would be a Court exercising criminal jurisdiction. Retired Justice Fogarty in his paper says:-
“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court where it called upon to decide what is in the best interests of the child”.
The High Court re-emphasised this in the next paragraph when it said that there would be some cases where the Court is able to come to a positive conclusion that the allegation is well founded and in all but the most extraordinary cases, that finding will have a decisive impact on the orders. It referred to cases where the Court “had no hesitation in rejecting the allegations as groundless”, and finally that “in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place”
The Court went on to suggest the following:
“There are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has taken place unless it is impelled by the particular circumstance of case to do so”.
For a finding that there is an unacceptable risk the degree of the risk and concern forming that conclusion must be clearly stated.
The finding of unacceptable risk (without further explanation of the degree of risk and the basis of that conclusion) would be ambiguous and the desire not to be too dogmatic may come at too higher price.
“Of course, if the case is not based wholly or in part allegations of past sexual abuse of the particular child but on other factors (of which the most obvious is abuse of another child and/or other sexually inappropriate behaviour) the first step would not be relevant, and in relation to the particular child may be a case of unacceptable risk. The only qualification of that is that if a finding of sexual abuse of another child is to be made, it would need to be established in accordance with the Briginshaw standard. If the evidence in relation to that falls short of that standard it may still constitute an element of a decision of unacceptable risk – see later discussions. In any event the identification of the degree of risk is very important in these cases in order to determine what protective measures need to be taken. Where sexual abuse is clear on the evidence, an avoidance of that finding may create uncertainties and not fully explain why the particular orders were made. Where a Court is able to come to a clear conclusion that there has been no sexual abuse and that no unacceptable risk exists, it would ordinarily say so, both as a matter of fairness and because these conclusions may have wider implications in the orders to be made by the Court …. Finally it needs to be remembered that the High Court in M was dealing with sex abuse cases which involve a particular stigma. It is now well recognised that the concept of unacceptable risk extends across a wide range of risks which may impinge on the welfare of the child. In some of those cases the evidence will be clearer, and the findings, positive or negative, more readily available. It may create an unsatisfactory position if the views of the High Court in M necessarily govern those cases as well. Returning to the judgment in M the High Court determined that the appropriate description of the test to be applied was “unacceptable risk” …
In its last paragraph the Court summarised the decision in that particular case in the following passage which is important not only to the case but generally. It reads:
“in the present case Gun J was not satisfied the husband had not sexually abused the child. We take that to mean that his Honour was not satisfied according to the civil onus. On this footing, his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband was awarded custody or access”
The Court was apparently able to equate the trial Judge’s conclusion about “some lingering doubt” to this test.
Over the years concerns have been expressed about the apparent endorsement by the High Court in both M and B of “some lingering doubt” as sufficient. In isolation this may be a justified concern because it may suggest a very low threshold of satisfaction of unacceptable risk. This is compounded in those cases because, for other reasons, no access was ordered. In other circumstances orders for supervised access may have been expected. Both Judges may have been expressing themselves in a conservative way; the facts of each may have justified a higher identification of the level of risk. Both the Full Court and the High Court equated that phrase with a view that “as a matter or practical reality … there existed a risk that the child may be sexually abused and that her welfare may thereby be endangered.
When the test of unacceptable risk was first propounded there were some criticisms – that it was circular, what was meant by “acceptable” etc., I think that those criticisms were misplaced, the test expresses a fluctuation of this concept as well as can be.
There is always a risk that this may become a phrase carved in stone with some mystical but obscure meaning, an incantation which can be waved over a case and used without further justification or explanation. However, my reading of the first instant case available to me does not support this concern.
The High Court itself seems to have no reservations about the utility of that phrase and its meaning: see Fardon –v Welford above. In particular the Chief Justice said:
“It was argued that the test, posed by S13(2) (of the Queensland Act) of an “unacceptable risk that a prisoner will commit a serious sexual offence” is devoid of practical content. On the contrary, the standard of “unacceptable risk” was referred to by this Court in M & M in the context of the magnitude of a risk which would justify a Court in denying parent access to child. The Court warned against “striving for a greater degree of definition than the subject is capable of yielding”. The phrase is used in the Bail Act 1980 (Q), which provides that Courts may deny bail where there is an unacceptable risk that the offender will fail to appear (S16). It is not devoid of content, and its use does not warrant a conclusion that the decision making process is a meaningless charade”.
I have noticed from my reading of a number of first instance Judgments that reliance is of placed upon the following summary in B & B (1993) FLC 92-357 at 79788:
“The unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the child in having access with the parent outweighs the possible benefits to them from that access”.
It is, however, important to note that in that case the court was referring to unsupervised access. The Court went on to say that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”. See also W&W (2005), above at paras 98 and 99

Mr Trezise, in his submissions referred me to the decision of B v B (1993 ) FLC 92-357 where the Full Court observed in that page:
In our opinion a trial judge who has made a finding that unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma in the widest sense that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an acceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the court's obligation to protect the children from such harm.
He went on to make submissions in respect of supervision. He said that if supervision is to be in place for a long term, then the Court should seriously contemplate whether the child should spend time with the parent.
The third area of law on which I must have regard is that law in respect of the proposed name change. The law was outlined in Chapman v Palmer (1978) FLC 90-510, and the matters for consideration were said to be the welfare of the child as a paramount consideration, short and long-term effects of the child, any embarrassment to the child, and any confusion of identity the effect a change in name may have with the parent whose name the child bore in the marriage.
Additional factors were identified in Beach v Stemmler (1979) FLC 90-692, where the Court said additional factors were the advantages, both short and long-term of the change, contact the father has had with the child, degree of identification with the father and the mother, degree of identification with a new child and the father's wishes.
In Fewkes v McCarthy (1994) FLC, Warnick J identified that there was only one principle, the welfare of the child, as the paramount consideration. In the Full Court Kay, Finn, Holden JJ in Flanagon v Handcock (2001) FLC 93‑074 also considered the issue of whether or not the best interests applied to section 68B. Kay and Holden in a separate judgment stated that:
“If paramountcy principle was not decisive, it was certainly relevant and needed to be given consideration” -
Finn J held that:
“Under section 68B the court may grant an injunction it considers appropriate to the welfare of the child, therefore, the welfare of a child is a paramount consideration or the essential test”.
The evidence before me was initially that of the father and the child’s paternal grandmother (“PM”) and I accept both to be witnesses of honesty. They were not shaken in cross‑examination by the Independent Children's Lawyer, however, they were not cross‑examined by or on behalf of the mother. The father's evidence is set out in his affidavit of 7 December 2006 and includes details of the child’s connection with the father’s family and her state when she arrived with them and the impact of the mother's visits upon her.
To the credit of the father and PM, the child has continued communication with the mother since she has come to Tasmania, and I was particularly impressed by PM’s evidence when the mother turned up unannounced and PM dealt with that in a very sensible, sensitive and child-centred manner.

The father and PM have both given evidence of disclosures, made by the child, in respect of the events of 2003, which gave rise to a complaint that the father had sexually assaulted the child. A tear was found, and the mother asserted that the tear arose out of actions by the father. The evidence before me is that the child has disclosed initially to her paternal grandmother, then to her father and then to the family consultant, the psychologist expert witness, Mr V, the tear was that caused by the mother.
Mr V was cross‑examined in relation to that evidence and the disclosure made to him. At some levels the cross‑examination put him in a difficult situation. The determination as to what findings to be made should be the Court’s determinations and not that of a psychologist. I find that the child did make those disclosures. I am not able to say whether that arose as a consequence of her memory of an event, or a reconstruction of a memory bearing in mind her age, the circumstances that she went through, and her general condition at the time of handover to the father after the hearing before Bell J.
Mr V provided three reports. The first was dated 31 August 2004. I have taken into account all of that material, but I will highlight some issues. The first of which is paragraph 63 where the child was asked to write her name beside each person in a drawing and she put her name as "[JH]." She knows herself, on the evidence, and I find, as JH and does from time to time use the word "[the mother’s surname]". I find this in some respects reflects her desire or need to maintain a relationship with her mother.
Mr V in his first report, which is a very detailed and meticulous report, commented at paragraph 99 that:
“Further assessment of [the child] should be confined to areas where [the child] is able to accept without difficulty”.
Mr V seemed to take a step back from this evidence in cross‑examination, although, I find that the constant investigation of the child is not in her best interests.
From the material, including that material from Mr V and material from Dr C (to which I will refer to later, I am satisfied that the mother has fixed views that the child was sexually abused by her father and that she has not shown any ability to change those views.
Mr V in his summary at paragraph 102 said:
“[The child] is a girl of seven years and nine months who is extremely intellectually delayed and suffers from expressive language disorder. Her ability to express herself is at a level of a four-year old, whereas her understanding of environment is around five or six-year level. [The child] is a happy little girl who has thrived while she has been in the care of her paternal family over the last 18 months. Over this time [the child] has not displayed any signs she is being sexually abused and there are no reasons to believe this may be the case. The assessment has identified only one area of emotional concern relating to [the child], and this has been a pattern of disturbed behaviour in relation to mention of her mother. The behaviours have been observed by independent adults outside of the paternal family, as well as members of the family. [The child] appears to be displaying more neutral reactions to mention of her mother as time goes on. She has presented as very secure and happy in her paternal family setting”.
In his second report dated October 2006, Mr V observed in paragraph 20:
“The primary finding is that [the child’s] circumstances in relation to placement and environment remains the same as last year, and that in this stable and nurturing setting she appears to have made excellent progress in a number of areas. The most dramatic progress appears to be in the area of personal confidence and self-esteem which was commented on strongly both by the school staff and parenting figures. The gains in this area are obviously translating to a common perception of a happy child who is enjoying herself and is keen to do the very best she can for herself”.
He commented on her academic achievements in paragraph 21, and in paragraph 22 discussed the child’s good emotional wellbeing and noted that she continues to develop positively:
“As I have said earlier, I find that [the child] has thrived and developed well in the care of her father and her grandparents”.
He stated in paragraph 22 that:
“[The child] continues to have regular phone contact with the mother which is generally acceptable for her; however, there are reports of comments that she's made after some contacts have indicated [the child’s] unhappiness with things her mother has said” -
Mr V then made further comments about the mother and about the relationship.
He said in conclusion at paragraph 24:
“This review supports the findings of the assessment carried out last year and confirms [the child] continues to thrive in her paternal family environment. Excellent gains have been noted over the last year in many areas, notably in her self-esteem, confidence and happiness”.
The child was subjected to yet another report, an investigation in March 2007. I hope this may well be the last one in this area. In this report the child, in paragraph 15, made the disclosures that I have referred to earlier. Mr V, in paragraph 24 was asked an opinion in relation to future contact between the child and her mother. For the reasons set out in that report he believes that the child wants her time with her mother to be supervised, but that it would be in the child’s best interest for her to have some time with her mother. He concluded:
“This assessment confirms that [the child] continues to make positive gains and has settled into the paternal family environment, and she maintains a desire to experience a positive relationship with her mother under conditions of perceived safety. If [the mother] is to accept and abide by the requirements of court directed controlled contact, and that seeks to provide [the child] with a sense of safety, then it is possible for [the child] to have a more positive and trusting relationship with her mother in the future”.
Reports were provided by Dr C, who was not called for cross‑examination, but was available (by way of a short adjournment) had that been required. Dr C in his report was quite puzzled with regard to the mother. He observed on page 14 in the second paragraph:
“In my view, this matter is, to say the least, complex. [The mother] appears to have been psychiatrically assessed only on one previous occasion by [Dr M]. She noted in the body of her report that "she" ([the mother]) has become convinced that [the child] has been sexually abused by [the father], but [Dr M] comes to the conclusion that there does not appear to be sufficient grounds to come to this conclusion. [Dr M] goes on to note that [the mother] demonstrates a somewhat unusual personality, but could not conclude she was suffering from a frank psychiatric illness”
Dr C observed:
“In answer to the question that you have specifically raised, this lady does not clearly suffer from an axis 1 psychiatric disorder. She does not have any schizophrenia, major depressive generalised anxiety disorder, or indeed any readily identifiable psychiatric illness. She does, however, present with a significant personality difficulty in the dependence spectrum.
The question of Munchhausen by proxy has been raised previously and, in my view, there are significant concerns about the lady's ongoing behaviour and I would be keen to know the nature of the evidence that is currently before the court”.
I am of the view that it is unlikely this lady could adequately care for [the child] and look after her emotional, physical and intellectual needs, particularly in relation to the relationship with the father given [the mother’s] absolute certainty about the abuse issues”.
I accept that evidence of Dr C. He provided an updated report in November 2006 and did not alter his view. He said in that report:
“What in my view emerges through reading yet further documentation about this lady is her complete inability to understand anyone else's viewpoint, her inability to follow any form of professional advice for any length of time, and a considerable intrusiveness, indeed, difficulty that she has presented for the multiple staff who have been involved in the care of particularly [her son]”.
This case, as with many of these Magellan type cases, brings into sharp focus the matters set out in section 60CC(2)(a) and (b). The first, "The benefit of the child having a meaningful relationship with both the parents," and (b), "The need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse in effect, or family violence."
On one hand there is a child who at a number of levels shows a desire to have a relationship with her mother. On the other hand there is the mother who presents a risk to this child. Mr Trezise said the risks are the perpetuation of the allegations of abuse against the father, and secondly the risk of physical harm.
The father said that the evidence is now so strong, by way of the disclosures, by the child, to the paternal grandmother, the father, and Mr V, that I should make a positive finding that the child was damaged by the mother in those circumstances.
Taking all of the facts into account and bearing in mind the approach directed by the High Court in relation to matters such as this, I do not make a positive finding. Although, I do make a finding of unacceptable risk by the mother to the child if left in the unsupervised care of the mother, such risk being the allegation that the father sexually abused the child and a risk of harm, to the child, by the mother to validate her concerns . But in either event, I have to consider the impact of the risk that is presented to the child by the mother. There is a risk that the mother had caused physical harm to the child to support what she knew to be a lie, or at best the risk of abuse was that she endeavoured to cause harm, to the child, so that she could protect the child from what she perceived as being abuse by the father.
A question is whether that finding should preclude the child from having face-to-face supervised contact with the mother. In applying the law it is necessary to read s60CC(2)(a) and s60CC(2)(b) together. They raise two issues: one is the importance of a meaningful relationship and the benefits of a meaningful relationship. It seems to me unless there is some face-to-face time that this child spends with the mother, there can be no real meaningful relationship between the child and the mother. So I have had regard to those matters in terms of section 60CC(2)(a)(b). I also accept that the mother is not in a position, at the present time, to care for the child on an unsupervised basis.
I have had regard to the views expressed by the child, and I find that the child does have a desire to have a relationship with the mother. This is shown in the continuation of the telephone time that she has spent with her mother and perhaps her flirting with the use of the hyphenated surname of the mother-father rather than simply using the surname of the father. I am satisfied that she has a view that she ought to have some face-to-face time with the mother.
I am also of a view that she has a strong desire to be identified with the father’s family uses the surname "[of the father]" rather than "[the mother’s]", and that appears to have been [the child’s] approach since 2005.
In regard to the nature of the relationship between the child and each of the parties and other persons. I find that PM is the child’s primary carer and she has been such carer since the child returned to Tasmania. I find that the child has thrived under PM’s care with the assistance of the father.
I find that the child was not thriving in the care of the mother and that the relationship between the child and the mother prior to the change of residence was not a good relationship and was, in many ways, a destructive relationship. However, the mother has maintained contact with the child.
The child has a close relationship with the father and that circumstance was not brought into issue by the mother, to her credit.
No matter what order I make, I am satisfied that both the father and PM have the willingness and ability to facilitate Court orders. They have done so in the past and I refer to a particular incident with PM earlier in these reasons where the visit between the mother and the child was facilitated.
I find that the mother is not willing to facilitate and encourage a relationship between the child and her father.
As to the time that the child spends with the mother, that is in a supervised sense. It is not likely to have any significant effect on the child’s physical circumstances. The argument is that it will cause the child to become upset and worried and be fearful. From the evidence given by paternal grandmother, who adopts a very sensible and logical approach, I find that both the paternal grandmother and the father will be able to ensure that the child is calm and able to see the mother at the contact centre without fear, without a concern that she will be returning to Queensland. I request that the Independent Children's Lawyer inform the child of my findings in that regard.
In terms of the practical difficulty and expense of the child spending time with her mother in a supervised way, there will be practical difficulties. I intend that those supervised orders will only apply until the child attains the age of 14 years. At that stage it would almost be impossible for supervised time to continue in a meaningful way. The child will either make up her mind to see her mother or choose not to see her mother. Hopefully, that later course is not the one the child adopts, but at that age the child will be able to take care of herself and protect herself with the support of the father’s family.
Any orders that I make will be subject to the availability of proper supervision as the child should not be left in the mother’s unsupervised care. This bearing in mind her age and the history of what has gone in the past.
In terms of the capacity of each of the child's parents and PM, I have made comments about those earlier.
In terms of the attitude to the child and responsibility of parenthood, it is demonstrated by each of the parents, again I make no criticism of the father or PM. I repeat the concerns I have with regard to the mother.
As to family violence, the allegations have been dealt with in terms of abuse and they are of a type which has made this decision of mine a fairly difficult decision. It is a difficult balance in this decision as to whether this child sees her mother face to face or whether she does not. Had I determined the child did not see her mother that would have caused her some harm, and in seeing the mother there is some risk of some harm. On the evidence before me I find the best interest of the child is to see her mother but for the time being such time will be on a supervised basis.
The other issue is whether this determination will lead to more or less litigation. I have concerns that this child has been the subject of litigation for more than half of her life. Whatever orders I make I am concerned that these issues will come back to this court or another court exercising jurisdiction under the Family Law Act.
As the child grows older and as her maturity changes and as she deals with the difficulties which she has been managing in the last few years, her needs and the time she spends with both parents and how she communicates with parents will change.
It was put to me by the independent children's lawyer that I ought to make interim orders. I would be concerned that if I did that, those orders would simply invite another application to this court within a short period of time and would find these parties sitting the curt arguing about these same issues.
I will be making final orders with regard to the time that the child spends with her mother. I will not be making the times with the regularity as suggested by the independent children's lawyer. I will be making such time less regular, but the order will give opportunities to the parents, to have some contact and telephone discussions to see whether that could be increased or changed.
I have had regard to the matters under section 60CC(4) with respect to the extent which each parent has fulfilled or failed to fulfil their responsibilities as a parent, and also section 60CC(4)(a) with regard to the events that have occurred since separation.
There was some debate as to the number of telephone calls per week, and reflecting on the need for the child to have a regular and constant and regulated environment and I find that it would be in her best interests for the one call per week arrangement to remain in place.
Having regard to all of the facts and circumstances and having considered all of the matters which I am obliged to consider under section 60CC and section 60DA I make the orders.

I certify that the preceding seventy eight paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate:

Date: 1 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HEALEY & MCGEARY