Ibbot and Baumer (No 2) - [2019] FamCA 468

FAMILY COURT OF AUSTRALIA

IBBOT & BAUMER (NO. 2)

[2019] FamCA 468

FAMILY LAW – CHILDREN – Parenting – Where the parties have two children who are in the care of the mother and have not seen the father in a number of months – Where domestic violence and drug and alcohol use was a feature of the relationship between the parties on the part of both the mother and the father – Where there are allegations of sexual abuse by the father of the two children – Where it is not found that the sexual abuse did actually occur, but it is found that there is an unacceptable risk of harm occurring to the children in the father’s unsupervised care – Where the children are to live with the mother and the mother is to have sole parental responsibility for the long term welfare, care and development of the children, with provision for the father’s response to be sought before any such decision is made – Where the father is to spend supervised time with the children – Where the father’s alcohol consumption and how this effects his ability to care for the children is the source of dispute between the parties – Where the father is Ordered to engage in treatment to reduce his alcohol consumption.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshawv Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69; [1988] HCA 68
N & S & the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

Mahendra, B, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT:

Mr Ibbot

RESPONDENT:

Ms Baumer

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox

FILE NUMBER:

LEC

310

2016

DATE DELIVERED:

17 July 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

14, 15 and 16 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Boys

MPB Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

O'Reilly & Sochacki Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

That all previous parenting Orders be discharged.
That the children, X born … 2010 and Y born … 2013 (“the children”), shall live with the Mother.
That the Mother shall have sole parental responsibility for the children’s long term welfare care and development, PROVIDED THAT:
(a)prior to making a decision for either child pertaining to his/their long term welfare the Mother shall email the Father setting out the decision she wishes to make and the reasons for the decision and request the Father's response within 48 hours of the date of the email;
(b)the Father shall respond to the Mother's email within 48 hours of receiving the Mother's email setting out his agreement or providing an alternate proposal and the reasons for his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ibbot and Baumer (No 2)

Details

AGLC: Ibbot and Baumer (No 2) [2019] FamCA 468
Case: [2019] FamCA 468
Decision Date: 17 July 2019

CaseChat Overview and Summary

This case concerned parenting orders for two children, X and Y, born in 2010 and 2013 respectively. The dispute involved allegations of sexual abuse and alcohol use by the Father. The matter was heard by Forrest J in the Family Court of Australia.

The court was required to determine the best interests of the children in light of the allegations and the parents' circumstances. Specifically, the court had to decide on the living arrangements for the children, the allocation of parental responsibility, the extent and nature of the Father's time with the children, and the conditions under which such time would occur. The court also had to consider the Father's engagement with treatment for alcohol use and psychological counselling, and the implications of any findings regarding sexual abuse allegations.

Forrest J applied the paramount consideration of the children's best interests, as mandated by section 60CA of the *Family Law Act 1975* (Cth). The court referenced the High Court's decision in *M v M*, which established that the resolution of sexual abuse allegations is subservient to the determination of the child's best interests, although findings on such allegations can have a decisive impact. The court also noted the *Briginshaw* standard of proof for serious allegations, which requires reasonable satisfaction based on evidence that is not inexact or indefinite. The orders reflect a carefully balanced approach, prioritising the children's safety and well-being while allowing for supervised contact and requiring the Father to undertake significant therapeutic interventions.

The court ordered the discharge of all previous parenting orders. The children were to live with the Mother, who was granted sole parental responsibility for their long-term welfare, care, and development, subject to specific consultation requirements with the Father. The Father's time with the children was to be supervised and limited, with strict conditions regarding his conduct and engagement in treatment for alcohol use and psychological counselling. The court also made orders regarding communication, attendance at sporting events, and the children's understanding of protective behaviours. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all previous parenting Orders be discharged.

That the children, X born … 2010 and Y born … 2013 (“the children”), shall live with the Mother.

That the Mother shall have sole parental responsibility for the children’s long term welfare care and development, PROVIDED THAT:

(a) prior to making a decision for either child pertaining to his/their long term welfare the Mother shall email the Father setting out the decision she wishes to make and the reasons for the decision and request the Father's response within 48 hours of the date of the email;

(b) the Father shall respond to the Mother's email within 48 hours of receiving the Mother's email setting out his agreement or providing an alternate proposal and the reasons for his proposal;

(c) the Mother shall thereafter give reasonable consideration to the Father’s proposal but if no agreement can be reached, the Mother shall make the final decision.

That the Mother shall advise the Father by way of email should either of the children require any emergency medical treatment.

That the children shall spend time with the Father at all times as may be agreed between the Mother and the Father, but failing agreement:

(a) supervised for a maximum of two (2) hours each alternate Saturday or on such other day as can be facilitated by a contact centre as nominated by the Father between Town B and Suburb C with the Father to pay the cost of such supervision;

(b) the Father shall complete all intake procedures with the contact centre and confirm with the Mother by way of email when he has completed the necessary procedures;

(c) the Mother shall complete her intake procedures with the contact centre within two (2) business days of receiving notice from the Father as provided for in Order 5(b);

(d) the Father shall confirm with the Mother by way of email by 6.00 pm (NSW time) on the evening before the scheduled visit at the contact centre that he will be attending the next day;

(e) telephone communication each Wednesday between 6.00 pm and 6.30 pm (NSW time) with the Mother to initiate the call to the Father.

That the Father be permitted to attend the children’s sports games (and any other sporting activities) and the Mother shall email the Father with a schedule of the children’s home games for the season within two (2) days of the schedule being released to her, but if there is no schedule released at the start of the season, the Mother shall email the Father with the fixture details and details of any other sporting events the boys are involved in, within a day of those fixture details becoming known to her.

That the Father's attendance as provided for in Order 6 herein is subject to and conditional upon:

(a) the Father not being under the influence of any amount of alcohol during any such attendance; and

(b) the Father not attempting to approach or engage with the Mother at any time during any such attendance.

That the Father shall engage in treatment as recommended by Dr A to reduce his alcohol use to a low risk level of intake and engage in psychological counselling to assist him in trying to change his future behaviors by obtaining a referral from his general practitioner to K SERVICE or an alcohol and drug addiction counsellor for a period of at least six (6) weeks.

That the Father shall provide the Mother with a report upon completion of his attendance as provided for in Order 8 confirming:

(a) his attendance;

(b) his completion of the program.

10.

That pursuant to s 121 of the Family Law Act 1975 (Cth) leave be granted to the Father to enable him to provide a copy of Dr A’s assessment to K SERVICE or a drug and alcohol addiction counsellor.

11.

That within three (3) months of the date of commencing counselling as referred to in Order 8, the Father shall provide a CDT test to the Mother.

12.

That three (3) months after providing the first CDT test to the Mother as required, the father shall provide the Mother with a further CDT test.

13.

That upon the Father providing CDT testing which reflects a continued reduction in his alcohol consumption to low risk levels, the parties attend G Group with a view to entering into negotiations for further parenting orders for the children.

14.

That the Mother shall arrange for the children to attend H Group, or such other organization as recommended by FaCS with regard to the children gaining an understanding of protective behaviors with regard to sexual abuse.

15.

That neither parent shall denigrate the other to or in the presence or hearing of the children.

16.

That the Mother and the Father shall keep each other apprised of their current email address and contact telephone numbers and advise of any change within 48 hours of such change.

17.

That these Orders be sufficient authority for the Father to obtain copies of the children's school progress reports and school photographs at his expense.

18.

That the Independent Children’s Lawyer be discharged.

19.

That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

NOTATION:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In M v M (1988) 166 CLR 69; [1988] HCA 68 (“M v M”), the High Court also relevantly observed[2] that:…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…(Emphasis added) [2] At 76. The Judges of the High Court said:[3]…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the 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 a decisive, impact on the resolution of that issue.[3] At 75. The High Court Judges’ reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting Orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Act). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC) when making such parenting Orders the Court thinks proper. As is well known, each year this Court hears large numbers of parenting cases involving allegations of sexual abuse. In the eight and a half years I have been a Judge of this Court, I have heard and determined very many. Despite that, in deciding each individual such case, it is always still worth reflecting upon the seriousness of the central issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N & S & the Separate Representative (1996) FLC 92-655 at 82,709; [1995] FamCA 139 (“N & S”):It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating. I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was, 14 years ago, in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 (“W & W”). However, I hasten to observe that the High Court Judges went on in their judgment in M v M to expressly say[4] the following:In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw… There Dixon J. said:“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[[5]](Citations omitted)[4] At 76-77.[5] What became known as the “Briginshaw test”, following that 1938 High Court decision of Briginshawv Briginshaw (1938) 60 CLR 336; [1938] HCA 34, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:

Ratio Decidendi

Legal Principle Established

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