JEFFORD & JEFFORD

[2020] FamCA 990

FAMILY COURT OF AUSTRALIA

JEFFORD & JEFFORD [2020] FamCA 990

FAMILY LAW – PARENTING – Interim Orders – Where the parties agree for the children to continue to live with the mother – Where the children have spent no time with the father for five months and have not communicated with him for three months – Where the older child witnessed a sexual act by the father and has been affected by such – Where the mother alleges the father poses an unacceptable risk of harm to both children and proposes no time with the father or formal supervision – Where the father seeks informal supervised time – Where, if the children continue to spend no time with the father they will become estranged from him – Where the Court must balance a loss of relationship between the father and children and the risk of the children being exposed to sexual acts by the father – Where supervised time provides the most minimal risk and not at an unacceptable level – Where supervision by the paternal grandmother provides adequate protection – Ordered children spend supervised time with the father on one occasion per week, alternating between formal and informal supervision.

FAMILY LAW – PARENTING – Parental Responsibility – Section 61DA(3) – Where it is not appropriate to make an allocation – Ordered no allocation of parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 61DA

M & M (1988) 166 CLR 69

APPLICANT: Ms Jefford

RESPONDENT: Mr Jefford

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1398 of 2020

DATE DELIVERED: 4 November 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 30 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tregilgas

SOLICITOR FOR THE APPLICANT: Ms Kekeff

COUNSEL FOR THE RESPONDENT: Mr Bithrey

SOLICITOR FOR THE RESPONDENT: Ms Olsen

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED THAT

1. The children X born … 2017 and Y born … 2019 live with the mother.

PENDING FURTHER ORDER, IT IS ORDERED

1. That the children spend time with the father on a supervised basis on Wednesdays as follows:

   2.1In the month of November 2020:

   2.1.1On any two Wednesdays nominated by the father in consultation with the paternal grandmother with regard to her availability.

2.1.2Thereafter, on each alternate Wednesday commencing Wednesday 9 December 2020.

Such times to be supervised by the paternal grandmother Carmel Thomson and to commence at 10.00 am and to conclude at 4.00 pm.

2.2Each other Wednesday in November 2020 and alternate Wednesdays thereafter, for a period of three hours supervised by Ms B of C Contact Service or her nominee (“the supervisor”) at times as determined by the supervisor.

2.3On Christmas Eve 2020 from 10.00 am to 4.00 pm.

1. That the mother, or her nominee [which may include the babysitter employed by the mother and may not include Ms D and/or Mr E], shall deliver the children to and collect the children from the father in the presence of the paternal grandmother or to the paternal grandmother directly at Suburb F McDonalds unless otherwise agreed.

2. That the father communicate with the children by FaceTime once per week and failing agreement otherwise at any time between 7.00 am – 8.00 am on Sunday with the father to initiate the call and the mother to assist the children to receive the call NOTING that the children are very young and may not be able to participate for more than short periods of minutes.

3. For the purpose of Order 2.2 hereof, the parties shall:

   5.1Do all acts and things necessary to contact Ms B at C Contact Service to register for supervised visits and provide all details required by C Contact Service;

   5.2Attend at and deliver the children to, and collect the children from, the place allocated by C Contact Service and at the time stipulated by the supervisor on each occasion;

5.3Each pay one half of any fee charged by the supervisor; and

5.4It is noted that any time that takes place pursuant to Order 2.1.2 is permitted to occur at the father’s home.

1. Without admissions the father is restrained from approaching the children’s day care centre and from collecting the children from day care.

2. Without admissions the father is restrained from contacting or communicating with the mother except as may be necessary to communicate arrangements in respect of the implementation of these orders, or any emergency relevant to those arrangements for the children.

3. The parties are to communicate with each other by way of a parenting app which the mother shall nominate, and in doing so:

   8.1The mother is to inform the father of any medical attendances of the children and authorise any medical or allied health professional who should treat the children to liaise with the father;

   8.2The mother is to inform the father of any day care or preschool enrolment of either of the children; and

8.3The mother is to authorise any day care or preschool at which either of the children is enrolled to provide the father with all information that parents are ordinarily entitled to receive.

1. The mother is at liberty to apply for renewal of passports for the children, X born … 2017 and Y born … 2019 without the written consent of the father and may keep the passports within her possession.

2. Each party is restrained from international travel with the children unless there is prior written consent of the non-travelling parent or order of this Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jefford & Jefford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC 1398 OF 2020

MS JEFFORD

Applicant

And

MR JEFFORD

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

ORAL REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders by the parents of two subject children, X, aged three and a half, and Y, aged 15 months.

2. The matter was before the Court in a duty list on 23 October 2020. An adjournment application by the mother to deal with late-filed material by the father was opposed on that day. The matter was set down for a short hearing on 30 October 2020 at 9.15 am.

3. The two children have not spent time with the father for five months. There has been no FaceTime communication with the father for the past three months.

The proposal of the mother, pending further order

1. The mother proposes:

   (1)That the children live with her, and that she have sole parental responsibility;

   (2)That there be no time for the children with the father, but if the Court considered that the children should spend time with him that it should be supervised by C Contact Service and be for three hours per week;

   (3)A restraint on the father approaching and/or collecting the children from their day care centre;

   (4)That the mother be at liberty to renew passports for the children without reference to the father;

   (5)That the mother be at liberty to travel overseas with the children on two occasions per year, subject to the provision of relevant information to the father;

   (6)That the father be restrained from international travel with the children;

   (7)That there be a restraint on the father contacting or communicating with the mother except in relation to arrangements in accordance with Court orders;

   (8)The parties to communicate by a parenting app nominated by the mother.

The proposal of the father, pending further order

1. The father proposes:

   (1)      That the children live with the mother;

   (2)That the children spend time and communicate with him each alternate Wednesday from 10.00 am till 4.00 pm supervised by the paternal grandmother, each other Wednesday for three hours supervised by C Contact Service, on Christmas Day from 10.00 am till 4.00 pm supervised by the paternal grandmother and on FaceTime, twice per week between 7.00 am and 8.00 am;

   (3)Changeovers to take place at McDonald's Suburb F and/or as C Contact Service arranged;

   (4)That the mother be restrained from using Ms D and Mr E for changeovers;

   (5)That the father agreed to be restrained from attending the preschool or communicating with the mother, and also agreed to communicating by parenting app. The father asked to be kept informed about day care and preschool for the children.

The proposal of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer (“ICL”) proposes:

   (1)That the children spend time with the father at a supervised contact centre, namely G Contact Service, commencing as soon as possible which is likely to be January 2021.

Issues of Risk

1. The mother asserts that the children are at risk of harm as a result of the father's addictive use of pornography and some other reasons. The father concedes that he does view pornography as a means of reducing stress and probably for pleasure. It is not a criminal offence to view pornography depicting adults. 

2. The older child, it is conceded by the father, has been affected by the father's viewing of pornography and his associated conduct. 

3. On his own evidence, the father was viewing pornography on a day in December 2019 when the children were in his sole care. The family was staying in the home of the paternal grandparents in Town H. The father was the only adult in the house. The father believed, wrongly, that both children were asleep when he began viewing pornography on his laptop in his room. He was masturbating with the use of a sex aid in the form of a lower half of a woman.

4. The father became aware of X when she walked into the room and asked him, "What are you doing with your penis?" She was then aged two years and nine months old. The father explained that he was just massaging, and when asked about the sex aid that he had been using, he said, "Massaging the vagina with his penis."

5. The father is an allied health professional, and both he and the mother have historically massaged the children. Accordingly, the explanation would probably have made some sense to the child. The father apparently said nothing to the mother about this incident. The reason for his silence will likely be explored at trial.

6. One week later, the mother commented to the father that she had seen X "making thrusting movements on her doll".[1] 

   [1] Affidavit of the father filed 12/08/2020, par 26.

7. On 14 December 2019, the mother texted the father who was collecting his parents from the airport with something which clearly worried her. "X came to me today and said, 'Daddy massages my gina with his penis’."

8. It is to her credit as a parent that the mother contacted the father in this way.  The father responded that when he came home, they would talk about it. The parties did talk about it.

9. The father revealed the incident of the previous month when the child walked in on him. The mother, quite reasonably and calmly, accepted that the incident described could have led to the child's statements. Together they spoke to the child. The mother asked whether the father had touched the child with his penis. The child said, "No". There was then some chatting about touching with the child.

10. Later that day, the father chose to challenge the child, "Why did you tell Mummy that I massaged your gina?" The child denied she had. 

11. The father said the child then started making various statements such as "Mummy massages my gina with her fingers." "Daddy massages the door and the wall." "Mummy massages the plant." 

12. The parents maintained a conversation about the child, and what she had seen and said.

13. In January 2020, the mother, quite astutely, raised the fact that if the child said such things at day care, "It would potentially cause issues for us as parents."

14. In March 2020, the parties began to speak of parting from each other. Also in that month, the mother made a statement to police and a JIRT interview with the child followed. 

15. Thereafter, it appears tensions between the parties eased with the father regularly caring for the children at the mother's request when she was working. 

16. The mother is not alleging that the child has been sexually assaulted by the father. She is alleging that the father represents an unacceptable risk of harm to both children.

17. With reference to the decision in M & M (1988) 166 CLR 69, the question arises is there a risk of harm and, if there is, what is that risk, and what is its magnitude?

18. Is there a risk of harm that the children will be exposed to the father using a sex aid in his bedroom while they are in his sole care? 

19. Given his proposal for supervision, there is the most minimal risk, certainly not at an unacceptable level. 

20. The mother reacted in a calm and logical fashion to the events which followed X seeing what she did. The Court notes that the father did not tell the mother about the incident immediately. He did so when the mother, most responsibly, asked him for an explanation for what the child had subsequently said to her. Likewise, the mother, again responsibly, put the matter on the record by reporting the child's statements to the Department of Communities and Justice.

21. However, in retrospect, the mother appears to have decided that the father has nothing to offer the children and is a threat to them.

22. Until there can be a trial and enquiry into all matters in dispute, the court must take a conservative approach based on the safety and wellbeing of the children. The balance of harm in this case is the complete loss of the relationship between the father and the children if there is no order for time against the risk of the children being again accidentally exposed to self-indulgent sexual gratification by the father when the children are in his care.

23. The presence of the paternal grandmother, who is very well known to the children, is adequate protection from the harm identified as well as from any periods of physical or mental frailty by the father when the children are with him.

24. Accordingly, orders are made largely in accordance with the father's Minute of Order with some variation to meet the initial restriction on the availability of the paternal grandmother due to the health of the paternal grandfather.

25. The ICL proposed supervised time at G Contact Centre. That would be available starting probably early in 2021. Neither party particularly supported or rejected that proposal.

26. During the course of submissions, the mother withdrew her proposal for C Contact Service to supervise if the Court considered that the children should see the father. However, there was no reference to any other preferred service. 

27. The parties are at liberty to take up that proposal (of the ICL) as an additional variation to these orders if they agree to do so. 

The physical and mental health of the father

1. Counsel for the mother urged the court to receive into evidence notes from J Psychology. There were 49 pages, mostly handwritten, not all legible, not all dated.

2. The Court takes the view that such notes are evidence of the father seeking assistance from a psychologist in 2019 and 2020. Attempting to extract meaning from the notes would be to run the risk of misinterpreting and misunderstanding what was expressed and by whom, that is, the father and/or the psychologist.

3. On behalf of the mother, the Court was also taken to COPS records dated between 2001 and 2003 when the father was a teenager in angry dispute with his parents. From these reports, a complex medical and social history emerges.

4. If the parties remain in dispute over their children, there is likely to be a Single Expert Report, and also evidence from treating medical practitioners of the father. 

5. The current proposal of the father for supervised, face-to-face time with his children once per week represents an acknowledgement by him that he has fluctuating health problems, and that the presence of a third party is appropriate to ensure the safety and comfort of such very young children.

6. It appears not to be in dispute that the father was sexually assaulted by a maternal relative when he was a child leading to internal family conflict.

7. This unfortunate fact has no bearing on an interim decision about whether the children should maintain a relationship with their father or not pending the hearing and determination of a final trial.

8. The ICL submitted into evidence two reports, one by Mr K of 30 April 2020. That report sets out a medical history for the father, commencing with cancer chemotherapy which has created health problems later in life, and a number of surgeries. There is a raft of other conditions involving pain and challenges to mental health.

9. The second report by Dr L of 28 September 2017 was a psychiatric assessment of the father which included input from the mother. The psychiatrist raised the possibility of major depression and anxiety. He recommended therapeutic work with a psychologist, and relationship counselling for both parties.

10. The paternal grandparents live in Town H. The parties and children frequently stayed with the paternal grandparents, other than during the period of 12 months when the parties lived in Melbourne.

11. The paternal grandmother flew down to stay with them on occasions. The paternal grandmother has offered to supervise time between the father and the children. She is very well known to the children and they call her "Nanna".  She has expressed her knowledge of her son, his inclination to view pornography and to play online games. She disapproves of those activities.

12. The paternal grandmother has provided an undertaking to the court in writing to be present, and to supervise all time between the father and the children.  There is no disqualifying factor for supervision by the paternal grandmother.

13. Even the untested evidence suggests that the paternal grandmother is unlikely to be blinded by partiality for her son over the subject children. 

The Children and Parents Issues Assessment (“CAPIA”)

1. The family consultant gave her opinion that if the current situation "of no time and contact continued", the children would become estranged from the father.  It must be so. The mother acknowledged X missing her father.

2. A recommendation was made that the children spend time with the father supervised by one or both of the paternal grandparents.

3. The Court endorses the view of the family consultant that the proposed supervision by a family member was a practical way forward. 

4. The evidence before me is that the paternal grandfather is expected to undergo hip replacement surgery in November 2020 which is the explanation for some restrictions on the availability of the paternal grandmother during that time. 

Conclusion

1. The mother proposed to the court that she have sole parental responsibility for the children. The father does not propose any allocation of parental responsibility at this time. Section 61DA of the Family Law Act 1975 (Cth) (“the Act”) requires a Court to 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 when making a parenting order. Section 61DA(3) of the Act make provision for interim orders such that the presumption applies unless the Court considers that it would not be appropriate in the circumstances.

2. In this case, the parties are deeply divided at present. The preferred position of the mother is for the father to spend no time with the children, have no communication with him, and to stay away from where they live and where the children go to preschool. The father described to the family consultant a very good historical co-parenting relationship. The mother presently is reported by the family consultant to hold the view that she is unable to co-parent with the father due to their diametrically opposing values, cultural issues, and inability to communicate.[2]

   [2] CAPIA dated 18/09/2020, par 39.

1. Whilst I accept that the mother expressed that view, her evidence is that the father cared for the children when the mother was working, although at times he was afflicted by poor physical and mental health. Also, that the father continued to do so after the incident with X in December 2019.

2. In the circumstances, I consider that it would not be appropriate to make any allocation of parental responsibility at this time, although clearly the day‑to‑day decisions will be made by the mother. In respect to orders for overseas travel, it is sensible for the children's passports, if they have them, to be kept current but there is no proposal for overseas travel in the immediate future, and the mother is not pursuing her relocation application at this time.

3. Accordingly, there is no order made for overseas travel, rather, a restraint on both parties travelling without the consent of the other with the children.

4. A restraint has been imposed on the mother nominating two of her friends to attend at changeover. This is not a reflection on the two people involved.  Rather, it is to ensure that tension between the parties, the paternal grandmother, and the two nominated persons does not erupt in the presence of the children. The mother has a permanent babysitter for the children and she, or any other person known to the children, may attend changeovers as the nominee of the mother.

5. There was a proposal that the children spend Christmas Day with the father.  Christmas Day this year falls on a Friday. The children will be spending time with the father on Wednesday 23 December 2020. Accordingly, it appeared to me to be more practical for there to be time on Christmas Eve, Thursday 24 December 2020. 

6. And, in any event, it is very late to be changing the plans which the mother is likely to have made for Christmas Day with the children which should not be disrupted.

7. Orders are made in accordance with these reasons, and they will be distributed now.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the oral reasons for judgment of the Honourable Justice Cleary delivered on 4 November 2020

Associate: 

Date:  4 November 2020