JUKES & WOODS
[2012] FMCAfam 862
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JUKES & WOODS | [2012] FMCAfam 862 |
| FAMILY LAW – Parenting – discrete issue – time child spends with adult half-brother – unacceptable risk – necessity of supervision. |
| Evidence Act 1995, s.140 Family Law Act 1975, ss.60CA, 60B(1)(b), 60CC(2)(b) |
| Amador & Amador (2010) 43 Fam LR 268 J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295 R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Family Law Bulletin 2-6 |
| Applicant: | MS JUKES |
| Respondent: | MR WOODS |
| File Number: | CAC 1733 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | 30 May 2012 |
| Date of Last Submission: | 30 July 2012 |
| Delivered at: | Canberra |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms C Conroy |
| Solicitors for the Applicant: | Legal Aid NSW (Wagga Wagga) |
| Solicitors for the Respondent: | Self represented |
ORDERS
Until he turns 18 years of age, the child [X] born [in] 2004 (‘the child’) is not to be left alone in the company of his brother Mr C.
During any time the child spends with the Father where his brother
Mr C is present, there must always be an adult in attendance.
IT IS NOTED that publication of this judgment under the pseudonym Jukes & Woods is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1733 of 2011
| MS JUKES |
Applicant
And
| MR WOODS |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this proceeding have twice agreed on parenting orders in relation to their son, eight year old [X]. Those consent orders were made by this Court on 27th February 2012, and again (slightly revised) on a final basis on 30th May 2012.
According to those orders, [X] lives with his Mother and spends regular, defined time with his Father. Telephone time is also provided for in the orders, and the parents agreed on an order for equal shared parental responsibility. For the purposes of the current matter to be determined it is unnecessary to detail the consent orders further.
There is only one issue on which the parties are divided. That is, whether [X] should be permitted to come into contact with his older brother Mr C. The circumstances that give rise to this impasse are outlined below.
It was agreed on 30th May that the resolution of this discrete issue would be undertaken on the basis of written submissions from each of the parties.
Background & Submissions
The Respondent Father, Mr Woods, has two sons, one each from two separate relationships. The elder of the two sons is now aged 24 years. The younger of the sons, as I have mentioned, is aged 8 years.
In 2005, the older son, Mr C, was convicted in the [omitted] Children’s Court in relation to two counts of sexual intercourse without consent. The police records in relation to both offences are part of the formal submissions from the Mother. Those records disclose the horrific nature of those offences perpetrated by Mr C on another boy, who is autistic. It is unnecessary to comment further on the callous and self-indulgent criminal behaviour of Mr C in relation to this appalling incident.
While the Mother concedes that [X] spent time with Mr C while the parents were in a relationship, she avers that this occurred because she did not feel that, because of Mr Woods’ [alleged] violent and controlling behaviour, she could oppose the ‘contact’ between the two siblings. Now that she is no longer in a relationship with Mr Woods, Ms Jukes submits that [X] should have no contact with his older brother, Mr C. She submits that Mr C constitutes an “unacceptable risk” to [X].
Further, the Mother notes in her submissions that, formerly, the son
Mr C did not live in [B], but has now returned to live with his Father, Mr Woods, in that city. As stated in her submissions, “… the Mother has no information as to how the Father would ensure [X]’s safety if he was to spend time with the Father while Mr C is in his care.”
For his part, and para-phrasing, Mr Woods submits that (a) Mr C is remorseful over his crime, (b) Mr C and [X] (and Mr C and other children) have previously spent time (and significant time) together without incident, and (c) the inability of the two siblings to be together is placing a significant strain on the family because they cannot be together at family functions. Mr Woods notes that he intends to wed next year and would wish both of his sons to attend.
No case law was cited by either party in support of their respective submissions.
Legal Principle
In a recent decision, Luther & Luther, I set out relevant principle in relation to “unacceptable risk.” With slight revision, I note the following from that judgment.[1]
[1] Luther & Luther [2010] FMCAfam 761.
The issue to be determined involves necessarily a consideration of what is and what is not an “unacceptable risk” to [X] on the evidence before the Court,[2] and in the light of the statutory and other jurisprudential considerations that must be taken into account in framing orders that are in his best interests.[3] Given that his parents have agreed on all other parenting issues, it is only this significant issue of whether the older sibling, Mr C, poses an unacceptable risk to his younger brother, [X], which requires the Court’s consideration and determination.
[2] Among many cases and other relevant materials in relation to “unacceptable risk”, see M v M (1988) 166 CLR 69; Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303; Johnson & Page (2007) FLC ¶93-344; Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401; and Amador & Amador (2010) 43 Fam LR 268, especially at [86] – [96]. See also the helpful summary in J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295, especially at pp.265-266, cited with approval in Johnson & Page at [68] and [71], and R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Family Law Bulletin 2-6.
[3] See s.60CA.
A signal part of the Court’s statutory responsibilities under Part VII of the Family Law Act 1975 (“the Act”) is to protect children from “physical or psychological harm [and] from being subjected to, or exposed to, abuse, neglect or family violence.”[4]
[4] S.60B(1)(b) & s.60CC(2)(b). See also Brown J’s comments on the “twin pillars” of the Act in Mazorski v Albright (2008) 37 Fam LR 518 at [3] – [6].
The starting point for such a discussion is the High Court’s comments in M v M.[5] The High Court said:[6]
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 [1938] HCA 34; (1938) 60 CLR 336, at p 362. 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] M v M (1988) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ).
[6] (1988) 166 CLR 69 at pp.76 & 77 [22].
The High Court went on to make the following further observations in relation to “unacceptable risk”:[7]
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access)[1986] FLC ¶91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 BCLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) [1987] 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[7] (1988) 166 CLR 69 at pp.77 & 78 [24] & [25]. The basal principle from M v M in relation to “unacceptable risk” set out in [25] of that judgment has most recently been referred to by Gleeson CJ in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at p.593 [22].
I move to the more recent discussion by the Full Court in the joint judgment of Bryant CJ and Kay J in Napier v Hepburn.[8] At [84], and again at [91], their Honours said:[9]
[84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[91] That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated....
[8] Napier v Hepburn (2007) 36 Fam LR 395.
[9] Warnick J agreed, at [113], with this analysis of the joint judgment in upholding the appeal.
Likewise in Johnson & Page, the Full Court (May, Boland & Stevenson JJ) examined at length the proper approach to issues concerning “unacceptable risk.” The Court quoted with approval the extended discussion in Napier v Hepburn on “unacceptable risk” and the course that should properly be pursued by a court in such an assessment, including the detailed citation (with obvious approval) of the dissenting judgment of Fogarty J in N v S.[10] For current purposes it is sufficient to note the following series of questions posed by Fogarty J in N v S, as cited by the Full Court in Johnson & Page at [66]. The relevant part of that judgment is as follows:[11]
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
[10] (1995) 19 Fam LR 837 at pp.859-861.
[11] See Johnson & Page (2007) FLC ¶93-344 at p.81,889 [66]. The same extended quotation from N v S is located in Napier v Hepburn (2007) 36 Fam LR 395 at p.406 [56]. Napier v Hepburn’s discussion of N v S was also considered and supported by the further Full Court decision in Potter v Potter (2007) 37 Fam LR 208 at pp.231 – 231 [124] & [125].
I note that the Full Court in Johnson & Page, at [68], [71] and [72], expressly endorsed the comments of the Hon J. Fogarty in his article, “Unacceptable risk – A return to basics” (“the Fogarty article”).
Point 1 in the Fogarty article refers to the statutory and self-evidently fundamental cornerstone of any order involving a child, namely that the decisive issue is and always remains the best interests of that child.[12] As Fogarty rightly says: “All other issues are subservient [to the best interests of the child].”[13]
[12] See s.60CA of the Act.
[13] “Unacceptable risk – A return to basics” 20 AJFL at p.266.
Fogarty’s second point is as follows: “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[14]
[14] Ibid – emphasis added.
Fogarty’s fifth point states: “The concentration of these cases should normally be upon the question whether there is an unacceptable risk to the child.” Point six says: “The onus of proof in reaching that conclusion is the ordinary civil standard.”
Importantly for current purposes, point seven observes: “But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.” (Emphasis added.)
For the sake of completeness in relation to the standard of proof, I note the Full Court’s discussion of s.140 of the Evidence Act1995, in the light of relevant High Court authority. In Johnson & Page, at [69] – [70], the Court said:
[69] Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
[70] We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“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 …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [footnotes omitted]
Although determined prior to the introduction of the Evidence Act the principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)
It is also important to note the Full Court’s more recent comments in Amador v Amador. In that case, at [90] and [96], the Full Court (May, Coleman & Le Poer Trench JJ) said:
[90] … the more serious the allegation the greater degree of certainty in relation to making the finding is required. As Dixon J set forth in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequence 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.
Again in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the High Court said at 170: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.”
[96] It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.
Discussion & Resolution
Using the references cited, notably by Fogarty, the principal issue to be addressed is for the Court to evaluate the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
The risk alleged by the Mother is of Mr C perpetrating a crime against his brother [X] of the same or similar kind to that for which Mr C was found guilty in 2005.
The Father says that there is no relevant risk.
In my view, even accepting the Father’s submission that Mr C has expressed “remorse” for his crime (for which there is no formal evidence), the Court cannot say that there is no risk to [X]. What that risk is, remains a much more difficult task.
In my view it is sufficient that the Court find that, on the basis that
Mr C has been convicted of such a terrible offence, and that it occurred seven years ago, and without any allegation of any similar offence since (and certainly no further, similar charges), there must remain at least some risk that Mr C may re-offend. In 2005, Mr C took advantage of a very vulnerable person and committed a cruel, predatory, indeed heinous offence. The Court has no relevant evidence – other than that he has not been charged with any similar or relevant offence since 2005 (other than failing to comply with reporting obligations) – that there is absolute certainty that he will not re-offend in the future.
The Court must therefore consider whether a ‘no contact order’ as sought by the Mother is appropriate as between siblings, or whether some ‘middle ground’ with appropriate protections, such as a form of supervised time, would provide a sufficient safeguard to [X] so as to allow the siblings to resume spending time together.
In my view, the latter course is sufficient to protect [X] from any risk posed by being in proximity to his older brother. Accepting that some risk remains, in my view, [X] would be sufficiently protected by an order that required that, until he turned 18 years of age, [X] is never to be left alone in the company of his brother Mr C, and that whenever [X] spends time with his Father, and his brother Mr C is present, during any time spent between the two siblings there must always be in attendance another adult. The Court so orders.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 31 August 2012
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