K and K - [2004] FMCAfam 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & K

[2004] FMCAfam 666

FAMILY LAW – Children – allegations of risk to child – supervised contact.

Family Law Act 1975 (Cth), ss.60B; 65E; 68F

B v B (1993) 16 Fam LR 353
In the Marriage of Russell & Close- 25/06/1993 FamCt Unreported
In the Marriage of Sampson (1997) FLC 90-253
In the Marriage of Sedgley (1995) 19 Fam LR 363
M v M (1988) 166 CLR 69
Marra and Marra Appeal SA 44 of 1992, 8 September 1993, Unreported
N and S (1995) 19 FLR 1837
Re Andrew (1996) 20 Fam LR 538

Applicant:

Respondent:

File No:

BRM5722 of 2004

Delivered on:

19 November 2004

Delivered at:

Brisbane

Hearing dates:

17 & 18 November 2004

Judgment of:

Emmett FM

REPRESENTATION

Counsel for the Applicant:

Mr Foley

Counsel for the Respondent:

Mr Slack

ORDERS

That the child, ARK (“the Child”) reside with the Respondent mother.
That the Applicant father have such contact with the Child as agreed in writing between the parties and unless otherwise agreed then:
(i)No less than 4 times a year for 3 consecutive days in Melbourne between 4pm and 6pm unless one of the days is a weekend in which case 9am to 12 noon. Note that the intention is that the periods be reasonably spaced during the year;
(ii)For 3 consecutive days in Melbourne between 4pm and 6pm unless 1 of those days is a weekend in which case 9am to 12 noon to be nominated by the Applicant father around Christmas 2004. Note the present intention of the Applicant father is to request contact for 3 days following 27 December 2004;
(iii)The next 2 contact periods are to be exercised in the presence of the Respondent mother and may include the paternal grandmother;
(iv)The third and fourth contact periods are to be supervised by the Respondent mother on the first day of the contact period only;
(v)From 2006, contact is to be no less than 4 times a year for 3 consecutive days in Melbourne including overnight. The Applicant father is to collect the Child from the home of the Respondent mother at 4pm on the first day of contact if it is a weekday and 9am if the first day is on a weekend and deliver the Child back to the Respondent mother by 6pm on the third day of contact;
(vi)From 2007, in addition to the contact above, contact of 3 periods of 1 week during a school holiday period, each to be exercised at a location of the Applicant father’s choice and at his expense if contact is to occur in Queensland;
(vii)From 2008 onwards, in addition to the contact referred to in (c), 4 weeks of contact to be exercised in a school holiday period at a location of the Applicant father’s choice and failing agreement in 2 periods of 2 weeks each.
The Applicant father shall be responsible for the collection and return of the Child on contact occasions.
The Respondent mother is to make the Child available to the Applicant father for regular telephone and web cam contact as agreed between the parties and failing such agreement such contact is to occur as follows:
(i)Telephone contact each Tuesday between 6pm and 6.30pm Melbourne time with the Applicant father to make the telephone call;
(ii)Web cam contact from 5.30pm to 6pm Melbourne time each Friday. Note that for the purpose of exercising web cam contact the Applicant father will provide to the Respondent mother a web cam facility for her computer and the Applicant father and Respondent mother will each maintain a web cam facility on their computer.
That the parties shall be entitled to attend any social, sporting or educational event involving the Child, including but not limited to theatre performances, sporting events, school functions, Christmas parties and other special occasions.
That each party shall keep the other informed as to his or her residential address, residential telephone number, work telephone number, email address, facsimiles transmission, and mobile telephone number and advise the other of any change to those details within 48 hours of any change.
That the Respondent mother hereby irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, preschool, school and any social, sporting or recreational organisation, to release all and any information (verbal or in writing) reasonably requested by the Applicant father in relation to the Child.
That in the event that the Child requires significant medical or hospital treatment, the parent then caring for the Child will immediately inform the other parent.
That the parties consult in respect of all decisions concerning any non-urgent medical procedures and treatment.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM5722 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Applicant father seeks Orders providing for unsupervised contact with the child of the parties ARK (“the Child”) in the following terms:
a)No less than 4 times a year for 3 consecutive days in Melbourne between 4pm and 6pm unless one of the days is a weekend in which case 9am to 12 noon;
b)The first 2 contact periods in 2005 are to be exercised in the presence of the Respondent mother;
c)The third and fourth contact periods are to be supervised by the Respondent mother on the first day of the contact period only;
d)From 2006, such contact is to be overnight in Melbourne;
e)From 2007 when the Child starts school, in addition to the contact above, contact of 2 periods of 1 week each to be exercised at a location of the Applicant father’s choice;
f)From 2008 onwards, in addition to the contact referred to in (c), 4 weeks of contact to be exercised at a location of the Applicant father’s choice and failing agreement in 2 periods of 2 weeks each.
The Applicant father also seeks regular telephone contact and web cam contact with the Child although he recognises that given the age and verbal skills of the Child contact is likely to provide familiarity of his voice and face to the Child only and little conversation is likely to occur.
The Respondent mother seeks Orders that contact should be only in accordance with 1(a) but supervised by the Respondent mother until the Child is 12 years old. Thereafter holiday contact in accordance with 1(f).
The questions for determination arising from the application’s of the parties essentially involve consideration of whether there a risk to the Child, whether that risk is unacceptable and what are the Orders that should be made having regard to the best interest of the Child having given due consideration to ss.60B, 65E and 68F of the Family Law Act 1975.

Facts

The parties met in 1996 and lived with the Applicant father’s mother until April 2000. The parties married on 17 July 1999 and separated in late January 2003.
On 20 February 2003 Orders were made by consent in the Family Court of Australia at Melbourne.
It is common ground that difficulties emerged in the marriage following the birth of the Child on 13 February 2002.
It is also common ground that the Applicant father told the Respondent mother that he was not sure if he was safe with the Child because he felt partial sexual arousal when he held her in the hospital and on another occasion.
This revelation understandably caused extreme concern in the Respondent mother as to the safety of the Child in the Applicant father’s care when unsupervised.
It is also common ground that prior to the separation the Applicant father, who was in his mid twenties, was undergoing internal turmoil as to his sexuality.
In paragraph 57 of his Affidavit filed 1 July 2004, the Applicant father said that he felt “mild arousal” that he could not explain when holding his child or hugging his grandmother. In cross-examination he agreed that the words he had used to the Respondent mother at the time were “partial sexual arousal”, as a result of which the Respondent mother formed the view that he had a sexual interest in the Child. The Applicant father stated that this has never been the case despite the words he may have used.
Following this revelation by the Applicant father to the Respondent mother the parties attended Mr Piotrowski a Clinical Forensic Psychologist.
Mr Piotrowski in his report dated 20 May 2003, having seen the Applicant father on 5 occasions, between 28 January and 18 March 2003, as to his suitability as a contact parent to the Child. Mr Piotrowski concluded that there was nothing in the Applicant father’s presentation or the results of an assessment of arousal to a range of explicit sexual stimuli that suggested that the Applicant father was a risk to the Child.
Mr Piotrowski further concluded that his assessment indicated a heterosexual arousal pattern and no homosexual arousal pattern. The Respondent mother submits that because the Applicant father has now identified himself as a homosexual that little weight should be placed on any of the conclusions of Mr Piotrowski, particularly his conclusion with respect to the Applicant father’s risk to the Child.
However the Respondent mother did not seek to cross-examine Mr Piotrowski.
The Applicant father further relied on 3 reports of Dr Joan Lawrence dated 9 August 2004, 21 October 2004 and 16 November 2004.
In each of the 3 reports Dr Lawrence concludes that the Applicant father does not suffer from any paedophilic interest which would in any way represent a threat to his daughter or to any other child.
In her report dated 16 November 2004, Dr Lawrence notes that the Applicant father has matured in the past 18 months and appeared open and fully accepting of his sexuality which was reflected in his more relaxed and open manner.
Whilst Dr Lawrence acknowledged the Applicant father’s fetish for male body hair she could establish no evidence of any other aberrant or deviant practices.
In relation to his feelings of partial sexual arousal Dr Lawrence agreed in cross-examination that the Applicant father had told her he used those words to the Respondent mother when cuddling the Child but concluded that the use of those words resulted from his unresolved confusion in relation to his sexuality and his ineptness in otherwise expressing feelings of love, warmth, pride and protectiveness to his child.
Dr Lawrence referred specifically in her Affidavit of 9 August 2004 that she had read the Affidavit material of both parties and concluded that accepting the Respondent mother’s version of events as correct it was her professional opinion that the Applicant father presents no risk to the Child.
The Respondent mother submits that the Applicant father failed to tell Dr Lawrence of both the frequency with which he experienced feelings of partial sexual arousal when holding the Child and that he had expressed concern that the Child may not be safe with him.
Dr Lawrence stated that partial sexual arousal would not in her opinion increase the risk. However full sexual arousal accompanied by external factors of self-gratification and fantasies would increase the risk. Dr Lawrence did agree that the frequency of partial sexual arousal, if the arousal was also increasing, would raise a degree of risk. There is no evidence to suggest that any arousal was increasing.
The Respondent mother submitted that the Applicant father used the words partial sexual arousal because they reflected the truth of his reaction when holding his daughter.
The Applicant father agreed that he had experienced a partial erection leading to a feeling of closeness although he said not in a sexual sense and that the feeling was the same as the warm fuzzy feeling when hugging his grandmother or other members of his family.
The Applicant father further said in cross-examination that although his penis became partially erect, he never needed to stimulate himself, gratify himself nor did he ever have fantasies. He said he had reacted in a similar physical way many times in his life in relatively ordinary circumstances including hugging members of his family and shopping.
The Applicant father further said in cross-examination that the feelings of arousal that occurred were the feelings of warmth and love for his daughter although he agreed that he may have told the Respondent mother that he felt sexual arousal on many occasions. Dr Lawrence’s concern was the presence of any other indicia such as increasing arousal, a need for gratification stimulated by contact with his daughter and the involvement of any fantasies involving children. The Applicant has at all times denied the presence of these further factors.
Given the intimacy of the disclosures made by the Applicant father to the Respondent mother as to his feelings and his sexuality, having observed him in the witness box and having regard to the Respondent mother’s concession of his calm nature indicating a degree of self-control, I accept the truthfulness of his denial.
The Applicant father said that he guessed he was feeling guilty when he used the words partial sexual arousal to the Respondent mother when holding the Child, and agreed that he was troubled by these feelings and was in denial.
I am satisfied that these words were used by the Applicant father in a climate of extreme internal and emotional turmoil as to his sexual identity and the effect his uncertainty about his sexuality was having upon his wife and his marriage. It is to his credit that he sought to be as frank as possible with his wife in identifying and exploring the feelings he was having about his sexuality in the most intimate of terms.
It is to his credit that upon recognising the seriousness of the consequences of the feelings he was expressing that he was prepared to seek professional help and comply with his wife’s directions in respect of how and where that help should be sought.
The Applicant father said that whilst he said those words and acknowledged the concern they must have caused in his wife they were not accurate in describing or reflecting any sexual proclivity for his daughter and that:
“words and feelings are different.”
Dr Lawrence said in cross-examination that it was not unexpected in her experience, for a man with the troubles of the Applicant father in facing other conflicts, to use words such as ‘partial sexual arousal’ to describe warm fuzzy feelings in attempting to explain to his wife his feelings. Whilst she acknowledged that one cannot exclude the possibility he was telling the truth it was not her opinion that he was intending to convey to the Respondent mother that he was sexually attracted to the Child.
However, Dr Lawrence agreed that she was not aware that he had expressed concerns about the safety of his daughter to the Respondent mother on two occasions and that such a revelation may affect her assessment of the Applicant father’s risk to the Child depending on the context. I note however that the Respondent mother’s Affidavit, in which the Applicant father’s concern about his safety with the Child was referred to, was part of the material to which Dr Lawrence had regard. I also note that the occasions upon which the Applicant father expressed these concerns was during the height of his sexual confusion and guilt.
The Respondent mother relied on a report by Dr Chalk dated

11 November 2004 in which he stated that he had had regard relevantly to the Respondent mother’s and Applicant father’s Affidavit’s, the Affidavit of Ms Langton and the Affidavit of Dr Lawrence sworn

21 October 2004.
Dr Chalk proceeded to interview and assess each of the parties. The Respondent mother had every opportunity to identify with Dr Chalk the full extent of her concerns and the facts upon which she relied in giving rise to such concerns.
Dr Chalk concluded in respect of the Respondent mother that he had:
“no substantial concerns about her ability to mother her child”
The Applicant father attended upon Dr Chalk pursuant to an Order sought by the Respondent mother.
Dr Chalk acknowledged that there had been some variation of the Applicant father’s account as to the arousal that holding his daughter caused in him but that the Applicant father had stated to him that the arousal was of an emotional nature out of wonder at the arrival of his new born daughter.
Dr Chalk concluded in respect of the Applicant father that in his view, there is:
“no cogent evidence to suggest that he has paedophilic proclivities and in my view no clear basis for denying him unsupervised access.”
The Respondent mother in cross-examination acknowledged her feelings of anger and betrayal at the Applicant father but stated that she could separate those feelings when it came to the best interests of the Child.
In my view the Respondent mother demonstrated little insight or understanding of the significant difficulties that the Applicant father had wrestled with and seemed to fail to appreciate the steps he had taken to involve her intimately in his search for his sexual identity. This is not to undermine the understandable reaction that the Applicant father’s difficulties must have caused for the Respondent mother at that time, rather to observe the lack of ability of the Respondent mother to empathise with any position other than her own. In giving her evidence she was particularly self focused on what she considered the Applicant father had done to her.
The Applicant father gave his evidence with the benefit of hindsight of the full consequences of the concerns created by his description of his feelings. I find that whilst he used the words “partial sexual arousal” to describe those feelings in holding his child, they do not represent an expression of sexual attraction to the Child when one has regard to the context in which they were said, namely a time of great uncertainty as to his sexuality, his marriage and his ability to be the father he would like to be.

The law

In considering an assessment of risk to the Child I have regard to the legislation, in particular, ss.60B, 65E and 68F. I also have regard to the following principles espoused in the cases identified below.
In M v M (1988) 166 CLR 69, the High Court concluded that, if an allegation of sexual abuse has not been made out, it does not follow that that conclusion determines the wider issue of what is in the Child’s best interests. In resolving the wider issue, the court must determine whether, on the evidence there is a risk of sexual abuse occurring if contact occurred and the magnitude of that risk.
The Court in M v M (supra) upheld the Trial Judge’s conclusion that an unacceptable risk existed where his honour was unable to exclude the possibility that the Applicant father had abused the Child as alleged. There is no allegation in this case of any particular abuse, rather the existence of a potential risk to the Child having regard to the Applicant father’s expressed concern about the safety of the Child in his care and his feelings of partial sexual arousal in holding her.
The Full Court in Re Andrew cited with approval an earlier unreported decision of the Full Court of the Family Court in In the Marriage of Russell and Close 25/06/1993 FamCt, unreported, that case stated that a subjective test is to be employed in taking into account the belief of the primary caregiver of abuse by the contact parent and the effect of that belief in the primary caregiver and the consequent harm of that belief to the Child. However, the Court identified that it must be shown that such belief on the part of the primary caregiver is genuinely held unless on the whole of the evidence that belief is entirely irrational and baseless. The Court referred to B v B (1993) 16 Fam LR 353 as further supporting the notion that anxiety about a Child’s exposure to potential harm by the primary caregiver is likely to impact adversely on that parent’s ability to care for the Child.
In the case of in the Marriage of Sedgley (1995) 19 Fam LR 363 the Full Court of the Family Court stated at page 371:
“whilst the welfare of the Child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the Child”

That Court went on to say that a decision to cut the relationship between a parent and Child is one which ordinarily a court would only take with considerable hesitation.
In Marra v Marra Appeal SA 44 of 1992, 8 September 1993, (unreported) the Full Court of the Family Court referred to Russell v Close and the now well-established principle that genuinely well held beliefs or concerns of the custodial parents as to access and the circumstances of access are relevant consideration in deciding what access to order. The Full Court went on to say,
“however the relevance of that is not that it gives to the custodian a veto. The relevance is to the extent that it may have an adverse effect on the welfare of the Child. That is, its relevance is that the concerns of the custodian may affect his or her capacity as a custodian, and thus have an effect on the welfare of the Child. Those concerns, although they should be acknowledged, may have little weight where the parent’s caregiving capacity will not be discernibly impaired.”
In N and S (1995) 19 FLR 1837 Kaye and Hilton JJ cited with approval the judgment of Fogarty J in the case of In the Marriage of Sampson (1997) FLC 90-253 where His Honour stated:
“The fact that the custodial parent is opposed to access or does not desire the other party to have access to the Child is in itself irrelevant. The matter has to be determined having regard to the best interests of the Child, not the wishes as such of the custodial parent. That is, her wishes are irrelevant but her reasons must be given proper weight…the matter is to be determined having regard to the welfare of the Child not by considerations of sympathy for the innocent non-custodial parent or feelings of frustration or annoyance with the custodial parent. In such case the question of the future custody of the Child again must be determined only upon a test of the welfare of the Child. It ought not be determined by unconscious feelings of punishing a custodial party who appears to have brought the situation about or rewarding the innocent non-custodial party. In cases where the welfare of the Child dictates that the Child should remain in the custody of the former custodian that must be the result even though the consequence may be that the non-custodial party, innocent of any wrongdoing, is severed for at least the time from continued connection with his or her Child. In cases where the attitude of the custodial parent is genuinely but unreasonably held, the relevance, and in my view the only relevance of that attitude of the custodial parent is that such wilful or irrational behaviour may indicate such a defect of personality or character as to indicate that that person may not be a suitable custodian for the Child.”

Findings

I accept that the Respondent mother’s concern and anxiety is genuine having regard to the manner in which the Applicant father’s feelings were conveyed to her by him and that her original concern was not irrational.
However, I am not satisfied that her present concern is rational having regard to the overwhelming psychiatric evidence of the lack of risk presented by the Applicant father, the immediate steps taken by the Applicant father to address the cause of the Respondent mother’s concerns and his openness and frankness with her about the difficulties he was experiencing with his sexuality.
I note that the Respondent mother is not submitting that there be no contact at all but she does propose that the contact for 2 to 3 hours on three consecutive days four times a year until the Child is 12 be supervised by her as the only appropriate supervisor.
The Respondent mother seeks to criticise the paternal grandmother as a possible supervisor on the most spurious of grounds which relate essentially to the housekeeping of the paternal grandmother. Yet her proposal for supervised contact is only to occur in any event in Melbourne until the Child is 12 years old.
That proposal ignores completely the objects of the Family Law Act, particularly those objects refereed to in s.60B that states, inter alia,
“s.60B(2)(b): Children have a right of contact, on a regular basis, with both their parents and other people significant to their care welfare and development.”
Without doubt, the Child’s paternal grandmother is a person significant to her care, welfare and development.
I note that the Respondent mother not only lived in the home of the paternal grandmother for some number of years, but that she prevailed upon the grandmother to have a friend of hers live in the home rent free for some 10 months.
The paternal grandmother gave evidence and was cross-examined.

I find that she, like both parties, loves the Child very much and plainly has much to offer her grand-daughter having regard to her cultural background and the Child is entitled to the opportunity to experience that to the fullest extent possible.
I have had regard to the fact that the paternal grandmother has a good relationship with both her sons and yet was able to set boundaries for her youngest son during his teenage years.
Accordingly, I reject completely the Respondent mother’s submission that the paternal grandmother would not be an appropriate supervisor in the event supervised contact was ordered.
I have had regard to all the evidence and the submissions put by both parties and in particular the vulnerable age of the Child.
The very fact that the Applicant father would raise so openly his concern about the feelings he has had and the fact that there is no evidence what so ever from an expert point of view that a person with the history of the Applicant father as provided to the experts is a risk to his daughter now or in the future.
There is no evidence to suggest that he is any way incapable of not controlling his feelings.
I have also had regard to the evidence of the Respondent mother’s sister and the evidence relating to the child H. I am not satisfied that the Applicant father was aware that H was in the bed at the time of the incident and in any event no untoward behaviour took place in her presence.
I am also encouraged by the Applicant father’s early recognition of any feelings may cause concern to himself or his wife and his prompt attention in seeking to address them. I have also had regard to the fact that the Applicant father has continued to support the Child financially despite such minimal contact.
The Applicant father in his Orders has also considered the effect of his Orders on the Respondent mother and for that reason is prepared to agree to supervised contact for the first 2 periods in which contact is to occur. It is to be hoped that the Applicant father’s gesture will provide some reassurance to the Respondent mother to the safety of her child whist in his care.
Whilst there is always a risk to any child of the vulnerable age of ARK, I have had regard to the matters raised in ss.65E and 68F, particularly s.68F(2)(g) and I find that there is no unacceptable risk in the nature of physical or psychological harm that may be caused to the Child by unsupervised contact with the Applicant father.
I do note that the contact that the Applicant father has had to date in the presence of the Respondent mother has been cooperative and successful, however, that is no reason to deny the Child, particularly as she gets older, opportunities to develop her relationship with her father in the absence of her mother. Of course contact where both parties are present and can work together cooperatively is always beneficial to a child and it is to be hoped that opportunities may exist for Anna Rose to enjoy contact whilst in the presence of both parties as well as separately as time goes on.
The Orders made for contact are based on the premise that the Applicant father will continue to reside in Queensland and the Child will reside in Victoria. Were that to change and the Applicant father lived closer to the Child then it would be appropriate to vary the Orders to allow for more regular and frequent contact, including weekend contact. However, based on the Applicant father’s presently expressed intention to remain in Brisbane, the parties do not ask me to make Orders for that eventuality.
In relation to telephone and web cam contact, given the infrequent face to face contact occurring between the Applicant father and the Child, I find it is plainly in the Child’s best interest to have frequent telephone and webcam contact with the Child. The Applicant father recognises that such contact is likely to be very short given the Child’s present age and maturity but the Child would a at least have the opportunity to maintain her familiarity with her father by exposure to his voice and face.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 18 November 2004