KAISLER & TALGO

[2020] FCCA 3596

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAISLER & TALGO [2020] FCCA 3596

Catchwords:
FAMILY LAW – Parenting – interim application by father for time with child who is 5 and a half years old – where father reported to SAPOL and DCP in 2017 for discussing sexual fantasies about children and his daughter in online chat room – where no charges laid – where mother says child has recently displayed behaviours consistent with having been sexually assaulted – where father admits the 2017 conduct but denies dealing with the child inappropriately in any way – assessment of risk – further information sought by police and department – father’s interim application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 62G(2), 68L & 69ZW

Cases cited:

Deiter v Deiter [2011] FamCAFC 82

Slater v Light [2013] FamCAFC 4

Applicant: MR KAISLER

Respondent: MS TALGO

File Number: ADC 5442 of 2020

Judgment of: Judge Heffernan

Hearing date: 16 December 2020

Date of Last Submission: 16 December 2020

Delivered at: Adelaide

Delivered on: 22 December 2020

REPRESENTATION

Solicitors for the Applicant: Ms Elkins for Williams Barristers & Solicitors

Solicitors for the Respondent: Ms Dansie for Stevens Law

NOTING THAT the Department of Child Protection is respectively requested to attend at Court on the next occasion and is to consider its decision as to whether or not to conduct an investigation on the allegations made by the mother

THE COURT ORDERS THAT:

1. The application for the father to have in person time with the child, X born in 2015, is dismissed.

2. During the period of the adjournment, the father is at libery to have video call time with the child as follows:

   (a)On Christmas Day between 10.00am and 10.30am;

   (b)One occasion per week on a day to be agreed between the parties between 6.00pm and 6.30pm; and

   (c)The mother is to use her best endeavours to faciliate and not frustrate the video call time.

3. The father is at liberty to send cards and presents to the child for Christmas.

4. The parties do all things necessary to enrol in and be accepted into the supervised time program at either the Suburb B or Suburb C Children’s Contact Service (NOTING that the supervised time will not commence without further Order of this Court).

5. The parties comply with all reasonable directions of any employee of the Children’s Contact Service and follow all guidelines regarding the use of the Service.

6. At the conclusion of six (6) visits at the Service, a report be obtained from the Service at the joint expense of the parties.

7. The father is to obtain a report from Mr D as to his previous counselling with Mr D.

8. The father is to obtain an independent psychiatric assessment by either Dr E or Dr F and is to file and serve a copy of such report.

9. For the purpose of preparing the report, the solicitors for the mother are at liberty to forward to the independent psychiatrist:

   (a)Copies of all affidavit materials and pleadings filed in these proceedings;

   (b)Copies of the material supplied by the imbedded family liaison officers from the Department of Child Protection and SAPOL;

   (c)Any report received from Mr D;

   (d)and the independent psychiatrist is at liberty to contact Mr D to discuss his assessment of the applicant.

10. The parties be restrained and an injunction is hereby granted restraining them from discussing these proceedings with or in the presence of the child.

11. The father is to make all necessary enquiries to enrol, attend and complete a Circle of Security Parenting Course and provide the Court with a certificate of completion under cover of affidavit as soon as it becomes available.

12. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2015 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within 7 days of the date hereof and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.

13. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship X born in 2015 attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, with such report to be released no later than 30 June 2021.

14. The Family Report to deal with the following matters:

    (a)to include interviews with the parties, the child and relevant family members (with the father and the child at the discretion of the family consultant;

    (a)observed interaction between the child and the parties;

    (b)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (c)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

    and

    (d)any other matters that the family assessor considers important to the welfare or best interests of the said child.

15. The solicitors for the parties (or self-represented party) forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

16. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

17. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)     Children’s Court;

    (b)    a child protection authority;

    (c)     a State or Territory legal aid authority; and

    (d)    a convener of any legal dispute resolution conference.

18. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to orders made herein, they shall write to the Chambers of Judge Heffernan seeking that the matter be listed on short notice for their objection to be heard.

1. Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department for Child Protection do provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising relating to the child X born in 2015;

   (b)copies of any notifications regarding abuse allegations arising relating to either party during the course of their adult lives, MR KAISLER born in 1989 and MS TALGO born in 1992.

   (c)any assessments of investigations into such abuse allegations;

   (d)the outcome or findings of any such investigations; and

   (e)copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.

2. Pursuant to section 69ZW of the Family Law Act 1975 (Cth), the South Australian Police Department shall provide the Court with the following documents or information:

   (a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties (MR KAISLER born in 1989 and MS TALGO born in 1992) or the infant child X born in 2015; and

   (b)the outcome or findings of any such investigations, including antecedent reports for each of the said parties.

3. Further consideration of the matter is adjourned to 9.30am on 5 February 2021 before Judge Heffernan for directions.

IT IS NOTED that publication of this judgment under the pseudonym Kaisler & Talgo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5442 of 2020

MR KAISLER

Applicant

And

MS TALGO

Respondent

REASONS FOR JUDGMENT

(Settled from transcript)

Introduction

1. This is the father’s interim application with respect to the child, X, who is currently five and a half years of age.  He filed proceedings in this Court and sought orders for the immediate delivery up of the child on the basis that she was being withheld by her mother.  He says the mother has withheld the child since 28 September 2020 when he informed her that he was seeking legal assistance to formalise parenting arrangements.

2. The father’s Initiating Application seeks final orders for the parties to have equal shared parental responsibility and for the child to live with them on a week-about, shared care basis.

3. The mother opposes those orders for two reasons.  Firstly, a Department of Child Protection (‘DCP’) incident in which the father was involved in 2017, which I will refer to later.  Secondly, observed changes in the child’s behaviour which gives rise to a concern that she has been sexually interfered with at the hands of the father.  I note at this stage that the father unambiguously and vehemently denies any such behaviour.

4. I have received information from the DCP and South Australia Police (‘SAPOL’) to which I will refer to in a moment. 

5. This is an interim hearing.  It has been said that at an interim stage a court should only make those orders necessary to secure the best interests of a child prior to the final determination of issues at a trial where the evidence can be properly tested.

6. Where allegations of physical, psychological or sexual risk are made, the court must conduct a risk assessment of all of the evidence before it and determine whether there is an unacceptable risk towards a child in having contact with the party against whom the risk is asserted.

7. I cannot make any final findings of fact on an interim hearing.  As I have said, I cannot test the evidence.  I must take into account that, because of the interim nature of the proceedings, the evidence before me is almost inevitably going to be incomplete, and that there will be more matters which may have direct bearing on the assessment of the evidence which come to light as the case proceeds.  I have to consider all of the evidence before me which I regard as being reasonably capable of belief in the process of risk assessment. 

Background

1. The father asserts that he has had a close relationship with the child.  He has re-partnered since separation and is currently in a relationship with a person by the name of Ms G who has two young children.  He says that those children adore his daughter, X, and that her time in their presence, and indeed his presence, has been constructive and important.  He says that he has a close relationship with the child and has been an actively engaged parent.

2. The father says he received a text message from the mother in September of 2020 in which she told him that she will be travelling with the child to Town H on 18 or 19 December 2020 until 26 or 27 December 2020, and that he should notify her if he wanted more time with the child over the Christmas holiday period.  On the basis that the mother had made a decision for the Christmas period without having any discussion with him, he concluded that it was clear that she did not respect his position as the child’s father, and as someone who would like to be involved in making major life decisions about her.

3. He decided that his only option was to engage a lawyer, and with their assistance, formalise future care arrangements.  At about that time he informed the mother that it was his intention to get lawyers involved.  He says that on 8 October 2020 he became aware that X had been absent from child care on the previous day and he sent a message to the mother asking her why X was not at child care.  He said the mother then responded to him saying that she had been going to message him that afternoon and that X would be staying with her over the weekend.  That is X would not be visiting the father because the mother was concerned about her safety.  As a consequence of those concerns, the mother unilaterally withheld the child and refused all of his attempts to communicate or spend time with her since.

4. The father discloses that in 2017 he had involvement with the Department of Child Protection.  He says in his affidavit at paragraph 24:

   “Whilst I do not consider that it is relevant to the current proceedings, in the interests of being transparent I advise that in 2017 I was investigated by the Department for Child Protection.”[1]

   [1] Affidavit of the father dated 9 November 2020 at [24].

5. He goes on to say that in November of 2017 the police attended at the home he shared with the mother following a tip off that he had made an inappropriate comment about a child on the internet.  He discloses at paragraph 26 of his affidavit:

   “I was very upfront and honest with the police officers when they attended at my home and admitted that I had been engaging in conversations in an adult based fantasy chat room and that the conversations were of a taboo nature.  I never referred personally to X in these conversations.”

6. He goes on to detail that once the DCP became involved he cooperated with them, that he was required temporarily to relocate from the family home, and that they undertook an investigation.  He says that he was told that this was standard procedure when an allegation of that nature was made.  He moved in with his mother and remained there for the next eight weeks whilst the investigation continued.  He says that he continued to have regular day to day contact with X during that time facilitated by the mother.

7. He was required to attend a psychologist at the instruction of the DCP.  I note also from the mother’s material that a safety plan was entered into.

8. The father attended upon the psychologist, Mr D, for four sessions, and following that engagement the DCP spoke to him and the mother, told them that they were closing their investigation and that he could immediately return to the family with X and the mother.  The mother deposes in her affidavit material that the relationship ended sometime after that point.

9. The father asserts that he had always been open and honest about that investigation, not only with his new partner, but with his friends, his family, and his work colleagues.  He said that he has been obliged to obtain a ‘Working with Children’ check as a requirement for his employment.  He annexes a copy of that to his affidavit and notes that he is not prohibited from engaging in child related work.

10. The father postulates in his affidavit that part of the mother’s motivation for withholding X might be that she found out that he had been unfaithful to her by communicating with other women over the internet.  He says that there was a specific incident on one occasion when the mother became angry with him and assaulted him in front of the child.  That was as a result of an argument in which she confronted him over online chats that he had been having with other women.

11. The father asserts that during the course of their relationship the mother’s mental health was never particularly stable, that she would isolate herself after X was born and would only spend time with her mother or her sister.  He said that she had bad depression and would sometimes simply sit on the couch all day leaving X to play on her own.

12. The father further expresses some concern that once the mother entered a new relationship after they had been separated for about 18 months, her new boyfriend moved in with her.  That person is called Mr J.  He has met Mr J on a few occasions.  He states that as soon as Mr J moved in with the mother all of a sudden he noticed that the mother was leaving it up to him to take X to and from child care.  He deposes that he is concerned about the level of unsupervised care of X that the mother has afforded to his person, about whom he knows effectively nothing.

13. As I have noted, the father lives with his partner who is a qualified public servant.  He says that his partner is also permanently employed as a administrative officer with the Employer K. 

14. The purpose of bringing these matters to my attention is to assure the Court that he is in a stable and healthy relationship with his new partner, and that there are no reasons for any concern with respect to the safety and wellbeing of the child on that account.  He stresses that they live on a large property in Town L with a sufficiently large house where X has a bedroom, where there are play areas, and in other words that he can provide an environment which is perfectly suited to a child of her age. 

15. In the mother’s affidavit she gives her account of the relationship between the parties.  She says that, after the DCP allegations in 2017 she called off their wedding that year.  She simply could not go ahead with marrying the father in light of those allegations.  It was her understanding that the father was required by the DCP to continue to see the psychologist, Mr D, and that it was recommended that he attend for more than four sessions.

16. She says that she was told by the father that the psychologist had said that he would have to see him on a regular basis, but that as far as she was aware, from what the father had told her, he did not see the psychologist regularly, as was suggested to him.  She told the father after Christmas in 2017 that she could not continue with the relationship due to her concerns about those allegations and as a result of his cheating.  Whether or not the father had been unfaithful to the mother is not relevant to these proceedings.

17. The mother reports that the father had told her during the course of 2018 and 2019 that he was not able to obtain a DCSI clearance to work with children because of the allegations and the fact that he had not continued to see the psychologist as recommended.  The mother accepts that he has now received such clearance.

18. She says that she constantly voiced her concerns to him about the 2017 allegations and that she was met either with abuse or denial from the father.  He would say things to her to the effect of, “Are you still going on about that?” and “How long has it been?”  The mother asserts that her concern has always been for the safety of the child.

19. On the mother’s version, the father had the child for a maximum of five nights a fortnight but that this was an arrangement with which he was not happy.  She made arrangements to allow the father to have more time and reduced her work hours to accommodate him.  She says one of the problems was that the father would always chop and change that arrangement when it suited him.  Her view was that he was using this as a means of control.

20. She points to the fact that after the father commenced his new relationship he wanted to change the weekends on which he had the child and that, in her view, he became increasingly difficult to co-parent with. 

21. I will not detail much further information about post-separation parenting arrangements at this time, but the mother says that from Christmas 2019 until recently the father had X every second weekend on the weekend that he wanted.  In other words the mother says that she has done her best to try to facilitate the relationship between the father and the child.

1. The mother answers the concerns raised by the father towards her.  I will summarise the account she gives in response to paragraph 36 of the father’s affidavit in the written reasons.

2. With respect to her inability to cope with the child after she was born she acknowledges that she was not as connected to X as she would have hoped.  She took advice from her general practitioner and she was diagnosed as having postpartum depression.  She was offered an antidepressant.  After taking it for a while her anxiety became worse and she found that it did not help her.  She stopped taking it with the assistance of her medical practitioner.  Once she got better she decided to “push herself” and she found that her symptoms decreased.  She says the only time now when she has anxiety is when she receives text messages or emails from the father.  She describes him as having been very controlling and manipulative and believes that, in effect, she was “gaslighted” by him for a period of time. 

3. With respect to the concern expressed by the father with respect to her new partner, Mr J, she says that on occasions the father has asked if Mr J could pick the child up from child care when it was his time with X if he was ill. 

4. With respect to the concerns that the mother has raised regarding child abuse, she says that on 28 September 2020 she picked the child up from child care.  X had been at the father’s house on the previous weekend.  When X was getting changed she said that her bum hurt.  She asked if the child wanted her to have a look.  She looked at X’s bottom and the child said, “Not that bum, my front bum.”  The mother then inspected the child’s genitals and saw that there was nothing visibly wrong on the outside.  There appeared to be no redness or swelling. 

5. On 1 October 2020, when she was at work, she received a telephone call from the child care centre.  The person who rang said that X was displaying some concerning behaviour.  She had been pulling down her pants and going to the toilet stalls when other children were in there.  They had tried to speak to X about it away from the other children but she was not listening and she was kicking.  She was advised that the child care centre said they would have to report that incident.

6. The mother immediately called Suburb M Police Station and asked to speak to an officer in the child protection unit.  She was told that an officer would call her back and speak with her.  She says that she was advised to seek legal advice but to withhold the child until everything was investigated.  She was advised that the police officer would be making a report in relation to the matter and she then called the DCP and informed them of what she was told by the child care centre. 

7. The mother deposes that she was extremely concerned about the call from the child care centre because she had noticed that X had been really withdrawn at home and seemed to be emotionally unstable.  She thought that this might have had something to do with living between two households.  Her observation was that the child would always come back from the father badly behaved, withdrawn and agitated.  It would take about a week for her to get back to normal.

8. She says that at home X had started to touch her private parts on her clothes while she was watching television.  On 2 October 2020, when bathing X, she started getting her clothes on after the bath and getting her dressed.  X apparently said to her, “I get out of the bath and I show my - ”, and the mother said, “Show your what?”, and the child said nothing, but the mother reports she looked down and seemed ashamed.  The mother, quite appropriately, says that she did not push the matter any further.

9. On the mother’s account, the child had started having toilet accidents and that on one occasion, when she was assisting her after such an accident, the child started giggling and acting in a strange way that made her uncomfortable.  The mother reports that the child’s behaviour started getting worse and that she was having random screaming, kicking, crying, scratching and hitting outbursts, which she had never had before.  Sometimes this could be triggered simply by sitting down next to her.

10. There was a further occasion on 22 October 2020 in the evening when the mother says as X was just out of the bathroom and she was helping her get dressed that she helped the child put her top on and that she observed X then bend over, put one of her legs in the air, showing her private parts, and put her hand on her leg, smiling.  When she told the child to put her underpants on she says the child was ashamed.  The mother reports that this incident made her feel very concerned.  For those reasons the mother deposes that she had no choice but to withhold the child from the father for her own safety.

11. She reports that once the child stopped seeing the father the behaviour began to dissipate and she stopped being aggressive.  When she spoke to the person from the DCP she reports that they appeared happy she was withholding the child and suggested to her that the father should only have supervised time.

12. I have received information from the DCP.  I have previously put the parties on notice of this.  I am not going to read at great length about the information from the DCP.  Suffice to say that when the DCP conducted their investigation in relation to child sex related comments on the chat room, they recorded that the comments made by Mr Kaisler included disclosures that Mr Kaisler fantasised about having sexual contact with children and that he showered with the child and got her to wash his penis.

13. It confirms that they regarded the mother as being sufficiently protective with an implemented safety plan, and they referred the father to Mr D.  They received information from Mr D that the father had engaged well in the session and that he did not demonstrate any significant paedophilic interest and that he concluded that the father did not pose a sexual risk to the child.

14. As a result of the most recent notification the DCP has concluded that it was not appropriate to have an investigation or to keep an open file because the mother had withheld the child from the father and there were no protection concerns with respect to Ms Talgo’s care of the child and no concerns for the child’s safety in her care.

15. The South Australia Police (‘SAPOL’) provided information relating to the 2017 incident.  Once again I will paraphrase.  When they conducted an interview with the father under caution he admitted to chatting on line and having conversations that involved fantasising about sex with children.  He also talked about stating, and the inference is, in the on-line chat room that he had X wash his penis.  Mr Kaisler was adamant at that time that the conversation was on one occasion only and was purely fantasy.  He denied any offending involving the child or any other children, and denied having a sexual attachment to children, but was attracted to the taboo or the “kink topic” of father/daughter sex.  He stated that he had viewed material of that nature on line, but that material only involved adults in role play scenarios, and it was viewed from his desktop computer.

Submissions

1. He denied to the police that he might need psychological assistance given the nature of his interest.  He denied having any other similar conversations on line.  The police concluded there was no cause to investigate the matter any further.

2. In the submission of Ms Dansie, the father should have no time, at least until further information is received from SAPOL.  She says that the mother had not previously been aware that the conversations in 2017 had directly referenced X.  The mother has no faith that the paternal grandmother would be able to adequately supervise.  It is too early, in Ms Dansie’s submissions, for time at a children’s contact service to be contemplated, and she stressed the significance of the observations made by the mother. 

3. I note in that regard that the DCP made the observation that X was reported to be exhibiting verbal, behavioural and emotional indicators strongly consistent with sexual harm.  Ms Dansie emphasised that the child’s behavioural problems appear to have abated since she ceased having time with the father.  The mother would not object to the father having Skype calls with the child, but it would have to be at a time convenient to meal times and the child’s activities. 

4. For the father, Ms Elkins submitted that it was appropriate that there be a reintroduction of time each Saturday from 9.00am till 5.00pm.  She submitted that the paternal grandmother has heard the allegations and understands them.  Ms Elkins reminded the Court that the paramount consideration in any orders made in parenting matters must be the best interests of the child, and that the question came down to whether or not there was an unacceptable risk to the child, and I accept that submission.

5. It was submitted to me that there were strong reasons not to make a finding of sexual abuse, although as I have already noted, I am concerned, on this occasion, not with making any findings but with making appropriate orders after an assessment of risk. 

6. Ms Elkins stressed that the length of the 2017 investigation, involving a separation of about eight weeks and four sessions of counselling, and the outcome of that investigation, were matters to which I could have regard and which pointed in favour of it being appropriate to reintroduce the father’s time with the child.

7. The father’s submission emphasised that he has had three years of unrestricted and unsupervised time with the child after the 2017 incident was known to the mother.  I was also reminded that the mother has not obtained any medical examination of the child, and that there is nothing of that nature which might otherwise corroborate the suggestion that there has been sexual abuse.

8. In Ms Elkins’ submission, the 16 week wait that might result as a result of being referred to a child contact service, is unacceptable in all of the circumstances.  There was not, on the basis of the information to hand, enough in the way of an observable risk which should prevent the father from having, at the very least, supervised time.

Consideration 

1. I have taken the submissions of both the solicitor for the father and the mother into account in considering the orders I should make this morning.  With respect to the question of assessing risk at an interim stage, where there are allegations of abuse to a child, the leading authority is that of Deiter v Deiter,[2] where the Full Court said at paragraph 61:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires the prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of impact caused by those events.  In our view the assessment of risk in cases involving the welfare of the children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree, depending on the evidence before the court.”

   [2] [2011] FamCAFC 82.

2. In the later decision of Slater v Light, the Full Court made the following observation:

   “The nature of the risk is best expressed by the term “unacceptable risk”.  It is an evaluation of the nature and degree of risk and whether, with or without safeguard, it is acceptable.”[3]

   [3] [2013] FamCAFC 4 at [37].

3. I have given close consideration to the submissions made by both parties and the evidence that I have before me.  As is made abundantly clear by the authorities, my task is to consider all of the evidence which I find to be reasonably capable of belief and to reach a conclusion based on an assessment of whether or not there is an unacceptable risk to the child. 

4. There are a number of matters which concern me about these allegations.  The first is that the common feature between the father’s comments to SAPOL and his first affidavit filed in these proceedings is that he downplayed the significance of the 2017 incident. 

5. He denied that he would require or that it would be appropriate for him to have psychological assistance.  At paragraph 24 of his first affidavit he quite clearly stated that he took the view that the earlier incident was not relevant to these proceedings.  He appears to have mentioned it only out of an abundance of caution.  Of more concern, in paragraph 26 of his affidavit, he stated that he had never personally referred to the child whilst making his remarks in the internet chat room.  That would appear simply false on the basis of what is reported by SAPOL and the DCP and that I should operate, even on a risk assessment basis without being able to test the evidence, on the basis that that information is false. 

6. The father himself, in his own affidavit, has identified that there were occasions when, in the absence of a complete picture, it might be appropriate to have concerns about with whom a child comes into contact.  And in that regard I refer to his expressed concern about Mr J’s unsupervised contact with the child, about whom nothing adverse is known.  In this case, the child has displayed behaviours which were significant enough to cause the child care centre to call the mother and describe to her in detail and to make a report. 

7. There are the behaviours that the mother has noted and which the DCP has observed are consistent with a child having experienced sexual abuse.  In addition to that, the father has admitted to SAPOL and the DCP in the past that he has fantasised online about sexual contact with children, including his daughter X.  In one sense, this was more than just a fantasy.  It occupied his mind sufficiently to share it with others online.  Also, there is the risk presented by the lack of insight into the gravity of the 2017 incident and the potential implications of it. 

8. There is a risk that the father has in some way sexually interfered with the child.  It is difficult for me to quantify that risk at this stage.  But not being able to put out of my mind the potential implications of the 2017 incident, it is a risk to which I must give considerable weight.  Next, there is a risk that the father will act on previously expressed fantasies if I were to permit unsupervised time with the child at this time.  One would have thought that that risk would possibly be low, given the scrutiny to which these matters are now subject. 

9. Further, there is a risk in the context of supervised time that the child might experience trauma through contact with the father, if it is in fact the case that she has at some time been subjected to sexual interference by him.  There is a risk that the child’s behaviours might, if she were to have personal contact with the father, revert to those matters which have been observed by the mother and deposed to by her in her affidavit.  There is also a risk that there is no substance whatsoever to these allegations and that if I do not permit the father to have time, then, in addition to the hiatus in the relationship which has been going on since late September of this year, the father’s relationship with the child will further be damaged and that that could not possibly be in her best interests. 

10. In terms of balancing those risks, I am required by the Family Law Act 1975 (Cth) (‘the Act’) to give greater weight to the need to protect the child from harm. And that is by virtue of the second of the considerations in s 60CC. I will deal with those considerations when I provide the written version of these reasons. That consideration when it arises outweighs the right of every child to have a meaningful relationship with each of their parents. When considering the invidious task of predicting the likelihood of the occurrence of harmful events and the severity of the potential impact which might be caused by those events, I regret that I am unable to conclude that there is not an unacceptable risk of harm at this stage of proceedings on the information before me.

11. The father will no doubt feel an obvious sense of grievance in relation to this.  I stress that I am not making a finding of fact that the father has sexually interfered with the child.  I am not making a finding of fact that the father has an ongoing paedophilic interest.  I am not making a finding with respect to the father’s character.  I have made an assessment of the risks which I cannot say at this juncture are acceptable.  Had the mother been making the same allegations only on the basis of what happened in 2017, then my assessment may well have been that there was no unacceptable risk. 

12. To the extent that the orders I propose to make cause the father distress or feelings of anger, I would make this general observation which applies particularly to the potential scenario if the father has not, in fact, sexually interfered with X.  All of our actions have consequences.  In some cases, the consequence is that we are called to account for those actions.  When a decision was made by the father in whatever context to move beyond private and secret thoughts to share with an online community his fantasies about sex with children, including his infant daughter, it carried with it the possibility that he would be exposed for doing so and that his motives and proclivities would be subjected to scrutiny. 

13. It carried with it the obvious risk that if it became known it would have the potential to affect; his relationships; his capacity to obtain a clearance permitting him to work with children; and the risk that he would in future be vulnerable to allegations and scrutiny in the event that any young child with whom he was involved made complaints of sexual interference or displayed disturbing signs consistent with it.  Those risks and consequences cannot be attributed to the actions of the mother.  That she now raises them in parenting proceedings cannot be dismissed as an overreaction on her part.

14. The Act places the safety and wellbeing, in other words, the best interests of children, as its paramount consideration.  Where allegations are dealt with at an interim stage without the capacity to test the evidence, the response of the court will often be, as in this case, necessarily but appropriately cautious.  The orders I propose to make are not a punishment of the father.

15. I acknowledge that one of the risks that I must balance into the equation is that the father’s relationship with the child will be interrupted and that this may have, in itself, an effect on her emotional wellbeing.  I am not satisfied that that risk outweighs the other identified risks to the child which require at this stage further investigation.  At this point in proceedings, I have concluded that there is an unacceptable risk to the child if I were to permit her to have time with the father.  The role of a parent entails many responsibilities, some of them arduous.  In circumstances such as this, it is the responsibility of the father to endure, for the time being, what to him will be the obvious hardship of these orders for the sake of what I have in my discretion found to be in the best interests of the child. 

16. The DCP is respectfully requested to attend at court on the next occasion and to reconsider its decision whether or not to conduct an investigation into the allegations made by the mother.  

17. I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 21 January 2021