Kaisler & Talgo
[2023] FedCFamC1F 201
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kaisler & Talgo [2023] FedCFamC1F 201
File number(s): ADC 5442 of 2020 Judgment of: KARI J Date of judgment: 6 March 2023 Catchwords: FAMILY LAW – FINAL ORDERS – Where the matter was listed for a seven day trial and resolved on the first day – Where final orders were entered in to by consent – Where at this juncture the Court is satisfied that the father presents as an unacceptable risk of harm to the child Cases cited: Kaisler & Talgo [2020] FCCA 3596 Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 6 March 2023 Place: Adelaide Counsel for the Applicant: Ms Lindsay Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Stevens Law Counsel for the Independent Children's Lawyer: Ms Horvat Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5442 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KAISLER
Applicant
AND: MS TALGO
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
6 MARCH 2023
BY CONSENT IT IS ORDERED BY WAY OF FINAL ORDERS:
1.That the child X born in 2015 live with the Mother.
2.That the Mother do have sole parental responsibility for the child.
3.That the Father is at liberty to have video call time with the child as follows:-
3.1On each of the child’s Birthday and Christmas Day between 10.00am and 10.30am; and
3.2As and from the date of the Father’s compliance with written confirmation of his enrolment in W Program and one attachment-based parenting course (pursuant to paragraphs 12.3 and 12.4) and confirmation of arranged appointments with Dr N and with P Services (pursuant to paragraphs12.1 and 12.2 hereof) then on one occasion per week on a day to be agreed between 6.00pm and 6.30pm; and
3.3That the Mother is to use her best endeavours to facilitate and not frustrate the video call time.
4.That it is a condition of the continuation of the FaceTime calls that the Mother or her agent is at liberty to:
4.1 be present and within hearing distance during the entirety of the call and
4.2terminate the call in the event of any inappropriate communication occurring.
5.That the FaceTime calls are to be of such duration not exceeding 30 minutes which the child may determine save and except:
5.1as otherwise terminated pursuant to paragraph 4.2 above herein and / or
5.2as otherwise agreed between the parties evidenced in writing.
6.That the Father be at liberty to send the child a letter each month, as well as gifts on special occasions such as the child’s birthday and Christmas.
7.That for the purposes of paragraphs 3, 4, 5 and 6 herein, the Mother shall keep the Father informed of a nominated mobile telephone number and postal address at all times.
8.That the Mother shall forthwith do all things necessary to seek a referral for the child to a Paediatrician for a “full Global Developmental Assessment” with the Mother to be at liberty to provide to the Paediatrician a copy of the Family Assessment Report dated 16 January 2023.
9.That the Mother provide to the Father a copy of the child’s Global Developmental Assessment Report if one is produced by posting same to the Father at Q Street, Suburb R in the State of South Australia or such other address as the Father may advise to the Mother in writing.
10.That the Father be at liberty to receive from the child’s school, the child’s school reports, newsletters and photographs that parents are usually able to receive.
11.That the Father be restrained and an injunction is hereby granted restraining him from attending at the child’s place of education at any time.
12.That the Father shall forthwith take all steps necessary to secure attendance and to engage in therapeutic treatment and or counselling as follows:
12.1At P Services voluntary self-referral program;
12.2With Dr N Psychologist for therapeutic treatment (as has been recommended by the ICL) and shall follow all recommendations made by Dr N as to treatment and frequency of appointments;
12.3W Program to be conducted on a face to face basis;
12.4An attachment based parenting course such as:
12.4.1The Dad Factor;
12.4.2Bringing up Great Kids; or
12.4.3Kids and Dads;
12.4.4Such further or other course as may be agreed between the parties.
13.That at the conclusion of 12 months of therapeutic treatment with Dr N the Father obtain a report from Dr N but in the event that Dr N is unwilling or unable to produce such a report then from Mr S, Clinical Psychologist specialising in Forensic Psychology.
14.That the father authorises Dr N and Mr S to discuss all and any matters required arising from the Father’s therapeutic treatment.
15.That the report referred to at paragraph 13 hereof shall address the following (among any other matter the Treating Therapist or report writer considers to be important):
15.1the Father’s engagement with the Psychologist,
12.2the history given by the Father,
15.3the findings by the Psychologist on the Father’s:
15.3.1presentation and attendance;
15.3.2participation in therapy;
15.3.3development of insight into child protection concerns relating to the Father’s sexual curiosity and behaviour;
15.4prognosis;
15.5recommended future treatment;
15.6whether or not the father suffers from any Psycho-sexual disorder and if so, recommendations as to future treatment;
15.7identification of any risk presented by the father’s sexual curiosity and behaviour, past or present or likely to occur in the future towards any child or any adult, if this is able to be identified;
15.8agreement or otherwise of the Father to engage as recommended and outlining the schedule arranged in relation thereto if such is in place; and
15.9such further or other matter the Clinical Psychologist and or Treatment Provider to the Father considers important.
16.That the Father shall provide to each of P Services and Dr N and Mr S (if he is engaged to write a report) the following documents:
16.1A copy of this Order; and
16.2All DCP source material produced to the Court in this matter; and
16.3All SAPOL source material produced to the Court in this matter; and
16.4The Family Assessment report of Ms T (27 July 2021); and
16.5The Family Assessment report of Ms U (16 January 2023); and
16.6The Psychiatric Assessment of Dr F (15 January 2021); and
16.7The report of Mr D, Y Counselling, (23 January 2018); and
16.8The report of psychologist Ms V (12 February 2023); and
16.9An irrevocable and unfettered Authority which authorises the Clinical Psychologist or other Therapist and P Services to each discuss the Father’s engagement in therapy with the Mother.
16.10The reasons of Judge Heffernan dated 22 December 2020 and
16.11The reasons of Justice Kari given this day.
17.That the Father shall engage in P Services voluntary self-referral programme to completion and shall produce to the Mother a copy of a confirmation report as to the Father’s engagement in and completion of that program.
18.That all engagement by the Father in relation to P Services and Therapeutic Clinical Psychology and the report which is ordered to be obtained at the conclusion of the father’s engagement in not less than 12 months of therapy and including the reporting and provision of information to the Mother, is to be at the sole expense of the Father in all things.
19.That the Father shall, within 10 days of the father’s enrolment in the two parenting courses set out above provide to the Mother a documentary confirmation of his enrolment in same.
20.That the Father shall, within 28 days of completion of each of the two courses referred to above herein, provide to the Mother a certificate of completion in relation to each of the courses.
21.That upon the Father’s compliance with each of the requirements of paragraphs 12 to 20 above herein, the Father is at liberty to invite the Mother to Family Dispute Resolution Centre mediation at a Family Relationships Centre within the community noting that any such mediation may occur on a “shuttle mediation” basis.
22.That the appointment of the ICL is hereby discharged subject to any appeal.
23.That all extant Applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
The matter that comes before me today is a parenting application in relation to the parties' child, X, born in 2015. X is seven years of age. She will be eight this year.
The proceedings were commenced by the father in November of 2020. I will come back to their trajectory before the Court in a moment, however the proceedings have come to a head before me today in the sense that they were listed for trial for a period of seven days. The parties however, with the assistance of their experienced counsel and counsel for the Independent Children's Lawyer (‘ICL’), have been engaged in negotiations across the entire day.
It is now 4.55pm and I am invited to make what is a comprehensive set of final orders in relation to X. Those orders provide for X to live with the mother, whom she has always lived with; particularly after the parties' separation in either late 2017 or early 2018. In addition, the orders provide for the mother to have sole parental responsibility.
The orders provide for the father to have what, on any view, is very limited communication with X. That communication is limited to FaceTime communication at this stage. The father otherwise is going to be permitted by these orders to receive information about the child from the child's school that parents would ordinarily receive.
The orders however go a further step, in the sense that where the child has been having ongoing weekly Skype communication with the father, that is only proposed to continue if the father engages with a range of professional services. The orders are comprehensive and very clear as to what it is the father is required to do, the professionals whom he is required to engage with such that the ongoing weekly communication by Skype is conditional on all of those things being attended to. Otherwise, if the father does not attend to those arrangements, then his communication with the child will be limited to two Skype calls each year, being on each Christmas Day and the child's birthday.
For reasons which will become obvious, I am satisfied that the orders that I have been invited to make are most certainly in X's best interests. I have been invited to make those orders mutually with the consent of the parties and the ICL and it is a credit, I say from the outset, to the legal representatives, particularly counsel for the father today that these orders have been arrived at and that the Court is in a position to bring this matter to a conclusion.
The history and the trajectory of the matter, however bears some comment from me at this juncture.
As I said a moment ago, the proceedings commenced in November of 2020. At the time that the father commenced the proceedings, two significant matters of importance had occurred in relation to this child's life.
The first was that in 2017 the parties, when their relationship remained intact and they remained living together with X, received what can only be described as a surprising knock on the door. That knock was from police officers who attended the home as a consequence of, I suspect, covert surveillance concerning internet or online behaviour which alerted them to the father and the nature of his online behaviour.
It is of some concern to me that in his trial affidavit filed 10 February 2023, the father does not depose to exactly what it is alleged that he engaged in, in relation to that online behaviour. Rather the father dances around what actually occurred on that day instead of indicating the allegations which were made by the police and that which he acknowledged and/or conceded or otherwise denied had occurred. All the father said in his trial affidavit was, at paragraph 28:
28. [In] 2017 the police attended at our home, following a tipoff that I had made an inappropriate comment about a child on the internet.
He goes on to say at paragraph 29:
29. 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 chatroom and that the conversations were of a taboo nature. I never referred personally to [X] in these circumstances.
The father goes on to depose that he was never reported or arrested and no charges were ever laid and that the police investigation did not go any further than that initial conversation. The father goes on to depose that the Department for Child Protection (‘DCP’) thereafter became involved and that as a consequence of the DCP involvement, he was required to temporarily relocate from the family home whilst they completed an investigation.
What I however understand from material that has been produced in concert between the mother and the ICL is that the allegations were not as bland as that which the father's trial affidavit might have had me believe. The allegations were of a very, very serious nature.
The allegation was that the father, in the course of engaging in an online communication in some format, I am told on a phone messaging chat group, the father is alleged to have said to a person in that online chat that he had showered with the child, X - who at that stage would have been no more than say, at best, two and a half years of age. Moreover it was alleged that the father during those discussions stated that he had showered with the child, X, and that he had X wash his penis. Accordingly, this is a very, very serious matter. Particularly given the context in which the father himself deposes they occurred, being an “adult based fantasy chat room”.
While the father in his material dances around that allegation and otherwise denies that he had ever engaged in that behaviour, the fact that these matters came to the attention of police is not something that this Court could or should, to be frank, overlook.
When Judge Heffernan in Division 2 first heard a contested interim parenting application in the matter, wherein the father was promoting time-spending with X, his Honour delivered what are, lengthy and detailed reasons (Kaisler & Talgo [2020] FCCA 3596). In those reasons, his Honour, among other things, concluded that with the limited information that he had before him, the child was at an unacceptable risk of harm if she was to spend time with the father. That being said, his Honour did not come to a concluded view as to whether the child had suffered sexual assault. Rather, his Honour was of the view that on balance, with all of the information before him at that juncture, that there was an unacceptable risk of harm.
I will come back to his Honour's reasons in a moment.
The second issue of significance that occurred in X's life when the proceedings commenced is that some time in 2020 the mother again received what imaginably was a concerning phone call, this time from the child's childcare centre. That phone call alerted the mother to concerning sexualised behaviour that X appeared to be exhibiting at childcare. That behaviour involved a range of concerning behaviours, including pulling her pants down, following children into the toilet and behaviour of that nature. As a result of that communication, the mother says that she then reflected on behaviours that had occurred in her home and subsequent behaviours exhibited by X in her home which, in concert, raised and heightened her concerns.
The mother deposes that, having given the father the benefit of the doubt as to what had occurred in 2017, she became concerned and therefore further raised the matter with the relevant authorities. The mother indicates that she was ultimately advised by DCP, to withhold the child from spending time with the father; an act which they considered was sufficiently protective and resulted in DCP taking no further action and investigations in relation to the concerns raised by the childcare centre.
It is ultimately those two events that led to the proceedings coming before the Court on the father's application filed 10 November 2020. That is, because at that point, the mother had ceased facilitating time-spending between X and the father.
I now return to his Honour Judge Heffernan's judgment, delivered on 22 December of 2020. His Honour's reasons, as I said a moment ago, were extensive and comprehensive. While his Honour at that juncture was mindful that it was an interlocutory hearing and that he was not able to make findings, his Honour proceeded to carefully consider the evidence that was then before him and to come to some conclusions. As I indicated a moment ago, ultimately his Honour's conclusion was that the father, at that juncture, presented an unacceptable risk of harm to X.
Judge Heffernan used what can only be described from my perspective as quite firm words of warning to the father, when, at [63] – [64] of his judgment, his Honour said the following:
63. 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.
64. 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.
As I said, his Honour's words were direct. They were a clear signal to the father that work needed to be done at his end to address the concerns that had been raised before the Court and the conclusion that his Honour had come to on an interlocutory basis that the father presented as an unacceptable risk of harm.
That judgment was delivered by his Honour in December of 2020. It is now however, March of 2023 and with the greatest of respect to the father, very little has occurred at his end to address the very significant concerns that have been raised in the context of these proceedings.
As I said at the outset of these reasons, it is clear to me that the legal representatives today have played a significant role in the resolution of the matter. So much is clear from the submissions made by counsel for the father and the orders that I have now been invited to make.
It is also clear to me that the father's counsel, having been instructed at some point last week, has had the difficult task of giving the father what can only be described as a “reality test” so far as the difficulties with his case. Why, however, it took counsel, at the eleventh hour, to raise those issues before it occurred to the father, particularly in light of his Honour's judgment, is a matter of some significant concern to me. The Court will never know what has happened behind the scenes and why.
I am mindful, from the submissions made by the fathers counsel, that the father was self‑represented for a period of time. However he was represented for a period of nine months following the release of his Honour's reasons.
I am also mindful that during the course of these proceedings, there have been two very extensive family reports prepared. The first prepared by Ms T, a consultant, completed on 27 July 2021 and the second completed by Ms U on 16 January of this year.
Ms T’s report perhaps was more constraining as to outcome from the father's perspective than the more recent report of Ms U. Indeed, Ms T canvassed all of the concerns which Judge Heffernan had highlighted and which were evident from the material that was available to her and the Court.
Ms T ultimately concluded in 2021 that the child X should reside with the mother and that consideration should be given to her having sole parental responsibility and that the father's contact or communication with X be limited to a letter each month as well as on special occasions such as X's birthday.
Importantly, because it is reflected in the orders that I am now being invited to make, Ms T made a recommendation that the father engage with P Services in relation to his sexual proclivities. That recommendation however was not ever taken up by the father.
While counsel for the father, in her submissions today has attempted to explain why various things have and have not taken place at the fathers end, at the end of the day, the father is responsible for his own actions and inaction. The recommendations were clear in the report, just as the opinion and conclusion of Judge Heffernan was clear in the reasons he delivered in December of 2020.
I have read the material that has been filed in these proceedings for trial purposes. As I said earlier, it concerns me that the father is not on oath with any detail as to what it is that occurred in 2017. There are different versions in different records that are before the Court but I have no understanding from the father in his own words as to what he admits he did engage in, beyond understanding that he denies that it involved anything in relation to X. That being said, the records that have been produced do not bear out that denial, particularly the South Australian Police (‘SAPOL’) record, which records that which the father disclosed to the SAPOL officers.
With all of that in mind and bearing in mind my comments that very little has changed since Judge Heffernan delivered his reasons in December 2020 wherein he concluded that at that juncture, the father presented an unacceptable risk, it is not difficult for the father to understand firstly, presumably from the advice he has received from his counsel, but now hearing it from me, that I too am of that view given the evidence before the Court at this juncture, while not making findings as to what occurred in 2017, nor what occurred in 2020 and/or whether that was as a result of any sexual abuse perpetrated by the father towards X. I however remain satisfied that on the evidence before the Court, the father presents as an unacceptable risk of harm to X.
As I say, the orders provide for a range of work to be done by the father. It will be a matter for him if, in the future, he is able to satisfy the Court that he no longer presents an unacceptable risk of harm to X. That day may or may not come to pass, but the ball is well and truly in the father's court, where it has been for some significant time.
Despite the fact that I am content that these orders do provide for X's best interests and for her needs to be met, as they have always been met by the mother, there is another significant factor that has exercised my mind and that is that it is X's best interests for these proceedings to be brought to a conclusion.
For those reasons, I am more than satisfied that these orders are in X’s best interests and I am prepared to make those orders today.
I now make orders in terms of the minute of order as amended and signed by me today.
Note: These reasons have been corrected from the transcript. Grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read. These reasons should also be read in conjunction with the transcript of the hearing in circumstances where the court was asked to make orders by consent and the terms of the proposed orders were canvassed with the parties.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 29 March 2023
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