Keane & Keane
[2020] FamCA 99
•8 May 2020
FAMILY COURT OF AUSTRALIA
| KEANE & KEANE | [2020] FamCA 99 |
| FAMILY LAW – CHILDREN – Best interests – spend time arrangements for child – allocation of parental responsibility – father seeks shared parental responsibility and build-up of time with child from supervised to unsupervised time following a review – mother seeks sole parental responsibility and that child have no time with father – where mother makes allegations that child has been sexually abused by the father – where mother makes allegations of family violence and that child has been exposed to family violence – where mother alleges father presents an unacceptable risk of harm to child – where father has not spent time with child since child was eighteen months old – where father does not present an unacceptable risk of harm to the child – where the court must balance the risk of the mother’s parenting capacity diminishing if the child has a relationship with the father with the benefit to the child of this relationship – where therapeutic assistance may be required by the mother – orders made for the mother to have sole parental responsibility for the child and for the child to spend supervised and ultimately unsupervised time with the father – effect of COVID-19 on orders for supervised time. |
|
| A & A (1998) FLC 92-800 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC (2007) 162 FCR 466 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 Marra & Marra (Unreported, Full Court of the Family Court of Australia, 8 September 1993) Moose & Moose [2008] FamCAFC 108 Russell v Close (Unreported, Full Court of the Family Court of Australia, 25 June 1992) Sampson and Sampson (1977) FLC 90-253 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 U v U (2002) 211 CLR 238 Patrick Parkinson, “Possibilities, probabilities and the standard of proof in determining an unacceptable risk of sexual abuse” (2015) 29 Australian Journal of Family Law 1 |
| APPLICANT: | Mr Keane |
| RESPONDENT: | Ms Keane |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| FILE NUMBER: | LNC | 306 | of | 2018 |
| DATE DELIVERED: | 8 May 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | McEvoy J |
| HEARING DATE: MENTION (WRITTEN SUBMISSIONS): | 18, 19, 22, 23 July, 12, 13, 14, 15, 16, 29, 30 August, 3 September, 19 November 2019 and 26 March 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Turnbull |
| SOLICITOR FOR THE APPLICANT: | Bishops Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Lewis |
| SOLICITOR FOR THE RESPONDENT: | Rae & Partners Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Murray & Associates |
Orders
The mother have sole parental responsibility for the child.
The child live with the mother.
That within seven days of the re-opening of the B Contact Service (“BCS”) each party contact the BCS to undertake its assessment procedures.
The child spend time with the father gradually progressing as follows:
(a)for eight fully supervised one hour visits at the BCS or as otherwise ordered on a weekly basis by way of reintroduction with specific days and times as proposed by the BCS or otherwise, then;
(b)for eight fully supervised two hour visits at the BCS or as otherwise ordered on a weekly basis by way of reintroduction with specific days and times as proposed by the BCS or otherwise, then;
(c)for eight semi-supervised visits for four hours at the BCS or as otherwise ordered on a weekly basis with specific days and times as proposed by the BCS or otherwise, then;
(d)from 2:30 pm until 5:00 pm each Wednesday and from 10:00 am until 3:00 pm each Saturday for a period of six weeks, then;
(e)from 2:30 pm until 5:00 pm each Wednesday and from 9:00 am until 5:00 pm each Saturday for a period of six weeks, then;
(f)from 2:30 pm until 5:00 pm each Wednesday and from 3:00 pm Friday until 5:00 pm Saturday each alternate weekend for six weeks, then;
(g)from 3:00 pm Friday until 5:00 pm Sunday and each alternate weekend thereafter and from 2:30 pm until 5:00 pm each Wednesday in the off week.
Once the child commences school the child spend time with the father as follows:
(a)in week 1 – from 3:00 pm Wednesday to 9:00 am Thursday with the father or his agent to collect the child from and deliver the child to her school at the commencement and conclusion of the father’s time; and
(b)in week 2 – from 3:00 pm Friday until 9:00 am Monday, extending to 9:00 am Tuesday in the event of a student free day or long weekend, with the father or his agent to collect the child from and deliver the child to her school at the commencement and conclusion of the father’s time;
(c)for one half of all mid-term school holiday periods.
For the purposes of changeover, unless otherwise outlined in these orders, changeovers occur at the BCS or in the event the Service is not available then outside the B Town Police Station by the parties or their agents unless otherwise agreed between the parties in writing.
Neither parent shall abuse, demean or belittle the other party or members of the other party’s extended family in the presence or the hearing of the child.
Each party shall keep the other informed as soon as practicable of any significant health or educational issues which impact on the child while she is in their care.
In the event of a medical emergency with regard to the child, the parent who has first knowledge of it shall forthwith notify the other parent.
Each party shall keep the other informed at all times as to their current mobile telephone number.
Both parties are permitted to attend any and all kindergarten or school functions or events which allow for parental attendance, including but not limited to concerts, school assemblies, sports day and parent/teacher or social functions.
Both parties are permitted to attend all extra-curricular activities in which the child participates.
This order acts as an authority for any school or childcare facility which the child attends to provide information to both the mother and the father including but not limited to school reports, newsletters, photograph forms and updates.
The parents will communicate with each other in relation to the child as follows:
(a) via telephone for any urgent matters;
(b)via SMS for non-urgent matters which requires a response within 24 hours; or
(c)via email for all non-urgent matters.
AND THE COURT DIRECTS THAT:
The parties’ legal representatives bring s 121 of the Family Law Act 1975 (Cth) and paragraphs 435-439 of the Court’s reasons for judgment to the attention of the parties at the time they advise the parties of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keane & Keane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: LNC306/2018
| Mr Keane |
Applicant
And
| Ms Keane |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are the Applicant father, Mr Keane (“the father”) and the Respondent mother, Ms Keane (“the mother”). The proceedings concern parenting arrangements for the one child of the relationship, X born … 2016 (“the child”), currently three and a half years of years of age. Following separation in late April or early May 2018 the child has lived with the mother. The father has not spent any time with the child since May 2018.
In issue is parental responsibility and spend-time arrangements for the child and, of critical relevance to these issues, whether the father poses an unacceptable risk of harm to the child. In particular, the hearing of the matter concentrated on allegations made by the mother that she witnessed the father engage in sexual abuse of the child on four separate occasions.
During the proceedings the mother recounted a history of physical and sexual violence, abuse and control perpetrated by the father against her throughout the relationship. The controlling behaviours of the father were alleged to have also included financial control and social isolation, characterised by restricting the mother’s access to money, to mobile telephones, and to other electronic devices.
By reason of the allegations that she makes the mother contends that the father poses an unacceptable risk of harm to the child, and accordingly that the Court should make orders that she have sole parental responsibility for the child, and that the child live with her and spend no time with the father. In the event that the Court does not find that the father poses an unacceptable risk to the child, the mother says that the Court should nonetheless refrain from making orders for the child to have time with the father, based on the harmful impact that having to facilitate time between the father and the child would have on her, and thus on her capacity to parent the child.
For his part the father emphatically rejects the allegations made by the mother that he sexually abused the child. The father also contests the history of family violence recounted by the mother, save for one instance where he grabbed the mother’s handbag and in relation to which he pleaded guilty to one count of common assault.
The father contends that he does not pose an unacceptable risk to the child. At the conclusion of the trial he proposed a regime of reintroduction into the child’s life by way of supervised time, with a review to occur after about 20 weeks, or longer if necessary, and a movement to unsupervised time subject to the outcome of such a review. In effect the father proposes that interim orders be made in relation to time with the child because the child has not seen him for so long and he must effectively recommence his relationship with the child at “ground zero”. His position accepts that the child should live with the mother, but he contemplates time gradually increasing to a four night per fortnight arrangement by the time the child commences school, presumably in January 2022. He says that he and the mother should have equal shared parental responsibility for the child.
In the event that the Court does find that the father poses an unacceptable risk of harm, the father says that the Court should nonetheless make orders for ongoing supervised time, however there are significant questions as to the feasibility of this. The father deposed to concerns for the mother’s mental health, and that the child may be at risk of emotional harm in her care, however this aspect of his case was not pressed in final submissions and I have taken it to be abandoned.
The Independent Children’s Lawyer (“ICL”) is largely supportive of the proposals of the mother in the event that the father is found to pose an unacceptable risk of harm to the child. If the Court does not make a finding that there has been family violence or of unacceptable risk against the father, the ICL’s proposal provides for interim orders with respect to time with the father allowing for the reintroduction of the father into the child’s life, with a review at the expiration of six months’ time. In this respect, and assuming no finding of unacceptable risk, the ICL and the father are broadly in agreement as to the regime which should be put in place.
The central question in the case therefore is the existence and magnitude of the risk that the child may be physically and sexually abused by her father. This is the fundamental matter to be taken into account in determining the time and parental responsibility arrangements to be put in place going forward. It requires careful consideration of the evidence in relation to the allegations the mother has made about the abuse: psychological, physical and sexual, that the father has perpetrated upon her and the child, and the making of a projection about the level of risk to which the child may be exposed going forward.
As will become apparent, I cannot confidently make a finding that the child has been sexually abused. Further, having regard to all of the evidence, I consider that the possibility that she has been sexually abused is low. I am, however, prepared to make positive findings that some (although by no means all) of the mother’s allegations of family violence directed at her by the father have taken place. Notwithstanding my findings as to the commission of family violence against the mother, insofar as the wider issue of the best interests of the child is concerned, I do not consider that there is an unacceptable risk that the child will be exposed to psychological, physical or sexual abuse if she is to spend time with her father. The episodes of family violence directed to the mother which I am prepared to accept have occurred, although serious, are not such as to make it appropriate in all the circumstances for a finding of unacceptable risk, preventing the child from having a meaningful relationship with her father. I do consider, however, that in light of these and other matters, an order that the parties have joint parental responsibility would not be workable.
Insofar as the mother says that, even in the event that there is not a finding of unacceptable risk, there should be no orders for the child to have time with the father because of the harmful impact that having to facilitate such time would have on her capacity to parent the child, I am unable to accept that in all the circumstances this would provide an appropriate basis for orders that the child have no time with her father. In particular, I do not consider that there is sufficient evidence that the mother’s distress at having to facilitate the child having time with the father would so adversely affect her parenting of the child that it would be in the best interests of the child for the mother not to be put through this ordeal and the child have no time whatsoever with her father.
Accordingly, for the reasons that follow, there will be orders for the mother to have sole parental responsibility, for the child to live with the mother, for the child to spend supervised time with the father on a gradually increasing basis, moving to unsupervised and ultimately to overnight time, and for ancillary matters. Notwithstanding the father’s concession in final submissions that there be a review after a period of approximately five months before moving from supervised to unsupervised time, which proposal is supported by the ICL, I do not consider that it is desirable or necessary to make interim orders on this basis and to conduct such a review. To do so would be productive of no more than further disputation between the parties, for little apparent gain, and it would not be in the best interests of the child. At the commencement of the trial the father was seeking final orders, and the trial was conducted as a final hearing. It was only in closing submissions that the possibility of making interim orders was ventilated. The Court has a fundamental obligation to consider the needs of the child and the impact that the continuation of the proceedings may have on the child: s 69ZN of the Act. I consider that the best interests of the child will be served by the making of final orders which will enable the parties and the child to move forward with their lives on a settled basis, adapting as necessary to these new arrangements.
Background
The mother was born in Country C on … 1985 and is in Australia on a partner visa by virtue of her marriage to the father. She lives in the B Town area with the child, and is employed on a casual basis.
The father was born in Australia on … 1986. He is an Australian citizen. The father is a self-employed tradesman who does subcontracting work for the paternal grandfather and other tradesmen. The father currently resides in the B Town area at the same address as the paternal grandfather.
Both the mother and father and their respective families are practising Christians. The father is part of one congregation in B Town. Since separation, the mother has been part of another congregation.
The parties were married in Country D in April 2014 where the mother was working as an educator and, save for the period of several months immediately following their marriage and when the mother returned to her home country for a period during the marriage, they have resided in the B Town area.
The parties separated in about April or May 2018 when the child was eighteen months old. The mother alleges that this occurred after she witnessed the father sexually abuse the child, and after significant family violence had been committed by the father on the mother.
The father suffers from a bipolar disorder and receives ongoing treatment for depression. He takes medication to manage these conditions. There is some disagreement between the parties as to the extent to which the father manages these conditions and reliably takes his mediation, but this matter was not explored in any detail at trial and was not the subject of final submissions.
History of Proceedings
The father is the applicant in these proceedings, having filed an Initiating Application in the Launceston Registry of this Court on 22 May 2018 in circumstances where he was spending no time with the child. In that application the father sought final orders for equal shared parental responsibility, and that the Court make orders for live-with and spend-time arrangements, although he did not particularise how a regime might work. He also sought interim orders that the parties each be restrained from removing the child from the Commonwealth, that the child be placed on the Airport Watch List, and that the Registry Manager of the Court hold any passport of the child in safe custody. The father’s interim application was ultimately discontinued.
On 19 July 2018 the mother filed a Response to Initiating Application seeking final orders providing for the child to live with her and spend no time with the father, or in the alternative that the child have supervised time with the father, or in the further alternative that the child have time with the father as ordered by the Court. She also sought orders for sole parental responsibility.
On 28 June 2019 the father filed an Amended Initiating Application proposing three alternative regimes for live-with and spend-time arrangements, based on different factual findings that might be made by the Court. The first regime was based on the Court making findings that neither party posed an unacceptable risk to the child. In that event, the father proposed that the child live with the mother and spend increasing time with him commencing with one hour per week supervised time and graduating to a four night each fortnight arrangement by the time the child commences school. In the event that the Court made findings that the father does not pose an unacceptable risk of harm to the child, however found that the child would be at an emotional risk in the mother’s care, the second regime proposed by the father provided for the child to live with the father and to spend time with the mother, conditional upon her engaging in therapeutic counselling to address the issue of her supporting the child’s ongoing relationship with the father. The final regime proposed by the father was based on the Court making findings that the father posed an unacceptable risk of harm to the child and provided for the child to live with the mother and to have ongoing supervised time with the father of two hours each alternate month. Each alternative regime proposed by the father provided for the parties having equal shared parental responsibility.
By the time the matter came on for final hearing the father was seeking orders substantially in the same form as his Amended Initiating Application filed on 28 June 2019, as confirmed in his Case Outline filed 15 July 2019. In the mother’s Addendum to Case Outline filed 17 July 2019 for the purposes of the final hearing, she sought orders for the child to live with her and spend no time with the father, and that the father have no communication with the child save for that he be at liberty to forward letters, card and gifts on one occasion per year, and to attend the child’s school once per year to speak with the child’s teacher or school principal. She also sought orders that she have sole parental responsibility.
The final hearing commenced on 18 July 2019, having been set down (wholly unrealistically it must be said) for four days. Ultimately, however, the hearing did not conclude until 19 November 2019, altogether occupying some 13 hearing days during that period. The prolongation of the hearing was caused by the need to interpose several witnesses, including the paternal grandmother due to a terminal diagnosis, the need to accommodate witnesses giving evidence from overseas, and, while no criticism is made of this, the heavy reliance of the mother and the mother’s sisters on a Court ordered interpreter. This last matter, more than any other, caused the trial to consume far more time than must have been the subject of consideration when the matter was originally set down. The fact that the final hearing had been listed for only four days and then was allocated to an interstate Judge made it difficult for the Court and counsel to accommodate the continuation of the trial in July 2019 after the initial four days.
The father, as the applicant, opened his case on the first day and was cross examined. Due to the temporary availability in B Town of an interpreter and the desirability of counsel for the father having had the opportunity to cross examine the mother before the single experts were called, the parties submitted that it was necessary to interpose the mother on the second day of the hearing at the conclusion of cross examination of the father. In the circumstances I agreed to this course, and the mother was interposed on 19 July 2019.
On 23 July 2019, the fourth day of the final hearing, and while cross examination of the mother by counsel for the father was continuing, it became necessary and the parties agreed to interpose the family consultant, as this was her last day at work before commencing six months leave. After the family consultant gave her evidence the matter was then adjourned part-heard until 12 August 2019 for a further two days, which became five days.
On 6 August 2019 the father filed an Application in a Case seeking that the paternal grandmother (who was a witness for the father) be permitted to give her evidence by telephone from the B Town Hospital, and that the mother facilitate urgent time between the paternal grandmother and the child, to take place at the B Town Hospital. This was in circumstances where, as deposed to by solicitors for the father in an affidavit affirmed 6 August 2019, the paternal grandmother had been diagnosed with Leukaemia and was advised that she had only four to six weeks to live. It was said to be unlikely that she would be able to leave the hospital. In these circumstances it was also submitted that the paternal grandmother ought to be permitted to give her evidence at the earliest possible time, and that she be interposed during the mother’s evidence.
I heard this application when the trial recommenced on 12 August 2019. Counsel for the father submitted that it was the paternal grandmother’s dying wish to give evidence and that she was in a position to give relevant evidence. The B Town Hospital was able to make appropriate arrangements and so I directed that the paternal grandmother be interposed and that her evidence be taken de bene esse from the hospital. This ultimately took place on 13 August 2019.
The father’s application for time between the paternal grandmother and the child was initially opposed by the mother, and submissions were made in respect of this, also on 12 August 2019. The father agreed to a restraint on him or any other member of the paternal family being present at the hospital at the relevant time. A Court appointed Family Consultant and the mother’s support worker were available to supervise the time, and the mother and one of her sisters were able to be in the hospital at the relevant time (although not in the same room). With these arrangements in place the mother ultimately acceded to the application and orders were made by consent on 13 August 2019. Time between the paternal grandmother and child went ahead on 15 August 2019 at the B Town Hospital, supervised by the Family Consultant and the mother’s support worker. Sadly, the paternal grandmother passed away shortly thereafter.
On 14 August 2019, day seven of the trial, the ICL made an oral application with the consent of the parties to interpose the single expert consultant psychiatrist, Dr E, as he would otherwise have been unavailable the following week. In the circumstances I acceded to this application also. Cross examination of the mother recommenced later that day, and her evidence ultimately concluded on 15 August 2019.
On 16 August 2019, day nine of the final hearing, the father’s final witness, Mr F, gave evidence. The matter was thereafter adjourned part heard until 29 August 2019 for the balance of the mother’s case.
The mother’s witnesses were her sister Ms G, who lives in Country K but was visiting the mother in B Town at the time; her sister Ms H, who lives in Country L; and a third sister, Ms J, who lives in Country C. They were all to give evidence on 29 and 30 August 2019. Regrettably, on both days, Ms G was unwell and, although she made attempts to give her evidence, both over the telephone and in Court, she was ultimately unable to do so. On 30 August 2019 I again made orders adjourning the proceedings part-heard until 3 September 2019 when Ms G, now the mother’s final witness, was able to give her evidence by way of video-link between the Launceston and the Melbourne registries of the Court.
On 30 August 2019, I made orders requiring counsel for the parties and the ICL to file written closing submissions, which they did over the course of the following months. I heard oral submissions in closing in Launceston on 19 November 2019, an earlier date not being able to be accommodated by counsel or the Court.
Proposals of the Parties
At the conclusion of the trial the ICL proposed as follows:
(a)The mother have sole parental responsibility for the child;
(b)The child live with the mother.
If the Court finds:
a)The father sexually abused the child and/or;
b)Abused or perpetrated serious family violence on:
(i)The mother and/or;
(ii)The child; or
c)There is an unacceptable risk that the father has so abused or perpetrated serious family violence on the child and/or the mother;
(c)That there be no orders for the father to spend time with or communicate with the child.
If the Court does not make findings of abuse and/or family violence or unacceptable risk as referred to above:
(d)That until further order the father spend supervised time with the child at the B Contact Service for up to two hours per fortnight with the Contact Centre to set specific day and time from time to time.
(e)That within seven days of the making of this order each party contact the B Contact Service to undertake its intake assessment procedures.
(f)That at the expiration of six months from the making of this order the matter be listed for a Directions Hearing before a Registrar of the Court for consideration of any further listing or Trial Directions for Final Orders as to the question of time and communication between the father and the child.
Overseas travel by the mother with the child:
(g)That the mother be and is hereby restrained from relocating with the child from Australia to any overseas location without the written consent of the father first had and obtained or an order from an Australian Court of competent jurisdiction.
(h)That the mother have leave to travel with the child out of Australia for up to six weeks once per year subject to the following conditions:
a)That at least forty-two days prior to leaving Australia the mother:
(i)Provide such bond or other security as this Court determines on the basis that the same be refunded and/or be released upon evidence of the return of her and the child to Australia;
(ii)Provide to the father a copy of the travel itinerary and evidence of paid return airfares;
b)That if the father is spending time with the child that the father have make-up time.
(i)That the father execute any passport application(s) for the child where necessary and failing his signing the Registrar be authorised to sign on his behalf and that the father release any passport held for the child to the mother.
The father’s case changed in certain respects during the trial, and in final submissions he no longer pressed his position that the mother presents a risk of emotional harm to the child. Nor did he seek a change of residence in the event that there was not a finding of unacceptable risk. In his closing submissions filed 14 November 2019 the father confirmed that he was seeking the following orders:
Option 1: On the basis that there is a finding:
i.That the father does not pose an unacceptable risk to the child; and
ii.That the child should primarily live with the mother:
(a)That the parties have equal shared parental responsibility for the child.
(b)That the child live with the mother.
(c)That until further order the child spend time with the father gradually progressing as follows:
a)For six fully supervised one hour visits at the B Contact Service (“BCS”) on a weekly basis by way of reintroduction with specific days and times as proposed by the BCS, then;
b)For eight fully supervised two hour visits at the BCS on a weekly basis by way of reintroduction with specific days and times as proposed by the Centre, then;
c)For six semi-supervised visits for four hours at the BCS on a weekly basis with specific days and times as proposed by the BCS,
That there be a Review and that it be noted that the father anticipates that his time with [the child] will progress as follows:
d)From 2:30 pm until 5:00 pm each Wednesday and from 10:00 am until 3:00 pm each Saturday for a period of six weeks, then;
e)From 2:30 pm until 5:00 pm each Wednesday and from 9:00 am until 5:00 pm each Saturday for a period of six weeks, then;
f)From 2:30 pm until 5:00 pm each Wednesday and from 3:00 pm Friday until 5:00 pm Saturday each alternate weekend for six weeks, then;
g)From 3:00 pm Friday until 5:00 pm Sunday and each alternate weekend thereafter and from 2:30 pm until 5:00 pm each Wednesday in the off week;
(d)That once the child commences school the father spend time with the child as follows:
a)In week 1 – From 3:00 pm Wednesday to 9:00 am Thursday with the father or his agent to collect the child from and deliver the child to her school at the commencement and conclusion of the father’s time; and
b)In week 2 – From 3:00 pm Friday until 9:00 am Monday, extending to 9:00 am Tuesday in the event of a student free day or long weekend, with the father or his agent to collect the child from and deliver the child to her school at the commencement and conclusion of the father’s time;
c)For one half of all mid-term school holiday periods.
(e)That for the purposes of special occasions that these be shared and alternated each year as agreed between the parties.
(f)That for the purposes of changeover, unless otherwise outlined in these orders, changeovers occur at the BCS or in the event the Service is not available then outside the B Town Police Station by the parties or their agents unless otherwise agreed between the parties in writing.
(g)That neither parent shall abuse, demean or belittle the other party or members of the other party’s extended family in the presence or the hearing of the child.
(h)That each party shall keep the other informed as soon as practicable of any significant health or educational issues which impacts on the child.
(i)That in the event of a medical emergency with regard to the child, the parent who has first knowledge of it shall forthwith notify the other parent.
(j)That each party shall keep the other informed at all times as to their current address and telephone number.
(k)That both the mother and the father are permitted to attend any and all school functions or events which allow for parental attendance, including but not limited to concerts, school assemblies, sports day and parent/teacher or social functions.
(l)That both parties are permitted to attend all extra-curricular activities that the child participates in.
(m)That this Order acts as an authority for any school or childcare facility which the child attends to provide information to both the mother and the father including but not limited to school reports, newsletters, photograph forms and updates.
(n)That the parents will communicate with each other in relation to the child as follows:
a)via telephone for any urgent matters;
b)via SMS for non-urgent matters which requires a response within 24 hours; or
c)via email for all non-urgent matters.
Option 2: On the basis that there is a finding:
i.That the father does pose an unacceptable risk to the child:
(a)That the father and the mother have equal shared parental responsibility for the child.
(b)That the child live with the mother.
(c)That the child spend time with the father as follows:
a)For two hours each alternate month at the BCS with specific days and times to be determined by the Service;
b)That the Father be permitted to forward gifts and/or cards to the child three times per year and the Mother facilitate these items being passed on to the child.
(d)That the Mother provide to the Father updated photographs of the child every 6 months to be sent to the father’s address by post.
The father also seeks that the mother be restrained from removing the child from the Commonwealth, particularly to a non-Hague Convention country such as Country C. However his position in final submissions was that the question of travel out of Australia is a matter which can be reviewed if and when the mother is financially in a position to travel overseas and a full travel plan is known.
Insofar as the father’s proposed orders are interim in nature and contemplate a review after about 20 weeks, the father’s position is that the review should be conducted by the ICL. The question for the review would be whether the child’s time with the father should increase, and whether it should move to unsupervised, including overnight, time. The father says that if the question of the nature of the father’s future unsupervised time requires a judicial determination, then the matter should come back before the Court as presently constituted for resolution. It is said that because of the exacting nature of the hearing, and my knowledge of the history of the matter, it would not be in the child’s best interests, nor the interests of the parties, for a differently constituted Court to determine whether the father’s time should advance beyond a supervised regime.
In closing submissions filed 28 October 2019, the mother confirmed she was seeking the following orders:
(a)That the mother have sole parental responsibility for the child.
(b)That the child live with the mother.
(c)That there be no orders for the father to spend time or communicate with the child.
(d)That subject to order (e), below, the mother be and is hereby restrained from relocating permanently with the child from Australia to any overseas location without an order from a court of competent jurisdiction first had and obtained.
(e)That the mother have and is hereby provided with leave to travel with the child out of Australia for up to six weeks, whether in one block of time or several blocks of time in any one calendar year subject to her providing such bond or other security as this court determines on the basis that the same be refunded or the mother released from that security upon evidence of the return of her and her child to Australia, and this order shall be authority to any Australian, International or overseas Government Agency, Department, or Service to allow, permit, and facilitate such travel and issue any visa, or other permission for the purposes of that travel.
(f)That the father, where necessary, execute and return to the mother’s legal representatives any passport application for the child provided by or on behalf of the mother within 14 days of being requested to do so and in the event of him failing to do so, sufficient evidence of which shall be advice of same by the mother’s legal representatives, the Registrar of the Court is authorised to sign on his behalf, and that the father release any existing passport held for the child in his possession or control to the mother.
Counsel for the mother submitted orally in closing that the Court should not entertain the making of interim orders of the kind proposed by the ICL and the father, with a review to occur after five months or thereabouts of supervised time. It was contended on behalf of the mother that such a regime would unnecessarily prolong the litigation, would be productive of great uncertainty, and indeed would be a recipe for disaster. The mother’s position is that if, in the future, once the child is of an age to self-protect and self-report if necessary, the father could make another application. In this sense she says that the door would not be finally closed on the possibility of the child and the father having a relationship. Insofar as the mother’s application, in final submissions, that she be allowed to travel overseas with the child is concerned, she does not accept that this issue should be deferred pending a specific overseas travel proposal.
In March 2020, when these reasons for judgment were well advanced, the current situation relating to COVID-19 caused the closure of many contact centres throughout Australia. Having regard to my conclusion that the child should commence having supervised time with the father on a gradually increasing basis, and that the only venue contemplated for such supervised time by the ICL and the father in their proposed orders was the BCS, I listed the matter for a case management hearing on 26 March 2020 to explore whether the orders proposed by the ICL and the father remained viable in the present circumstances.
At the further hearing on 26 March 2020 the ICL informed the Court that the BCS had closed that day for an indeterminate period, and that there were no private organisations in B Town that provided a similar service. Both the ICL and counsel for the father indicated that, in these circumstances, if there was to be an order for supervised time, such an order could be made conditional on the BCS reopening and being able to facilitate time, given that no other alternatives had been put forward.
In response to this I indicated that it may be desirable for the parties to take instructions from their clients, and I made orders for the filing and service of further evidence and submissions by each of the parties and the ICL in relation to the existence of alternative providers of supervision in the event that the Court were to make orders for the father to spend supervised time with the child for up to two hours per fortnight for the next six months. I acquiesced in the request of counsel for the mother that any submissions made on her behalf deal also with any collateral matters.
On 7 April 2020 the father filed affidavits of three persons known to him and the mother whom he contended would be available and suitable to act as supervisors of the father’s time with the child, pending the reopening of the BCS. The father sought an order that an alternate supervisor to the BCS be permitted, if orders for supervised time were to be made.
On 14 April 2020 the mother filed a further affidavit of her own, and an affidavit of her solicitor. The mother opposes the suitability of each of the persons suggested by the father as candidates to supervise the child’s time with him. She submits that the affidavits filed on behalf of the father cannot go into evidence by consent, and she says that she would wish to cross-examine the deponents of those affidavits. For reasons which the mother and her solicitor explain in their affidavits, the mother is not in a position to nominate any alternate supervisors.
For present purposes it is sufficient to note that the father’s amended application is that, if supervised time is to be permitted, the time be supervised by one of the people he has proposed pending the reopening of the BCS.
The ICL’s position, set out in submissions filed on 20 April 2020, is that as any immediate benefit to the child of supervised time with the father would be limited given that she is young and most probably has no memory of him, the preferable course would be not to permit supervised time to commence until the BCS reopens, if it is a reasonable assumption that it will reopen when the COVID-19 situation has stabilised.
Material Relied Upon At Trial
The father relied upon the following documents:
· Amended Initiating Application filed 28 June 2019;
· Trial Affidavit of Mr Keane filed 28 June 2019;
· Affidavit of Ms M filed 2 July 2019;
· Affidavit of Mr F filed 28 June 2019;
· Affidavit of Mr N filed 3 July 2019;
· Report of Family Consultant dated 14 May 2019;
· Report of Consultant Psychiatrist Dr E dated 15 July 2019;
· Outline of Case filed 15 July 2019;
· Various exhibits tendered at trial including:
o documents subpoenaed from Tasmania Police including two IDM Reports dated 14 May 2018 and 18 May 2018, a case file note of Ms A dated 2 May 2018; written transcripts of two interviews between the mother and Detective Constable O dated 15 May 2018 and 23 May 2018, an email from the mother to certain members of the parties’ religious congregation dated 19 May 2018;
o clinical notes subpoenaed from the P Medical Centre;
o a letter from the mother’s solicitors to the father’s solicitors dated 29 August 2018;
o letters alleged by the mother to be from the Q Hospital, Country C, in the Country C language and English dated 16 February 2019;
o extracts of Facebook Messenger conversations between the mother and her sisters; and
· final written submissions filed 14 November 2019.
The father did not file a response to the mother’s affidavit dated 19 June 2019, however he sought leave to lead viva voce evidence in response on the first day of the trial. I acceded to this course, with the consent of the mother and the ICL.
With respect to the father’s application for urgent time between the child and the paternal grandmother, the father relied on the Application in a Case and cover letter for urgency filed 6 August 2019, and the affidavit of Tianna Freeman, solicitor, filed 6 August 2019.
The mother relied upon the following documents:
· Response to Initiating Application filed 19 July 2018;
· Trial Affidavit of Ms Keane filed 19 June 2019;
· Affidavit of Ms G filed 27 June 2019;
· Affidavit of Ms J filed 1 July 2019;
· Affidavit of Ms H affirmed 19 June 2019;
· Affidavit (Reply) of Ms Keane filed 11 July 2019;
· Report of Family Consultant dated 14 May 2019;
· Report of Consultant Psychiatrist Dr E dated 15 July 2019;
· Outline of Case filed 15 July 2019 together with addendum filed 17 July 2019; and
· various exhibits tendered at trial including:
o the child’s Medical Book from the Q Hospital;
o Thai translation of the Marriage Certificate of the parties;
o Q Hospital case summary with respect to the child dated 9 July 2019;
o Samsung mobile telephone belonging to the mother;
o letter from B Town Hospital dated 8 June 2019;
o clinical notes subpoenaed from the P Medical Centre;
o 2018 diary of the paternal grandmother;
o letter from Dr R, P Medical Centre, dated 13 May 2019;
o two drawings produced by the mother during the trial, purporting to represent the alleged sexual interference by the father with the child in April 2018;
o an extract of a Facebook Messenger conversation between the mother and her sisters;
o certified translation of the Country C language version of the letter alleged by the mother to be from the Q Hospital dated 16 February 2019;
o audio recording of conversations between the mother, the father and members of the parties’ church congregation said to have been made on 10 May 2018;
· final written submissions filed 28 October 2019.
The ICL relied upon the following documents:
· Outline of Case filed 12 July 2019;
· Magellan Response filed 27 March 2017;
· single expert report of Consultant Psychiatrist, Dr E dated 15 July 2019;
· subpoenaed documents provided by:
o Department of Health and Human Services
o P Medical Centre;
o Tasmania Police;
o B Town Hospital;
· final written submissions filed 27 September 2019.
The Statutory Regime and Relevant Principles
Best Interests: Objects, Principles and Considerations
Part VII of the Family Law Act 1975 (“the Act”) is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order, the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VIII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: s 60CA of the Act.
Section 60B(1) of the Act sets out the objects of Part VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Family violence is defined in s 4AB(1) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s 4AB(2) sets out, include an assault, a sexual assault or other sexually abusive behaviour, unreasonably denying a family member financial autonomy, intentionally damaging or destroying property, and preventing a family member from making or keeping connections with his or her family, friends, or culture. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order.
When determining what is in the best interests of the child the relevance of the primary and additional considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597, at [34]. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at [76]-[77] as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Original emphasis)
As the High Court observed in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Parental Responsibility
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child (or other relevant child) or family violence. The presumption may be rebutted where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA of the Act.
When the presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
It will be by reference to s 60CC of the Act that the Court will consider the best interests of the child in the context of determining parental responsibility. Findings about the best interests of the child, having regard to the s 60CC considerations, are required to be made in order to come to a conclusion as to whether the presumption in s 61DA, if it applies, is to be rebutted.[1]
[1]See the discussion in Hardie &Capris [2010] FamCA 1046, [60]-[61] (Murphy J).
Section 65DAC is concerned with the sharing of parental responsibility. Where a parenting order provides that there is to be a sharing of parental responsibility and the exercise of that parental responsibility will involve making a decision about major long-term issues in relation to the child, the order is taken to require the decision to be made jointly: s 65DAC(2). Thus, the persons making the decision will need to consult one another in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue.
Principles in Parenting Proceedings Involving Allegations of Abuse
The central duty of the Court in parenting cases – which is to make orders in the best interests of the relevant child or children – and the mandatory process by which that duty is to be undertaken, does not change because allegations of abuse are made.[2]
[2] M v M (1988) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Donaghey and Donaghey [2011] FamCA 13, [22] (Murphy J).
As the High Court observed in M v M (1988) 166 CLR 69 at 76:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
How a trial judge is to assess disputed allegations of sexual and other abuse is a question which has occupied much judicial and academic attention. Frequently it will not be possible to resolve with certainty whether particular allegations of abuse are made out. That this is so is unremarkable in the present context and was the subject of specific attention by the High Court in M v M (at 76) in a much cited passage:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
(Citations omitted)
Where one parent alleges that the other has engaged in the sexual abuse of a child it is for the Court to make an assessment of the relevant facts and conduct the fact finding exercise by reference to the civil standards of proof. Again, as the High Court said in M v M (at 76-77):
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[3]
(Citations omitted)
[3] See also the observations of the Full Court in relation to the unacceptable risk test propounded by the High Court in M v M, which is authoritative in this jurisdiction, in B v B (1993) FLC 92-357 at 79,778 (Fogarty, Baker and Purvis JJ). It is to be noted that these principles are applicable to all allegations of risk of harm, including family violence. They are not confined to allegations of risk by reason of sexual abuse. See, in this respect, A v A (1998) FLC 92-800, at 84,994-84,995 (Fogarty, Kay and Brown JJ).
In Fitzwater & Fitzwater [2019] FamCAFC 251, at [13]-[15] Strickland and Aldridge JJ referred to parts of this passage, and noted the observations of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 at 82,713-82,714, approved by the Full Court in Napier v Hepburn (2006) FLC 93-303 at 81,115 and Johnson & Page (2007) FLC 93-344 at 81, 888-81,889, that:
… the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
How the Court is to go about assessing whether there is an unacceptable risk of sexual abuse or risk of harm to the child involves, on the one hand, making findings of basal facts on the evidence before the Court and, on the other, using such facts as part of the predictive exercise in making findings about the possibility of the wider issue, that is any risk of harm posed to the relevant child or children which inform the parenting orders needed to resolve the dispute.[4] The basal facts found, assessed in the light of all other relevant matters, form the factual substratum for an assessment of the unacceptability or otherwise of the risk.[5]
[4] Fitzwater & Fitzwater [2019] FamCAFC 251, [129] (Austin J). Although his Honour was in the minority, his observations in this regard are, with respect, consistent with M v M and with the majority in Fitzwater & Fitzwater: see at [13].
[5] See also, in this respect, the useful discussion in Patrick Parkinson, “Possibilities, probabilities and the standard of proof in determining an unacceptable risk of sexual abuse” (2015) 29 Australian Journal of Family Law 1, 14.
The fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act 1995. Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362 and referred to in M v M as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.
As Austin J observed in Fitzwater & Fitzwater, the conclusion reached by the Court in proceedings under Part VII of the Act, as reflected in whatever decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence.[6] Critically, however, and as his Honour noted, the law draws a distinction between proof of historical facts and the prediction of future possibilities. Drawing on what the High Court said in Malec v J.C. Hutton (1990) 169 CLR 638 at 639 – 640 and at 643 (“Malec”), Austin J noted that in determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.[7]
[6]Fitzwater & Fitzwater, [135]; see also Strickland and Aldridge JJ at [73].
[7]Fitzwater & Fitzwater, [135]-[136].
In Malec, Brennan and Dawson JJ said (at 639 - 640):
… facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities… the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history… the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the Suburb U were something that had occurred in the past was to misconceive the process of evaluation…
In Fitzwater & Fitzwater, Austin J noted that although the High Court in Malec was referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction: see Oswald v Karrington (2016) FLC 93 – 726 at [60] and Bant & Clayton (2015) 54 FamLR 621 at [99], [107], [171] and [172].[8] His Honour considered, and I respectfully agree, that such application of principle is consistent with the principles essayed by the High Court in M v M.[9]
[8]Fitzwater & Fitzwater, [137].
[9]Fitzwater & Fitzwater, [137]; see also Strickland and Aldridge JJ, at [77].
Austin J’s analysis of the nature of the task confronting a trial judge of this Court when considering whether to make a parenting order in favour of a parent who is alleged to represent an unacceptable risk is, with respect, compelling and of considerable practical assistance. His Honour observed:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
Although in Fitzwater & Fitzwater the majority expresses disagreement with Austin J on the proposition that s 140 of the Evidence Act has no role to play in a case where unacceptable risk of harm is alleged,[10] their difference with his Honour on this point may be more imagined than real. Austin J does not contend that s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged. His Honour’s point, consistently with M v M and Malec, is rather that the assessment of risk is predictive. While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, consistently with settled principle, have been the subject of findings on the basis of s 140 of the Evidence Act.[11]
[10]Fitzwater & Fitzwater, [74].
[11] Napier v Hepburn (2006) FLC 93-303, [82] (Bryant CJ and Kay J, with Warnick J agreeing at [113]); see generally Patrick Parkinson, “Possibilities, probabilities and the standard of proof in determining an unacceptable risk of sexual abuse” (2015) 29 Australian Journal of Family Law 1.
As the Full Court said in Napier v Hepburn (2006) FLC 93-303, at [82]:
…But the future likelihood of that event occurring needs to be evaluated not only in terms of the cogency of the evidence that it has occurred in the past, but also in the context of the father’s denials and the vigilance of the parties, given the events that have led them to litigate over these issues so early in the child’s life. What potential there was for these events to continue to occur if they have previously occurred in the past might well be diminished by the bright lights that have been shone upon the parties and their conduct in the course of these proceedings.
As the majority in Fitzwater & Fitzwater makes plain in relation to s 140(2) of the Evidence Act, the nature of the cause of action and the gravity of the allegations are relevant to the degree of satisfaction that the Court must hold to accept the proffered case.[12] Thus, their Honours observe, the nature of the allegations of the alleged sexual abuse are relevant to a finding (that is the future projection) that there was a possibility of such abuse.[13]
[12]Fitzwater & Fitzwater, [74].
[13] Fitzwater & Fitzwater, [74]; see also at [77]-[80] where the majority makes reference to Johnson & Page (2007) FLC 93-344; Malec; CDJ v VAJ (1998) 197 CLR 172; N and S and the Separate Representative (1996) FLC 92-655; and Bant & Clayton [2019] FamCAFC 198. Austin J’s formulation of the exercise to be undertaken at paragraphs [137]-[142] is entirely consistent with what Fogarty J said in N and S and the Separate Representative at 82,713-82,714 as to the importance of the judge considering the facts deeply and giving “real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to give rise to an unacceptable risk of harm to the child”. Plainly this is the exercise which must be undertaken. Nor is Austin J’s formulation of the exercise to be undertaken inconsistent with what the Full Court said at a level of generality in Bant & Clayton [2019] FamCAFC 198, at least at [38]-[42].
The process of evaluating whatever allegations are made must be conducted vigorously, and the termination of a relationship between the child and the allegedly abusive parent ought generally be the course of last resort. As the Full Court observed in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, at 79,217-8 (Kay, Holden and O’Ryan JJ):
Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times…
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.[14]
[14] See also W v W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93-235 at 79,910.
Having regard to these principles it is necessary to assess the relevant facts – here the allegations of psychological, physical and sexual abuse of the mother and the child made by the mother, and the father’s denials – and to conduct the fact finding exercise by reference to the civil standards of proof. If the father’s denials are to be rejected, there must be reasons given for doing so.[15] The assessment of whether there is an unacceptable risk of abuse involves making findings in relation to the allegations which are made and then, on the basis of those findings and giving due attention to all other relevant matters, making a prediction about the level of risk of harm posed to the child in the future. A decision about what is in the best interests of the child can then be made, having regard to the magnitude of the risk and the various matters required to be considered by Part VII of the Act.
[15]Napier v Hepburn, [79], Blanch v Blanch and Crawford (1999) FLC 92-837, 84,745 (Lindenmeyer J).
Corroboration of Evidence of Family Violence
Having regard to aspects of the mother’s written submissions, and the evidence more generally in this case, it is also convenient to say something in this context about the corroboration of evidence of family violence. The mother has submitted, referring to the decision of the Full court in Hendy & Penningh [2018] FamCAFC 257 at [72], that in relation to the alleged incidents of violence and abuse, it is “well settled that a party does not require their evidence to be corroborated before evidence of family violence can be accepted”.[16] The Full Court there referred to Amador & Amador (2009) 43 FamLR 268 at [79], where it was observed that given the tendency of domestic violence to occur in circumstances where there are no witnesses other than the parties to the marriage and perhaps their children, it cannot be accepted that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. The mother emphasises, relying on Hendy & Penningh, the importance of identifying a core consistency in the evidence of an alleged victim of family violence rather than concentrating on supposed inconsistencies in the evidence. On the subject of corroboration more generally, the mother refers to the well known passage about corroborative evidence in Doney v The Queen (1990) 171 CLR 207, 211.
[16] See also Evidence Act 1995 (Cth), s 164(1).
The mother’s submissions as to the nature of corroboration in circumstances where family violence is being alleged and the importance of identifying a core consistency in the evidence of an alleged victim of family violence rather than concentrating on supposed inconsistencies in the evidence in particular cases may be accepted at the level of general principle.[17] The importance of such an approach is readily apparent in the circumstances confronted by the Full Court in Hendy & Penningh.
[17] See also Keating & Keating (2019) FLC 93-894, [42] (Ainslie-Wallace and Ryan JJ); Zuen & Lhao [2020] FamCAFC 84, [24] (Ryan, Aldridge and Stevenson JJ).
It may also be accepted, consistently with these and other authorities, that evidence of family violence (as with evidence of other things) does not need to be corroborated to be accepted. However the importance of identifying a core consistency in the evidence of an alleged victim of family violence, while undoubtedly important in certain circumstances, does not permit a court to ignore or otherwise dismiss inconsistences in that evidence.[18] The assessment of the evidence in a civil proceeding must be undertaken by reference to the standard of proof prescribed in s 140 of the Evidence Act. Consistently with s 140, the Court must find the case of a party proved if it is satisfied that it has been proved on the balance of probabilities, having regard to the nature of the cause of action or the defence, the subject-matter of the proceeding, and the gravity of the matters alleged. The reference to the importance of identifying a core consistency, while important in cases involving family violence, must not obscure the reality that there cannot be a finding of family violence otherwise than in accordance with s 140 of the Evidence Act, and having regard to all relevant matters.[19] Where allegations of family violence are made it is necessary for the Court to make findings where the evidence enables that to be done.[20]
[18] As to which see Keating & Keating, [65] (Austin J). Although his Honour disagreed with the majority on the question of whether the primary judge erred in his consideration of the evidence concerning family violence, nothing he says at [65] sits uncomfortably with what the majority says at [42]. His Honour’s observation is, with respect, a statement of elemental principle.
[19] In this regard see Amador & Amador at [86]-[93] and the references to M v M, Briginshaw v Briginshaw, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACCC (2007) 162 FCR 466 at [31] and Re W (Sex Abuse: Standard of Proof) (2004) 32 FamLR 249 at [15].
[20] Zuen & Lhao [2020] FamCAFC 84, [24], and the cases there cited.
Re Andrew
It is the mother’s position that, even in the event that there is not a finding of unacceptable risk, there should be no orders for the child to have time with the father because of the impact that such an order would have upon her, and vicariously therefore upon the child. In this respect the mother refers to the principles essayed in Re Andrew (1996) FLC 92-692.
Re Andrew, it will be recalled, was an appeal from a decision of Butler J. His Honour had granted only supervised access (as it was then called) of the father to the child on the basis that the wife’s caregiving capacity would be impaired if unsupervised access was permitted, and that the effect of the mother’s fear of the husband would be detrimental to the child’s welfare, outweighing any benefit otherwise obtained by access. The father appealed, relevantly on the basis that the judge had over-emphasised the weight to be given to the beliefs of the mother, and that such beliefs would impair her parenting capacity and detrimentally affect the child, and not given enough weight to the benefits that would flow from an access regime being put into place. In the particular circumstances of the case the mother’s fear of the father had been engendered by the father’s serious assault of the mother, which she regarded as an attempt to murder her.
Dismissing the appeal, the Full Court emphasised at 83,199-83,200 that, consistently with then applicable section of the Act, the welfare of the child is the paramount consideration. The Full Court surveyed a series of cases which have held that in considering the welfare of the child the Court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s care-giving ability. Their Honours emphasised that in taking into account the beliefs of the custodial parent and the effect of such beliefs on that parent as the primary caregiver of the children and consequent harm to the children, a subjective test is to be employed. However it must be shown that such belief on the part of the parent with whom the child lives is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief will be open to doubt: Russell v Close (Unreported, Full Court of the Family Court of Australia, 25 June 1992). Axiomatically, a decision to sever the relationship between a parent and a child is one which the Court would ordinarily make only with considerable hesitation: Sedgley & Sedgley (1995) FLC 92-623, 82,260 (Lindenmayer, Kay and Moss JJ).
In this case I am satisfied that it would be in the child’s best interests to have a meaningful relationship with her father, as well as her mother. The child has not had time with her father for some two years now. Nor, by reason of this fact, has she had time with her paternal family: her paternal grandfather, aunts, uncles, and cousins (some of whom live in B Town). For all the reasons identified by the Family Consultant in paragraph 118 of her report, I do not consider that it is in the best interests of the child that she be deprived of the opportunity to form a relationship with her father, and with his family. Also, were the child not to have this opportunity, she would be deprived of the chance to have any family life in her place of residence other than with her mother. Her mother is a recent arrival to this country, and her own parents and siblings live in various countries around the world. In my assessment it would be undesirable for the child to miss out on extended family life in Australia.
The father is obviously keen to resume a relationship with his daughter at the earliest opportunity. He has brought this proceeding primarily to achieve that outcome. Although his behaviour towards the mother has left much to be desired and suggests that he can sometimes be violent, there is no compelling evidence to suggest that he could not perform in the role of a responsible parent to his daughter or that he would be violent towards her. That role may assume an even greater importance than it usually would in circumstances where the mother is a recent immigrant to this country. Although she would be well able to promote her own Country C language culture and traditions, she will not be so well placed to promote the culture and traditions of her adopted home. If, as the mother has indicated, she wishes the child to remain in Australia and have the benefits of growing up in Australia, it will be important for the child to have a relationship with her father and his Australian family.
Additional considerations
Insofar as the additional considerations required to be considered by s 60CC(1) and (3) of the Act are concerned, I make the following observations. To begin with, the child is not yet four years of age and she has not seen her father since she was little more than a baby. She has been in no position to express any relevant views, and thus s 60CC(3)(a) is of no relevance to the analysis. Nor is s 60CC(3)(b) relevant in circumstances where, at the mother’s initiative, the child has been deprived of a relationship with her father and her paternal family since she was one and a half years old. Similarly, the fact that the father has, at the mother’s initiative, not been able to make decisions about the child or pursue a relationship with the child as contemplated by s 60CC(3)(c) is not a matter which should count against him. The fact that the father has brought this proceeding demonstrates his desire to re-commence the relationship with his daughter which he has not been able to have in recent years.
The question of the extent to which the father has fulfilled, or failed to fulfil, his obligation to maintain the child (s 60CC(3)(ca)) is, by contrast, a more difficult matter. Although this issue was not the subject of much evidence at trial, or any application by the mother, the father accepted in his case outline that he did not pay child support in respect of the child. He claims never to have received communications or correspondence from the Child Support Agency since separation. Whatever be the position it is plain that, going forward, the father should be making child support payments. The occasional offers of assistance he has made, and there was evidence about some of these, are not sufficient. Nonetheless, despite the father’s lamentable failure to fulfil his obligations to maintain the child, I do not consider that his conduct compels a conclusion that the child should not have a relationship with him. The position in relation to child support must, however, be regularised promptly.
Insofar as s 60CC(d) of the Act is concerned, I do not consider that these matters are of particular significance in this case. The child has been separated from her father for a considerable period. What is now proposed, and what will be ordered, is a process of gradual reintroduction by way of supervised time, moving to unsupervised time and ultimately to overnight time. Handled appropriately I am confident that the changes in the child’s circumstances that such orders would effect will be in her best interests. As to any practical difficulties and expense of the child spending time with her father (s 60CC(3)(e)), I do not consider that this presents any impediment. Both parents are resident in B Town, and it is not apparent that there would be any practical difficulties.
The issue of the capacity of both parents to provide for the needs of the child, including emotional and intellectual needs, (s 60CC(3)(f)) was examined at trial principally through the lens of the mother’s allegations about the father’s conduct. Having regard to my conclusions in relation to these allegations I do not consider that there is sufficient evidence that the father would not have the capacity to provide for the child’s needs to compel a conclusion that the child should not have time with him. Similarly, I do not consider that there is anything in the maturity, sex lifestyle and background of the child or the father (s 60CC(3)(g)) that should counsel against orders that the child have time with the father. The mother and the father both seem to have strong adherence to their religious faith, and it would seem that both would bring the child up in this tradition. It is self-evident that in assuming responsibility for the child in the manner that he seeks, the father will be undertaking a role which he has previously not had. However I do not consider that the evidence discloses that he will be incapable of performing this role. Nor do I consider that the evidence suggests that the father will prevent the child from understanding her Country C language cultural heritage. A similar conclusion can be reached in relation to the considerations mentioned in s 60CC(3)(i) of the Act insofar as the father’s attitude to the child and to the responsibilities of parenthood is concerned. The child not being an Aboriginal or a Torres Strait Islander child, s 60CC(3)(h) of the Act has no application.
I have dealt extensively with the allegations of family violence which have been made concerning the child and the mother (s 60CC(3)(j) of the Act). These matters have been sufficiently addressed and in light of my findings in relation to them they do not provide a basis to prevent the child having time with her father. So it is in relation to s 60CC(3)(k) of the Act.
Insofar as s 60CC(3)(l) of the Act is concerned, whilst it cannot be denied that orders providing for the child to have time with the father may, in the future, involve the institution of further proceedings between the parties, I do not consider that this risk is sufficient, bearing in mind all other relevant matters, including the primary considerations, for no orders for time to be made.
Finally, I consider that there are no other facts or circumstances of significance which are relevant and which have not been considered (s 60CC(3)(m) of the Act).
Taking everything into account therefore, and leaving to one side for the moment the mother’s Re Andrew submission, I consider that it would be in the best interests of the child for orders to be made allowing for the gradual reintroduction of the father to the child in a supervised context, broadly in accordance with the orders proposed by the father. However supervised time should be kept in place until October of this year, which is about the time the child turns four. As I have indicated, in all the circumstances I do not consider that interim orders should be made and that there be a review after five or six months. The best interests of the child require that final orders be made, and the parties and the child must commence the process of adapting to the new arrangements.
Ideally the supervised time would be at the BCS, but in light of the present COVID-19 situation, the closure of the BCS, and the mother’s concerns about the persons nominated as alternate supervisors by the father, I will hear the parties on a date to be fixed in relation to the details of the supervisory arrangements to be put in place. To be clear, the requirement that the child’s time with the father initially be supervised is more to accommodate the need for the child to be reintroduced to the father after a lengthy period apart, than because of any particular concern that the father will abuse the child.
I will also hear the parties in relation to the detail of the orders to be made for time on special occasions, and any ancillary or supplementary matters concerning the arrangements moving forward. I do not accept that a general order in relation to special occasions as sought by the father, which provides for the parties to agree on a regime to apply on such occasions, would be suitable or workable in the present circumstances.
Parental responsibility
The mother has sought an order for sole parental responsibility. In the event that the Court finds that there is not an unacceptable risk to the child, the father says there is no reason why there should not be equal shared parental responsibility. He says that this is particularly so if his time grows and improves in the manner that his amended application proposes.
As I have explained, there is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. In the particular circumstances of this case, having regard to the findings I have made that the father has engaged in acts of family violence against the mother, the statutory presumption does not apply.
In all the circumstances I do not consider that an order for equal shared parental responsibility would be in the best interests of the child, or workable. It is clear on the evidence that the relationship between the mother and the father has completely broken down. A Tasmanian Family Violence Order is in place which substantially limits the contact which the father can have with the mother. The track record of the parties is such that they could not be expected to be able to communicate with one another about matters of significance for the child in a way which would be necessary if they were to have equal shared parental responsibility. I do not consider that they are capable now, or in the foreseeable future, of achieving what the Act requires of those who share parental responsibility: s 65DAC of the Act. I reach this view cognisant of the significance of excluding one parent from consultation and decision making in respect of major long-term issues for their child.[198] That this is necessary is a function of the evidence which I have accepted of the father’s behaviour towards the mother during the relationship, at the time of separation, and following separation. His propensity to intimidate the mother by text message is of particular significance in the context of my consideration of the Suburb U of future dealings between them. It would not be in the best interests of the child or feasible for the mother to be compelled to consult with the father and make joint decisions with him about the child’s interests moving forward.
[198] See Hardie & Capris [2010] FamCA 1046 (Murphy J) at [70]-[73].
The mother’s Re Andrew submission
As has been mentioned, it is the mother’s position that even if the Court finds that the father does not pose an unacceptable risk of harm to the child, it should nevertheless decline to make orders that the child have time with him because of the effect that such orders would have on her. It is said that because the evidence discloses that she would need counselling to cope with such orders, it follows that compliance with them is likely to be so traumatic for her that her ability to care for the child will be compromised and that this is not in the bests interests of the child.
For the reasons which follow I do not accept this submission. While it is true that Dr E’s evidence is that the mother would need significant assistance and support before the first contact and beyond in the event that orders were made permitting the father to have time with the child, it is also his evidence that the mother would be able to cope with such orders. The mother’s evidence appears to be consistent with what Dr E has said in this regard. The mother accepts that although it would be difficult for her if the Court ordered that the child have time with the father, she would comply with such an order. Whether she would in fact be prepared to embark upon the counselling that Dr E says she would need is not altogether clear.
Although the Family Consultant has given some evidence consistent with a view that the stress orders for time would likely impose on the mother would also likely cause stresses to be imposed on the child, I do not regard these views as compelling, particularly in circumstances where I consider that the Family Consultant has lost her objectivity and her views in this regard are advanced without real explanation or support.
Having regard to the fact that Dr E has not been able to identify, in the particular circumstances of this case, a reaction on the part of the mother to an order that the child have time with the father that would be so extreme and so unmanageable that it would discernibly impair the mother’s care giving capacity, I am unable to accept that, notwithstanding the mother’s genuine concerns about the father, it is in the best interests of the child that she have no time with the father. To use the words of Tree J in Hollister & Gosselin, at [193], there is, in this case, little evidence “beyond the mother’s inevitable devastation and horror, to suggest that she could not continue to successfully parent the [child]”. The state of the evidence is insufficient for the mother’s submission to succeed.
Overseas travel
Although in her Response to Initiating Application filed 19 July 2019, and in her orders sought at the commencement of the trial, the mother did not seek any orders that she have leave to travel out of Australia with the child, her closing submissions seek such an order. In particular she seeks leave to travel out of Australia with the child for six weeks in each calendar year, subject to the provision of such bond or other security as the Court determines. She also seeks orders in relation to the execution of a passport for the child by the father. Orders in broadly similar terms are also sought by the ICL.
The father opposes the grant of such orders at this time. He points out that this was not a matter that was prosecuted at trial, and that the mother’s stated position is that she has no plans permanently to relocate from Australia. Her trial affidavit does indicate, however, that she wishes to be able to take the child to Country C to see her family at some point. The father says that this plan is not something that presently has any substance to it, and that at the moment there is no proposed itinerary or any information about how much money she would be able to post as a bond to guarantee her return with the child from Country C. He says that this application should await a specific proposal, on the assumption that he opposes such a proposal, and that in the interim the statutory position under s 65Y of the Act should reflect the status quo.
In all the circumstances I am not inclined to accede to the mother’s application that orders in relation to matters concerning international travel be made now. An application in these terms was not brought at the commencement of the trial, and nor did it assume any particular prominence in the conduct of the trial. In my assessment it would be better for such an application to await a specific proposal, assuming that it was not supported by the father, and it could then be considered having regard to all relevant matters. Until such time as any order is made, both the mother and the father are prohibited by s 65Y of the Act from taking or sending the child from Australia to a place outside Australia except with the consent in writing of the other, or in accordance with the order of a court.
Conclusion
There will accordingly be orders for the mother to have sole parental responsibility, for the child to live with the mother, and for the child to have time with the father, together with ancillary matters. These orders will be in the form set out at the commencement of these reasons. As I have indicated, the matter will be listed on a date to be fixed for the parties to make submissions in relation to arrangements for supervised time during the period of the closure of the BCS by reason of the COVID-19 emergency, and for time on special occasions. If it is necessary for evidence to adduced in relation to this aspect of things then that will be accommodated.
There is one further matter which it is necessary to mention. Having regard to the evidence that has been given by Mr F about the issue of excommunication, particularly of the mother, and the references which it seems the father has made to the mother about this possibility post-separation, I consider that it is desirable to remind the parties of the effect of s 121 of the Act. Section 121 is relevantly in the following terms:
121 Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
…
(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a)it contains any particulars of:
(i)the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii)the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b)in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or
(c)in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
…
(5)An offence against this section is an indictable offence.
It is plain that for either of the parties to disseminate this judgment to others in the community, including to members of the parties’ respective church congregations, would run the real risk of the commission of an indictable offence, punishable on conviction by imprisonment.
The statutory intention is clearly to protect the privacy of those involved in proceedings in this Court, particularly the parties themselves and other family members. In this case it is no doubt in the best interests of the child, but also of the parents, that their privacy be protected in this way.
It would therefore be entirely inappropriate, and contrary to law, for either of the parties to attempt to bring these reasons for judgment to the attention of anyone else, particularly members of their church congregations, in order to prosecute some ulterior campaign of persecution, or for any other reason. Accordingly I will direct that the parties’ legal representatives bring s 121 of the Act and my comments in relation to its operation to the attention of the parties at the time they advise the parties of the orders of the Court.
Should either of the parties seek to have an order that they be at liberty to provide a copy of these reasons to any therapist, psychologist, psychiatrist or other health practitioner on the usual basis of confidentiality, I would be prepared to make an order to facilitate this.
I should record, finally, the Court’s appreciation of the very considerable efforts of counsel and solicitors for each of the parties and the ICL. The trial of the proceeding was long and difficult, and the Court was greatly assisted by the efforts and professionalism of all involved.
I certify that the preceding four hundred and forty (440) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 8 May 2020.
Associate:
Date: 8 May 2020
19
18
2