Lewin & Selwyn
[2022] FedCFamC1F 1021
Federal Circuit and Family Court of Australia
(DIVISION 1)
Lewin & Selwyn [2022] FedCFamC1F 1021
File number(s): ADC 1440 of 2020 Judgment of: KARI J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – INTERIM HEARING – Where the child has not seen the father since mid-2018 – Where the child has made disclosures of sexual abuse perpetrated by the father – Where the child has displayed sexualised behaviours at school over a lengthy period – Where the applicant father seeks the preparation of a family assessment with the Court Child Expert to have discretion over whether there is to be observed interactions between the child and the father – Where the mother opposes the family assessment or in the alternative says that there should not be observed interactions between the child and the father – Where the Court has had regard to the principles set out in Div 12A Part VII of the Family Law Act1975 (Cth) – Where in the circumstances any order for observed interactions between the father and the child is a parenting order - Where the court cannot ignore the potential negative impact on the child if she were required by the report writer to interact with the father – Where orders are made for a Family Report to be conducted without observed interactions Legislation: Family Law Act 1975 (Cth) Cases cited: Hall and Hall (1979) FLC 90-713
Isles & Nelissen (2022) FLC 94-092
M and M [1988] CLR 69
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 22 November 2022 Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Ms Ross Solicitor for the Respondent: Debra Spizzo and Associates Counsel for the Independent Children's Lawyer: Ms Fuda Solicitor for the Independent Children's Lawyer: Denise M Rieniets & Assocciates Pty Ltd ORDERS
ADC 1440 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LEWIN
Applicant
AND: MS SELWYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
20 December 2022
THE COURT ORDERS THAT:
1.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child are to attend upon a Court Child Expert (practicing under their appointment as a Family Consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Family Report, such report to be released no later than 15 April 2022 and that in relation to the Family Report:
(a)Such report is not to include any observed interactions between the parents and the child.
(b)Such report is to address:
(i)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(ii)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(iii)the impact upon the child and upon their relationship with the mother if the Court made orders as sought by the father;
(iv)the impact upon the child and upon their relationship with the father if the Court made orders as sought by the mother;
(c)Any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
2.Not later than 7 days from the making of these orders the parties must provide their contact telephone numbers and email addresses to ...@....
3.The mother will do all things necessary to ensure the child attends upon the Court Child Expert/Family Consultant pursuant to Section 62G(3A).
4.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Court Child Expert/Family Consultant may advise.
5.The Court Child Expert/Family Consultant shall be at liberty to inspect any material filed by the parties or the Independent Children’s Lawyer and otherwise any material produced pursuant to s69ZW.
6.Upon the Family Report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.
7.Unless a party objects in writing within 14 days of the date of releasing the Family Report, a copy of the Family Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
8.Unless otherwise ordered, no person shall release the Family Report, or provide access to the Family Report to any other person.
9.The proceedings are otherwise adjourned to 24 May 2023 at 10 am for a First Day Hearing (1 hour allowed).
10.The parties shall personally attend the First Day Hearing AND it is requested that Counsel properly instructed for Trial attend and in the event they are not available, the file principal attend.
11.In the event that any party is legally aided they are to make their application for a grant of legal aid for TRIAL PURPOSES no later than six weeks prior to the First Day Hearing and be in a position to advise the court as to funding arrangements at the First Day Hearing
12.That no less than seven (7) days prior to the First Day Hearing the parties shall file and serve:
(a)A brief summary of the issues in dispute, together with a Minute of the specific Orders sought;
(b)A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued; and
(c)Details of the costs incurred to date and the anticipated costs of Trial.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lewin & Selwyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
Introduction
These are parenting proceedings relating to the parties child X, who is 11 years of age.
X’s parents are the parties to the proceedings, and her interests are separately represented by an Independent Children’s Lawyer (“ICL”).
X lives with her mother. She has not seen or spent any time with her father since mid-2018.
The reason that X stopped spending any time with the father is because X made disclosures of sexual abuse perpetrated by the father.
The father denies those allegations. He wishes to resume a relationship with X.
The mother does not support the resumption of a relationship between X and the father.
The proceedings were commenced by the father on 14 April 2020. The father’s position is that the proceedings are at a point where expert evidence in the form of a family assessment is required.
The dispute at this juncture is whether and on what terms that assessment should proceed. The father promotes that the Court Child Expert have discretion as to whether or not there be observed interactions between the father and X. The mother opposes any need for an assessment. However if there was to be one, she says that there should not be any observed interactions between the father and X. The primary position of the mother is that the Court list the matter for trial and determination of the threshold question as to whether the father is an unacceptable risk of harm. The ICL supports the father’s position.
Background
In order to understand the reasons behind the present dispute, more needs to be understood about the background to the litigation and the disclosures / allegations that have been made.
By way of short background:
(a)The father was born in 1968 and is 54 years of age.
(b)The mother was born in 1976 and she is 46 years of age. She has a child “B” from a previous relationship who was born in 2006.
(c)The parents were in a relationship between approximately 2008 and late 2012. There appears to be some dispute about the duration of their cohabitation. However it appears that the parties agree that they were living together in a residence owned by the mother from sometime around the birth of X, until the father vacated the property in late 2012.
(d)X was born 2011. She was several months old when the parents stopped living together.
While there is some dispute as to the reasons why, at the time of separation, the parties implemented a shared care arrangement for X.
That shared care arrangement continued until approximately mid-2018. At that time X made disclosures of sexual abuse perpetrated by the father. X has not spent time with her father since the making of those disclosures.
The shared care arrangement that was in place prior to mid-2018 was fraught, with both parents making allegations about inappropriate conduct by the other of them. The mother alleges that the father was aggressive and controlling. The father alleges that the mother was unable to adhere to the parenting arrangements and sought to undermine his relationship with X.
The disclosures of sexual abuse & concerns raised
Disclosures of sexual abuse were first made by X in early 2016.
At that time, the disclosures related to a child named “C”.
The mother deposes to those disclosures in her affidavit filed 16 July 2020, in the following terms:
29. [In early] 2016, we were at home, I heard [B] say to [X] you had better tell Mum. I asked what she needed to tell me. [B] told me what [X] had said. He said that a boy named [C] had pulled his pants down and asked her to kiss him "down there" and then told her to pull her pants down so that he could kiss her "down there". [C] is the grandson of the man who rents the Applicant's residence to him. Their houses are situated on the same property. I asked [X] about this incident and she confirmed this did occur. I asked if she carried out these actions and she confirmed she did.
30.[In early] 2016, I advised the Applicant of the incident, and urged him to monitor [X] whilst she is in his care and to also discuss this incident with [C's] parents to ensure he understands what he did was inappropriate. The Applicant became angry when I told him about this as he said he would be forced to leave his residence and he would become homeless.
31.Soon after, another incident occurred where [C] allegedly coaxed [X] into the bushes and asked her to have sex with him. [X] told me she had said no. I informed the Applicant of this incident. I was upset that he had allowed the children to play unsupervised and I told him I did not want [X] playing with [C] anymore.
In mid-2017 the parents were asked to attend a meeting at X’s school. At that meeting the parents were advised that X had been displaying sexualised behaviour and/or had behaved inappropriately with a male student, and that she had been looking up “sex’” on the school iPad.
Following that meeting the parties agreed that they should access some professional support for X. However there was a dispute between the parents as to what support was to be accessed, with the father asserting that the mother unilaterally determined to access Child and Adolescent Mental Health Services (“CAMHS”), and the mother asserting that she felt pressured by the father to attend a GP together to obtain a referral to a specialist, and that the delays to see a private specialist were too lengthy. Ultimately however X was seen by CAMHS.
The mother otherwise deposes to the following series of events in her affidavit filed 16 July 2020.
(a)In mid-2017, the mother was contacted by South Australian Police Service (“SAPOL”) Detective Mr D in relation to a child protection notification that had been received in relation to X and the sexualised behaviour that she had been exhibiting at school. During that communication, the mother advised the Detective about the disclosures X had made involving C in 2016.
(b)In mid-2017, X was interviewed by Child Protective Services (“CPS”). No disclosures were made in that interview and the file was closed.
(c)In mid-2018, the mother was contacted by SAPOL Detective Ms E, and asked to consent to a SAPOL interview of X. The mother was advised that SAPOL held concerns that X and the father were sleeping in the same bed together when she spent time with him.
(d)At some point the mother became aware that there had been an incident involving X and a 6-year-old neighbour of the maternal grandmother, where X was said to have inserted her fingers into the other child’s vagina.
(e)In mid-2018, the mother allowed X to attend a play date. The mother was subsequently advised by that child’s mother that during the play date, X “had searched pornography and had showered her daughter”. The mother of this child advised the mother that she would be making a report to the Child Abuse Report Line (“CARL”) about the incident.
(f)In mid-2018, the mother again received communication from X’s school about concerns as to her sexualised behaviour. At the time X was in the father’s care.
(g)In mid-2018, when X returned to the mother’s care the mother spoke with X about the concerns that were being raised about her behaviour. The mother deposes to that conversation in the following terms:
58.… I was feeling so distraught about her behaviour and felt helpless. I said to [X] “I feel that somebody is hurting you and I can’t protect you.” I told [X] that she was not telling me everything. I stated I did not know what to do. [X] said she would talk to me, but she did not know where to start. We sat together. [X] had a lot of trouble talking. I reassured her she would not get into trouble. She told me about the videos and pictures she had been viewing at the Applicant’s house, but she did not call it ‘porn’, or ‘pornography’. She told me that when she was about five (5) years old, she had found videos and pictures on the Applicant’s phone. [X] had been provided with the iPad and internet access at the Applicant's home since she was approximately two (2) years old.
59. [X] was crying but she said she was happy. She kept saying "/ can't believe tonight is the night that this is happening."
60.[X] then told me about videos she would watch, and how you "click and click and then it gets really bad." She told me about one of the videos she watched where a woman had a man's penis in her mouth, and the woman bit it off and started chewing and there was blood everywhere. [X] said that it made her feel awful inside and that she could not stop thinking about it.
61.The next day, I took [X] to work with me. I would not normally do this, as [X] would miss days of school when she was in the Applicant's care, but after the discussions the previous night I wanted [X] with me. On the way home on the tram, [X] told me that she felt great that I knew about the inappropriate videos. I asked [X] if there was any more for her to tell me, and she said yes.
62. I spoke to [DETECTIVE Ms E][ about [X] watching the pornography.
63. [In mid]-2018, I took [X] to see [Ms F]. [Ms F] is a Counsellor and […]. I only told [Ms F] about the inappropriate material online. I left [Ms F] and [X] to chat.
64.When I came back into the room, [Ms F] told me that she and [X] had talked about a lot of things.
65.[X] told me that her and the Applicant had a bath together. I said "that doesn't make sense because there is not bath in that house." [X] said, "yeah we have a big blow up square one." [X] then spoke about her and the Applicant touching each other in the bath. [X] said that after the bath they went into the bedroom. She laid down on the bed and the Applicant laid on top of her. They would talk about a pillow with a hole in it, and the Applicant would put his penis in the hole. I was in total shock when I heard this.
66. When I got home from the appointment, I immediately called [DETECTIVE Ms E]. I was advised that SAPOL had been investigating the Applicant but had been unable to reveal this to me. I was told by SAPOL not to return [X] to the Applicant's care.
67. That night, [X] disclosed to me that in the bath, she would put her feel out and touch the Applicant's penis. The Applicant would then lean forward with his hand and touch her vagina. [X] said that they would go to the bedroom and have sex. She said her and the Applicant would take turns, and that sometimes the Applicant would lie down and [X] would get on top of him. [X] said other times the Applicant would get [X] to lie on her tummy and the Applicant would rub his penis up and down her bottom
(h)In mid-2018, the father was arrested and charged with the offences in relation to X.
(i)In late 2018, X began seeing a counsellor at L Counselling.
(j)In early 2019, X made further disclosures to the mother as follows:
70.… [X] was in bed and could not sleep. When I asked why she said, "/ wish Dad was dead. I never want to see him again." [X] then asked if he was in jail. I said I did not know, and [X] asked if I could find out. I told [X] that the detectives are looking after things and she does not need to worry about anything. I said they are looking for the video that she told them about. I told her again she does not need to worry. [X] then said "They won't find it. The phone that video is on is gone. Dad smashed it." [X] then started crying and said, "I need to speak to [Ms F]!" I hugged [X] and said she could talk to me. [X] then said that she "made it all up" and said she wanted to get away from him and live with me. [X] said she did not want to see him again.
In early 2019, X was interviewed by SAPOL. The parents understand that X withdrew her allegations relating to the father.
In early 2019, the mother obtained an Intervention Order which named X as a protected person and the father as the defendant.
In early 2019, the charges against the father were withdrawn.
On 14 April 2020, the father commenced these proceedings.
In mid-2020, the mother again received communication from X’s school. The mother deposes to those events in her affidavit of 16 July 2020 in the following terms:
88.[In mid-] 2020, I received an email from [X's] school advising me that [X] had had an inappropriate conversation with another student. At an appointment with the Principal, I was told that [X] had said to the student "My dad has done something bad to me and isn't allowed to see my anymore." I broke down crying in the office. I asked [X] about the incident, and [X] told me that a boy in her class no longer sees his dad. [X] told me she said to the boy that she does not see her dad either because of what he did to her.
89.I was frustrated and upset because [X] was again saying that the Applicant did sexually abuse her. I asked [X] whether the Applicant did those things to her or not. [X] said "he did." I asked her why she withdrew her statement. [X] said she withdrew it because she was scared.
90.I contacted [DETECTIVE Ms G] and informed her of the conversation, and she advised me that she would make a note of it and monitor for a CARL report from the school.
Documents obtained following the commencement of these proceedings
When the proceedings first came before the Court on 10 June 2020, Judge Brown (in the Federal Circuit Court of Australia, as it was then known), made a range of orders, including an order for the appointment of an ICL and orders pursuant to s 69ZW of the Family Law Act directed to both SAPOL and the Department of Child Protection (“DCP”) to obtain information held by various authorities.
In addition to the material that has been produced by both SAPOL and the DCP, the father has issued a number of subpoena for the production of documents.
Consequently a considerable range of records have been made available to the Court, the parties and the ICL. Copies of the relevant records have now been filed in the proceedings by the ICL. Those records include but are not limited to:
(a)SAPOL records and in particular those relating to the charges laid against the father in mid-2018;
(b)School records from X’s school, H School;
(c)X’s medical records from the J Medical Centre
(d)Records from Child Protection Services at the K Medical Centre; and
(e)Records from the child’s counselling sessions at L Counselling.
The SAPOL records that have been produced record the disclosures made by X in relation to the father. Those disclosures are recorded in the following terms:
The victim in this matter is seven (7) years of age. The victim provided a vulnerable witness interview to police disclosing when she was four (4) years of age her father, [Mr Lewin] had a bath with her and he put her legs inbetween (sic) him so her feet could touch his penis. After the bath they went to bed naked where ‘they had sex’, that involved her father putting his penis into her bottom before making her do a special dance that involved putting his penis into her vagina. She disclosed they then put of (sic) their clothes and went back to sleep. The victim further disclosed the following day her father filmed him and her in the toilet. The father making a video of the victim standing on the toilet while she rubbing his penis. CARL report updated with disclosure.
A preliminary perusal of the records produced from H School indicate that there are numerous records documenting concerns over X’s behaviour, including but not limited to her overtly sexualised comments and behaviour. So far as the latter are concerned, those records include the following incidents:
(a)In early 2017, “…X was on the oval with her underwear down at lunch time…”
(b)In mid-2017, one of X’s teachers was concerned about a conversation that she had with X in which X is recorded as having discussed C and said “He told me to show my vagina and he would show me his penis…”, “…He said I want to suck your vagina…”, “…He said I want you to suck my penis…”.
(c)In mid-2017, X was drawing pictures in class of people with “penises”.
(d)In mid-2017, X asked another student to kiss her on the lips.
(e)In mid-2017, X is recorded as having told her mother that another student wrote her a note asking to have sex with her, which allegation X later is recorded to have retracted.
(f)In late 2017, “…[X] was given out stationary and had a ruler and poked the ruler in the private parts area of a stuffed toy bunny”.
(g)In mid-2018, another student had reported to a teacher that “…[X] had been touching her private areas in front of him…” X is recorded to have spoken with the teacher after the incident and to have been “…remorseful for her actions today…”.
(h)In mid-2018, X reportedly drew a picture, which was of concern. A copy of that picture is included in the records and is of two people. X has written the words “[…]” and “[X]” above the two people, with the word “sex” in between the two names and a love heart between the two people.
(i)In late 2018, there is a long entry in which various students are recorded as having been told by X that “… her dad sexually abused her”. This record also includes a copy of a drawing said to have been drawn by X. The drawing depicts X and her “dad” in a bath, with arrows pointing to various body parts that X has identified as “nipils”, “vgina”, “peanes”. The picture has a heading at the top of the page “sex”.
There is one report prepared by CPS dated mid-2018 relating to the investigation into disclosures made by X about “C”. That report variously concludes:
At the conclusion of the current assessment, the CPS formed the view that there was little information provided by [X] to support the contention that she had experienced sexual abuse perpetrated by [C]. The CPS perceived that [X’s] disclosures during the forensic interview indicated that she and [C] had engaged in age-appropriate and mutual exploratory activity. Specifically, [X] had reported that she and [C] had engaged in “show and tell” with regard to their “private parts”, and that he had told her about the word “sex”, which [X] understood to refer to “how parents have babies”. [X] further reported that [C] had “told me to do it with him but I didn’t”, although she did not provide details regarding what “it” comprised. [X] indicated that after [C] had made this request, she had advised [Mr Lewin] and [C] had “got in trouble”, suggesting that [Mr Lewin] had managed this incident as he had advised. [X] was considered a credible historian, whose recall ability was evidenced by a cohesive narrative and a consistent account of her experiences with [C]. Additionally, [X] displayed a capacity to provide contextual details, such as the identity of [C] and the location of their meetings and peripheral details such as the weather.
A preliminary perusal of the notes from L Counselling suggest that these notes relate to the ongoing counselling X is receiving. That counselling is described in the notes as being for “grief/loss/trauma (sexual assault by father)”. Those notes variously record:
(a)In late 2018, X is recorded to have said “dad was mean”, but she was not “ready to discuss further”.
(b)A short time later, in 2018, the notes record:
•… [X] responded by indicating that she was ready to tell her story – but would not use words; would instead use the whiteboard.
•On the whiteboard [X]:
•began by writing the word ‘sex’; writing firstly sex was when babies were made, and then writing dad had sex with [X].
•[X] then drew a big circle and drew a person inside. She then asked the counsellor to look away while she continued to draw. When finished [X] invited the counsellor to look. [X] explained her drawing – it was a bath, in the bath was herself and her dad. [X] explained neither she nor her dad had clothes on. [X] explained descriptively what happened using the picture to help her and using the appropriate terminology.
•[X] then drew on the other side of the white board a drawing to resemble the ipad saying dad made me watch videos on the ipad and searching criteria was:
•Sex
•Licking dicks
•Hula hoop sex ooooo
•I love licking my dad’s penis
•Counsellor frequently checked with [X] – [X] responded by continuing.
•[X] also wrote on the whiteboard her name and the word ‘video’. Counsellor queried [X] what that meant, [X] responded with dad videoed me.
(c)There are two undated, hand drawn pictures which appear to have been drawn by X in a session in late 2018. One picture depicts a male, with his genitals displayed and an arrow pointing to the genitals with the words “it is moving” underneath. On the same page there are pictures that appear to resemble a tongue. The second drawing is of a female with an arrow pointing to the genitals and the words “I was screming and criang” (sic).
(d)In early 2019, the notes record a phone call between the mother and the counsellor in the following terms:
•[Ms M] noted the following:
•[X] talked about her dad again the other night and mentioned the videos.
•Asked if dad was jail yet; mum responded ‘not sure’.
•[X] responded ‘I wish he was dead’; and said she doesn’t want to see him again.
•[Ms M] told [X] the police were still investigating and looking for the videos.
•[X] then indicated to [Ms M] – it had never happened and dad had smashed his phone.
•Next day [Ms M] noted conversation to both Detective and Lawyer; both indicated withdrawal was common; is self-survival. Detectives acknowledged both phone and ipad been smashed.
•[Ms M] mentioned she didn’t know what to think now X had withdrawn statements, but thought there must be something there due to X’s behaviours
…
(e)The same day, the session notes with X variously record:
•[X] shared in story form, initially using puppets and then on the whiteboard that she had made up the story, but indicated seeing ‘inappropriate’ things on iphone.
(f)The notes otherwise variously record that at times throughout her counselling sessions, X has expressed a desire to see the father, and also a desire that she never see him again.
Significant Court orders and events
It is also of some relevance to note that in the context of the litigation the following events have occurred.
On 17 August 2020, a Court Child Expert undertook a preliminary assessment and prepared a report. Of significance, the Court Child Expert commented:
(a)“It appears something has happened to this child, however, the cause of the reported sexualised behaviours appear to be disputed by the parents...”
(b)“the Court might want to consider ordering a forensic psychological assessment of [Mr Lewin]…”;
(c)“If the matter proceeds, a Family Report might also assist the Court. Any report should give the Consultant discretion as to whether there are observations of the child with the father.”
On 26 August 2020, Judge Brown made orders that the father “undergo a forensic psychological assessment”. That assessment was undertaken by Dr N and he prepared a report dated 28 October 2020. Importantly for present purposes:
(a)Dr N was satisfied that the father met the diagnostic criteria for multiple disorders.
(b)Dr N concluded:
In my opinion, while the allegations made against [Mr Lewin] are very serious, the Criminal Court were unable to establish their voracity. As a matter of fairness, in my opinion, [Mr Lewin] should be entitled to have his access to his daughter restored.
My concern with [Mr Lewin’s] current mental health, particularly in relation to the current assessment suggesting there was evidence of “psychotic features” relevant to his presentation. This is consistent with his history of his serious […] injury from a past motor vehicle accident. I would encourage therefore, [Mr Lewin]’s involvement with his daughter to be supervised.
Finally, it is recommended that [Mr Lewin] be fully assessed by a neuro-psychologist, or neurologist and a psychiatrist to determine the extent of his current impairment.
On 13 November 2020, Judge Brown made an order pursuant to s 91B inviting the Minister for Child Protection to intervene in the proceedings, together with an order transferring the matter to the Family Court of Australia (as it was then known). The Court understands that the Minister declined to intervene in these proceedings.
The relevant legislative provisions
The principles for conducting child related proceedings are contained in Division 12A Part VII of the Family Law Act.
There are 5 core principles to which regard “must” be had in all child related proceedings. Those principles are as follows:
Principle 1
69ZN(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
69ZN(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
69ZN(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
Principle 4
69ZN(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focussed parenting by the parties.
Principle 5
69ZN(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.[1]
[1] Family Law Act 1975 (Cth) s 69ZN(3)-(7).
In giving effect to the core principles, the Court has a range of powers including as follows:
69ZQ General duties
(1)In giving effect to the principles in section 69ZN, the court must:
(aa) ask each party to the proceedings:
(i)whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii)whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)decide the order in which the issues are to be decided; and
(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f)if the court considers it appropriate—encourage the parties to use family dispute resolution or family counselling; and
(g)deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3) A failure to comply with subsection (1) does not invalidate an order.
69ZS Use of family consultants
At any time during child related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings.
Note 1:Family consultants have the functions described in section 11A. These include assisting and advising people involved in proceedings, and this assistance and advice may involve helping people to better understand the effect of things on the child concerned. Family consultants can also inform people about other services available to help them.
Note 2:The court may also order parties to proceedings to attend, or arrange for a child to attend, appointments with a family consultant. See section 11F.
69ZX Court’s general duties and powers relating to evidence
(1) In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required—give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii)how an expert is to provide the expert’s evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
As can be readily seen, these provisions provide the court with significant scope and flexibility as to how child related proceedings are conducted, including among other things, the evidence to be received by the court
While these principles and powers guide the conduct of parenting proceedings, it is also readily understood that the fundamental obligation of the Court when making a parenting order is to make orders which are considered to be in a child’s best interests, as guided by the factors set out in s 60CC of the Act.
Discussion
The dispute between the parents at this stage is focussed on the management of the matter and the evidence to be presented from this juncture to enable the ultimate determination of the issues in dispute such that final parenting orders can be made by the Court.
In circumstances where the mother is promoting orders that she have sole parental responsibility for X and that X live with her and spend no time with the father, the mother is presumably asking the Court to ultimately come to a conclusion that the father is an unacceptable risk of harm to X.
On the other hand, the argument likely promoted by the father is presumably one where he is asking the Court to conclude that he does not present any risk of harm to X. Again, this is to be inferred as the final orders he seeks is that the parents share parental responsibility and that X live between he and the mother in an equal shared care arrangement.
For the Court to come to any conclusion about whether or not the father presents an unacceptable risk of harm to X, the Court must have regard to a combination of facts and circumstances.
As identified recently by the Full Court in Isles & Nelissen (2022) FLC 94-092:
82.Correctly, the primary judge said this to distinguish positive findings of sexual abuse from findings of unacceptable risk of harm:
60.The primary position of the mother and the [child welfare agency] is that the Court make a finding of fact, on the balance of probabilities, that the father has sexually abused [the child] with consequent orders to attend to future risk. This would constitute a finding of fact based on the empirical evidence as, indeed, would be the task of the Court in respect of the father's submissions that the mother has fabricated or opportunistically manipulated an otherwise innocent statement from [the child]. Put simply, this is an exercise of findings of fact. The notion of ‘an unacceptable risk,’ is, however, a predictive or prospective exercise for the Court in determining whether there is a ‘risk’ into the future; the magnitude of the that risk; and whether there are tools or circumstances to adequately mitigate that risk.
…
65.The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities” …
(Emphasis added)
83. Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
84.In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
It is unclear to the Court at this stage whether the mother will be asking the Court to make a finding that the father sexually abused X. More importantly, even if the mother is asking the Court to make such a finding, until the evidence is tested at trial, it is not clear at this stage whether such a finding is ultimately capable of being made. In any event, as identified by the High Court in M and M [1988] CLR 69, the resolution of the allegations of sexual abuse against a parent is subservient to the Court’s determination of what is in a child’s best interests.
In parenting proceedings the Court often makes orders pursuant to s 62G for the preparation of a Family Report by a Court Child Expert/Family Consultant, or by someone suitably qualified to undertake that task privately. The significance of a Family Report is invariably that it provides the Court with independent expert evidence as to the range of factors identified in s 60CC when determining what parenting orders are in the best interests of the child
Importantly, when regard is had to s 62G, the following observations are made:
(a)Firstly, there is no mandatory requirement that such a report be obtained (s 62G(1)).
(b)Secondly, the report acts as in independent vehicle to convey the views of the child to the Court (s 62G(3A)).
(c)Thirdly, the Court is able to make “any other orders, or give any other directions, that the court considers appropriate” when ordering the preparation of a report (s 62G(5)).
While the report is a useful tool, the ultimate weight to be given to any report and the recommendations made in any such a report is ultimately a question for the Judge. As identified by the Full Court of the Family Court in Hall and Hall (1979) FLC 90-713 at [78,819]:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood at p. 75,447; Harris and Harris ; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
…
The making of an order for the preparation of a family report is not a “parenting order” within the meaning of s64B(2) of the Act, which provides:
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note:Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
In most cases when the court makes an order for the preparation of a family assessment, it is commonplace that the child is spending time with both parents and/or the parents agree that the child should have a relationship with each parent. Thus, the court is not being asked to specifically consider the time spending that occurs during the observed interactions between each of the parents and the child, as both parents and the court accept that such time spending is necessary for the preparation of the family report and that it is in the child’s best interests that such time spending occur.
However, in the circumstances of this case where there has been no time spending between the father and X since mid-2018, there are allegations of sexual abuse, and there is a dispute between the parents about whether there is to be any relationship between the father and the child whatsoever, arguably, the question of whether such time spending is to occur in the context of a Family Report, is in fact a parenting order within the meaning of s 64B(2)(b) of the Act.
Taking those matters into account, the delegation of whether such time spending occur to a Court Child Expert / Family Consultant, regardless of their qualifications, is not appropriate.
Such a conclusion therefore mandates that in determining the dispute between these parents, as to whether or not there be observed interactions between X and the father during the Family Report, both the principles contained in Division 12A, together with the best interest factors set out in s 60CC apply.
From the mother’s perspective, it appears that particular emphasis is placed on Principle 1, which obliges the Court to consider the “impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”
The mother’s case appears to be that the impact on X of requiring the Court Child Expert to observe interactions between her and the father under the veil of the Family Report, is one that would be detrimental to her in all of the circumstances of this case, particularly in light of the allegations of sexual abuse, and accordingly should either be avoided all together, or alternatively is only a step that should be taken by the Court if the Court is satisfied that the father does not present an unacceptable risk of harm to X.
In addition the mother points to concerns X recently voiced to her brother B when she learnt that the father had accessed information about her on her school O App, as indicative of X’s view that she does not want a relationship with her father.
The father’s case appears to be that because the allegations of sexual abuse against him have been withdrawn, the Court could not be satisfied that he is an unacceptable risk of harm and accordingly the Court would benefit from a Family Report, which includes observed interactions, to among other things explore the viability of the parenting orders that he proposes.
The father’s position however, fails to understand the fundamental difference in criminal proceedings as against parenting proceedings under Part VII of the Family Law Act. In particular:
(a)The standard of proof is different. In the criminal jurisdiction the standard of proof is “beyond reasonable doubt”, whereas in the family law jurisdiction the standard of proof is on “the balance of probabilities”.
(b)The fact that X withdrew the allegations, and/or that that the criminal charges against the father were withdrawn, does not render the exercise of this Court assessing risk nugatory.
(c)Finally, this Court is required to ultimately make orders that are in X’s best interest.
It is significant from my perspective that the father agrees that X’s behaviours, particularly those she has displayed at school, can be characterised as “inappropriate sexualized” behaviour (father’s written submissions filed 21 November 2022).
On any view, X’s behaviour and disclosures (despite her later retraction of those relating to the father), are cause for serious concern. It is not lost on the Court that a Court Child Expert has formed the preliminary view that “something has happened to this child”.
While the father is critical of the mother, it does not appear from the material that he has filed to date that he considers that the mother nor other independent professionals have fabricated the disclosures made by X. Equally the father does not suggest that the inappropriate sexualised behaviours displayed by X have been exaggerated, fabricated, or misconstrued.
Significantly, the father does not appear to suggest that the mother is the perpetrator of sexual abuse against X and/or that she has encouraged or influenced the disclosures she has made.
All of this begs the question as to why it is that X has behaved in the way that she has, coupled with why it is that she has made the disclosures that she has to various persons.
While it may not be possible to answer these questions, in due course, the Court would be assisted by expert evidence (presumably obtained by the ICL) as to possible explanations for X’s behaviours and disclosures. That expert evidence is unlikely to require any observed interactions between X and the father, nor X and the mother. In addition, such expert evidence is likely to require particular expertise, which is separate and distinct to the expertise of a Court Child Expert.
With that in mind and given X’s concerning behaviours, the serious allegations of abuse, and the inability of any report writer to determine those allegations in any report process, the usefulness of any Family Report in these proceedings is likely to be limited to ascertaining X’s views about her living arrangements and the viability of the parties’ competing proposals, as ultimately informed by any findings that are made by the court.
The father asserts that if the Court did not obtain a Family Report now and leave the discretion of observing interactions to the Court Child Expert, there would be a lacuna in the evidence that the Court requires to hear and determine the parties’ competing parenting applications.
That position however cannot be correct when s 62G(1), envisages that a Family Report is not required in every parenting case, and where s 62G(5) empowers the Court to make orders and directions when ordering the preparation of a Family Report.
While it is noted that the Court Child Expert who prepared the memorandum dated 17 August 2020 was of the view that the Court Child Expert should have that discretion, three comments are to be made about that recommendation:
(a)Firstly, like any recommendation by a Court Child Expert, the Court is not bound to adopt that recommendation;
(b)Secondly, there has been a significant passage of time since that report was prepared, and the Court now has the benefit of a vast amount of evidence that was not available to the Court Child Expert, as identified earlier in these reasons; and
(c)Thirdly, it is a recommendation made without regard to the applicable legal principles and framework, and in particular those matters referred to at [50-53].
In addition, while the Court notes that the ICL is of the view that X is well supported by her L Counselling counsellor, and thus would be able to manage the impact of any observed interaction if that were to occur, this submission appears to ignore the fundamental question that the Court is being asked to decide in this matter, and that is whether there should be a relationship between X and the father whatsoever in the context of concerning sexualised behaviour and allegations of sexual abuse, and/or if there is to be one, on what terms and what conditions that relationship might best be maintained to ensure that X is protected from harm.
In all of the circumstances of this case as discussed in these reasons, I do not consider that I can ignore the potential negative impact on X (particularly to her psychological wellbeing) if she were required by the report writer to interact with the father during the Family Report process.
This is a relevant factor not only when considering Principle One of the Core Principles, but equally when regard is had to the primary considerations set out in s 60CC(2), and the need to protect X from harm.
It is for all of these reasons that I have come to the considered view that in all of the particular circumstances of this matter, there is to be a Family Report, however such report is to be limited to separate interviews between the Court Child Expert and each X, the mother and the father.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 20 December 2022
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