Lilley & Gabor
[2023] FedCFamC2F 1427
•29 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lilley & Gabor [2023] FedCFamC2F 1427
File number(s): MLC 3265 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 29 September 2023 Catchwords: FAMILY LAW – REVIEW of Interim Orders made by senior judicial registrar changing child living arrangements, change of school and restraint on contact with step-father – earlier court findings exonerating the step-father of sexual abuse allegations Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, s65D
Evidence Act 1995 (Cth) s140
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07(1)
Cases cited: Bringinshaw v Briginshaw (1938) 60 CLR 336
Eaby & Speelman[2015] FamCAFC 104
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69
Marvel & Marvel[2010] FamCA 240
Murphy & Murphy [2007] FamCA 785
Napier & Hepburn [2006] FamCA 1316
SS & AH[2010] FamCAFC 13
White and Mathers [2012] FamCA 645
Division: Division 2 Family Law Number of paragraphs: 55 Date of last submission/s: 25 September 2023 Date of hearing: 25 September 2023 Place: Hobart – Via Ms Teams Counsel for the Applicant: Mr Werner Counsel for the Respondent: Ms Jeans ORDERS
MLC 3265 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GABOR
ApplicantAND: MR LILLEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
29 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Review is allowed.
2.That paragraphs 1,2, 3, 4, 7, 12 and 15 of the Orders of 24 July 2023 be discharged.
3.That until further order the child X born 2014 live with the Mother, commencing 30 September 2023 at 11.00 a.m.
4.That until further order X spend time with the Father:
(a)During school terms, each alternate weekend from 5.30 p.m. Friday until 6.30 p.m. Sunday;
(b)During holidays, for half of all school holidays on a week about basis commencing the day school concludes with the first week being with the father and being inclusive of Christmas Day in ‘odd’ years and with the mother in ‘even’ years; and
(c)By telephone on 3 occasions per week at agreed times and failing agreement at 4.30 p.m. on Monday, Wednesday and Thursday.
5.In relation to the summer holidays in the 2023/2024 school holidays the following arrangements apply for time with the father:
(a)From 5.00 p.m. on 20 December 2023 to 5.00 p.m. on 26 December 2023.
(b)From 5.00 p.m. on 2 January 2024 to 5.00 p.m. on 9 January 2024; and
(c)From 5.00 p.m. on 16 January 2024 to 5.00 p.m. on 23 January 2024.
6.That changeovers be at Town B McDonalds.
7.That until further Order X attend G School.
8.The Mother will do all things to ensure that X refers to Mr D by his given name and not ‘Dad’.
9.That until the last day of X’s school term 2023:
(a)The Mother be in substantial attendance when Mr D and X are in the home together; and
(b)The Mother is not required to be in substantial attendance when Mr D is attending X’s community based extracurricular activities or school (including school transport pick-ups).
(c)That the Mother accept and facilitate any visit from DFFH to verify compliance with these Orders.
10.The Mother and Father are restrained from exposing X to family violence as defined in s 4AB of the Family Law Act 1975 (Cth) nor allowing any other person to do so.
11.The Application for Review filed 31 July 2023 be otherwise dismissed.
12.The matter otherwise remains listed for Directions before the senior judicial registrar on 21 November 2023 at 12:00 noon.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Introduction
These are the published Reasons originally delivered on 29 September 2023. The Reasons have been slightly edited to correct grammatical errors and improve the structure for ease of reading.
This is an Application for Review filed by Ms Gabor (‘the Mother’), seeking a review of the interim Orders (‘the Orders’) made by a senior judicial registrar (‘SJR’) on 24 July 2023. Mr Lilley (‘the Father’) is the Respondent. Pursuant to Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an Application for Review is to be heard as an original hearing.
The Orders relate to the child X born 2014 (now 9 years of age). The Orders changed X’s long‑term living arrangements — from being in the primary care of his Mother to spending time with the Mother once each week (on Saturdays for daytime only), changing his school and terminating his contact with his Stepfather, Mr D.
Background
The parties’, now both aged 50, were in a de facto relationship for five years, having separated in 2017.
The Mother is now married to Mr D, whist the Father has re-partnered with Ms E — with whom he lives with her two children.
The parties reside over two hours away from each other. X was attending school at G School whilst living with the Mother, but moved to F School after the Orders were made for X to live with the Father.
The parties’ positions’
Both parties' and the Independent Children’s Lawyer (‘ICL’) filed case outlines detailing their arguments and the documents they relied upon. A Statement of Agreed Facts was also filed setting out the relevant background — including the details of the earlier proceedings in this Court, the earlier child protection proceedings, and the proceedings in the Magistrates Court in relation to an interim intervention order obtained by the Father.
The Applicant sought orders that X live with her and spend time with the Father each alternate weekend, and for half of the school holidays and by telephone three times per week. She also accepted that there should be an injunction preventing Mr D being referred to as ‘dad’ and — until the last day of X’s school term — that she be in substantial presence when X and Mr D are together.
The Father sought to retain the Orders made on 24 July 2023 — including the restraint upon Mr D being brought into contact with X.
The ICL’s position changed quite dramatically on the day of the hearing. Prior to that date, the ICL had sought to retain the Orders of 24 July 2023 — primarily because the ICL was not satisfied that the Mother would act protectively and appropriately supervise X when in the company of Mr D. At that time the ICL accepted that Mr D had likely abused children in his care sometime prior to 2012. However, on the morning of the hearing, the ICL supported the Mother’s case after she became aware that in a judgment of Stephenson J from 2012, Mr D had been exonerated of allegations that he had sexually abused children known as T, C and S.
Stevenson J said the following in relation to T:
82.In the JIRT interview [T]’s complaints related to washing of her genital area by her father. She specifically denied that he touched her vagina at any other time. She told JIRT that the father washed her “rough[ly]” and that “it hurt”. It could well have been that the father inadvertently and unintentionally caused [T] pain when he washed her genital area.
83.[T] has been counselled by [Ms M] on the basis that sexual abuse by the father is a fact. The mother has had abundant opportunity to reinforce a belief on [T]’s part that the father sexually abused her. [T] has given evidence in AVO proceedings against the father.
84.In my view, there is a plausible innocent explanation for [T]’s complaints that the father touched her in the genital area. She told JIRT that touching occurred only in the context of bathing and specifically denied any other occasions of concern to her. There has been reinforcement of [T]’s belief that the father sexually abused her by [Ms M] and most probably the mother.
85.In these circumstances I am satisfied, and I find, that the father did not sexually abuse [T]. Nothing in the evidence persuaded me that she would be placed at unacceptable risk of sexual abuse if placed in his unsupervised care.
Then in relation to C:
89.[C] thus made no complaint to JIRT of sexual abuse by the father. He described assistance with bathing from the father which is within the normal limits of parenting. I am satisfied, and I find, that the father did not sexually abuse [C]. I find further that there is no unacceptable risk that the father would sexually abuse [C] if the child were placed in his unsupervised care.
And in relation to another child S:
105.Overall, it seems to me that a picture emerged of a volatile, mutually abusive relationship between the parents and a household which was characterised by frequent shouting and altercations. All of the children gave graphic descriptions of verbal and physical altercations between their parents when interviewed by JIRT officers. This environment could only have been significantly stressful for [T], [C] and [S] and reflects no credit on either parent.
106.I am persuaded, and I find, that the father treated [S] insensitively in an emotional sense and subjected him to physical abuse. It is utterly inexcusable that he showed a naked photo of his mother to the boy. Of course, it is to the father’s credit that he now apologises for his actions but his lack of insight into [S]’s needs and evident self-focus at the time remain matters of concern. I am not persuaded that the father subjected S to sexual abuse.
That decision — White and Mathers [2012] FamCA 645 — was relied upon and referred to extensively by all parties.
The ICL had also recently spoken to X. I was informed that X had expressed a clear preference to return to live with the Mother, his previous school, and the company of his friends. He did not speak disparagingly of his time with his Father but stated a clear preference to live with the Mother. He did not report any ill treatment from Mr D and spoke somewhat fondly of the activities they did together. These observations accorded with those of the Court Child Expert (‘CCE’) in her report of 24 July:
12.[Ms Gabor] and [Mr D] brought [X] to the Melbourne registry for interview. [X] was sat next to [Mr D] on arrival and immediately approached and hugged him following interview. [X] referred to [Mr D] as “[Mr D] dad” and [Mr Lilley] as “dad” during interview. There was one occasion when he referred to [Mr Lilley] by his first name and confirmed he sometimes finds it confusing calling them both dad. [X] presented as polite young child who at times became teary when discussing his father.
13.[X] advised he enjoys school, particularly playing with his friends and his sports lessons. He discussed how he attends [sports] lessons and is transported by various family members including his parents and [Mr D].
14.[X] spoke positively about his mother and [Mr D] describing them both as “fun and nice”. He discussed undertaking activities such as walking their dog, going to the beach or going for long drives. When asked whom he turns to when worried or upset, [X] identified his mother and [Mr D]. [X] expressed an awareness of the Intervention Order (IVO) in respect of [Mr D]. He stated he is excited the intervention order is due to expire, as he believes this will enable [Mr D] to spend time with him unsupervised. When asked why he would be excited by this, he had difficulty articulating any reasons.
15.[X] verbalised comparisons between time with his father and time with his mother and [Mr D]. He spoke quite positively about the activities he undertakes with his mother and [Mr D]. He provided a narrative which suggested he has difficulty being away from his mother for longer periods during school holidays. In contrast, [X] became visibly upset when discussing his father and repeatedly stated during interview that he does not wish to spend time with him. [X] frequently stated he was “worried” but had some difficulty verbalising the cause of his worry. When explored further, he recalled memories, which aligned with [Ms Gabor’s] allegations of [Mr Lilley] drink driving with [X] in the car and [Mr Lilley] dragging him during a family violence incident. He also stated his father refuses to allow him to call his mother and this makes him sad. He referred to the period when he was placed in his father’s care believing his father withheld him and is concerned this may occur again. When asked what could be different, [X] comments suggested he has some awareness of the negative text messages [Mr Lilley] has sent to [Ms Gabor] and observed her to be upset. He also expressed a preference for his father to be similar to [Mr D] and for them to engage in activities.
The Applicant's submissions
Mr Werner, for the Applicant, submitted that the basis for the SJR changing X’s residence from the Mother to the Father has now been demonstrated to have been false, given the late revelation of Justice Stephenson’s 2012 findings. Consequently, the Court cannot be satisfied that X is at risk in the Mother's care, whether from Mr D or for any other person. That being the case, the orders of the SJR should be set aside and X should be returned to his long-standing care arrangements.
It was contended that Justice Stephenson’s findings that Mr D did not abuse the children in his care in or about 2010-2012, dismantles the assumptions and findings of not only the SJR, but also those of the child protection authorities, experts, and the Court Child Expert regarding Mr D. Further, it gives explanation to the Mother’s alleged reluctance to protect X from Mr D, notwithstanding undertakings having been given by the Mother in that regard. The Court Child Expert opined:
28.[Ms Gabor] was not available for a scheduled call to provide feedback. It seems [Ms Gabor] does not appear to understand or accept the concerns and/or risks associated to [Mr D]. This is likely to impair her ability to meet the needs of [X] to live with caregivers who are safe and reliable. Her limited insight into the risk may raise questions about her ability to meet and prioritise the needs of [X] over her desire to remain in a relationship with [Mr D].
It was submitted that the assumption that Mr D had in fact sexually abused children in his care has infected outcomes since 2012. Now that Justice Stephenson’s decision has come to light, concerns regarding Mr D should melt away. Further, there is no objective or credible evidence that Mr D has been inappropriate with X, or any evidence that X has been subject to risk in the Mother’s care.
The Respondent’s submissions
Ms Jeans, for the Respondent, submitted that notwithstanding the findings of Justice Stephenson regarding Mr D, there remains other aspects of the judgment that leaves her client, and should leave the Court, very concerned about Mr D and the risk that he poses to X. Those concerning parts of the decision are extracted here:
105.Overall, it seems to me that a picture emerged of a volatile, mutually abusive relationship between the parents and a household which was characterised by frequent shouting and altercations. All of the children gave graphic descriptions of verbal and physical altercations between their parents when interviewed by JIRT officers. This environment could only have been significantly stressful for [T], [C] and [S] and reflects no credit on either parent.
…
114.Counsel for the ICL stated very clearly in his final submissions that her proposal “does not depend on sexual abuse”. The major concern of the ICL was that the prospect of spending time with the father is seriously frightening for [T].
115.[Ms M] said in her oral evidence that [T] continues to express fear of the father. She considered that [T]’s fear is based on her actual experience but, as noted, she could not exclude the possibility that her problems are due to an over-load of information about the adult dispute from the mother. As indicated, I am satisfied that the mother has burdened T inappropriately with such material. Examples are [T]’s references to the sale of the former matrimonial home; the mother’s attendance at ‘the divorcion’ and lies being told about the mother by friends of the father in the present proceedings.
…
119.There is no doubt that [T] currently expresses strong opposition to and fear of spending time with the father. There could be any number of reasons why she is so oppositional and fearful but I am satisfied that she is genuinely frightened by the prospect of spending time with the father.
120.It seems to me that [T] experienced a chronically frightening, stressful environment in the family home prior to her parents’ separation. No doubt she was scared by some of the father’s behaviour, as indeed would have been the case with some of the mother’s conduct. In my view, it is significant that she has been spoken to by JIRT officers and [Ms M] about the father’s alleged behaviour toward her since the separation. She was present when the mother discussed with [Ms M] her intention to have the father charged with breach of the apprehended violence order. She gave evidence in the AVO proceedings but, according to [Ms M], she became too distressed to continue that process. In these circumstances, it is hardly surprising that she is currently fearful of the father.[1]
[1] White and Mathers [2012] FamCA 64.
The Father also alleged that in mid-2021 Mr D behaved in a concerning manner towards X, that he believes demonstrates that Mr D has not matured over the 10 years since Stephenson J handed down her findings. The Father deposes that over that weekend (in mid-2021),
I took [X] to the toilet, and after he finished having a wee, he was waving his penis around and thrusting his pelvis back and forth. I asked what he was doing. He said, ‘this is what [Mr D] does in front of me’.
Further, it was submitted that the Mother has shown an inability to comply with orders ensuring that X not be left alone with Mr D, and therefore cannot be trusted to abide by any existing protective orders that may be made — including that suggested by the Mother:
31.If [X] were to return to live with the mother, there is a risk to [X’s] relationship with the father due to [X’s] alignment with his mother, the mother’s attitude towards the father and the mother prioritising [Mr D’s] relationship with [X] over the father’s. This is identified by the CCE at paragraph 24 of her report and in the father’s Affidavit filed on 19 July 2023, where he deposes to receiving a text message from the mother on 20 March 2023 saying, “Stop talking shit about [Mr D] to [X]. He’s a better father you’ll ever be. Didn’t you listen to the Magistrate. There was no evidence of the historical allegations and your allegations was a lie.
The ICL’s submissions
Ms Elleray for the ICL, effectively adopted the Mother’s position, emphasising that the basis for the SJR’s concern for X’s welfare had now fallen away and there were no other risk factors significant enough to justify a change of the child's residence to the Father. The ICL did not accept that the other risk issues regarding Mr D, as found by Stephenson J, were enough for the Court to conclude that X will be at an unacceptable risk if he lives with the Mother.
The Law
In Marvel & Marvel[2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
…as has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).[2]
In SS & AH[2010] FamCAFC 13, the majority (Boland and Thackray JJ) discussed the care to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.[3]
[3] SS & AH[2010] FamCAFC 13 [88].
Their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[4]
[4] Ibid [100].
Of this, the Full Court in Eaby & Speelman[2015] FamCAFC 104 said:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.[5]
[5] Eaby & Speelman[2015] FamCAFC 104 [19].
I am also conscious of what was said by the Full Court in Napier & Hepburn [2006] FamCA 1316:
91.That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated.
And earlier:
82.We find it difficult to understand how those factors, without a further explanation by the trial judge, could safely lead the trial judge to conclude that there was an unacceptable risk of abuse. In order to reach that conclusion the trial judge needed to evaluate not only the seriousness of the behavior if it occurs, that is that the behavior would be unacceptable, but also the risk that the behavior is likely to occur. It might be unnecessary in the context of this case to emphasise that if the allegation is that the father has attempted to anally penetrate the child in a sexual manner or urinate upon the child for some form of sexual gratification, such conduct is likely to be extremely detrimental to the welfare of the child. 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 had 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. (Emphasis added)
In deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.[6] Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). There are two primary considerations and fourteen additional considerations. I have considered each of those sections when determining this matter, but I will only refer, in these Reasons, to those that are most relevant to my determination. It is noted that s60CC(2)(b) is to be given greater weight than s60CC(2)(a). This means that the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence, outweighs the benefit to the child of having a meaningful relationship with one or both of their parents.
[6] Family Law Act 1975 (Cth) s60CA.
Childs best interests: the s60CC factors
Many of these factors can be dealt with quickly on the evidence before me, albeit, some of the facts remain in dispute.
X has a meaningful relationship with both of his parents. He has expressed a view to the Independent Children's Lawyer that he would like to return to live with his Mother, as well as spend time with his friends, return to his former school and be in the company of Mr D —with whom he seems to have a good relationship. X is 9 years of age. His views must carry some weight and have obviously impressed the ICL. I acknowledge that the way X’s views were received and provided to the Court is somewhat unconventional. Whilst I acknowledge the limitations of the information, it is the best evidence I have of X’s views at this time. Having said that, that information is consistent with X’s views as expressed to the Court Child Expert extracted at paragraph 15 of these Reasons.
A return to the Mother's care is also unlikely to negatively impact X. He will be returning to the life that he has enjoyed — living primarily with his Mother in his familiar surroundings — and he looks forward to the prospect. I note that the Mother has had primary care of X since separation, with the Father having alternate weekend and holiday time with X. This excludes a period in 2022 for less than a month, when X was placed in the care of the Father by DFFH, before being returned to the Mother’s care in early 2022 by virtue of an Order of the Children’s Court. If X remained living with the Father he would do so in a familiar environment, but away from his usual primary carer, school, friends and familiar surrounds.
Both parents exhibited an ability to provide for X's needs, but each questioned the other party's attitude to parenting. The Mother gave the example of the Father unreasonably denying her requests for telephone time with X — producing text messages to establish her point that he lacks insight as to the importance of X’s relationship with her. I note that X also complained to the Court Child Expert in this regard ‘He also stated his father refuses to allow him to call his mother and this makes him sad.’[7]
[7] Child Impact Report prepared by Court Child Expert Ms H, 23 May 2023 [15] (‘CIR’).
The Father, made some acknowledgment of earlier poor behaviour of a similar nature to the Court Child Expert:
[Mr Lilley] acknowledged he has been verbally abusive on the telephone and has sent verbally abusive text messages to [Ms Gabor] when she has requested changes in spend time arrangements.
I agree that, on the face of it, the Father’s texts are concerning and the Father’s explanation for his rather rude responses to the Mother’s reasonable requests seem hollow. The Father also alleged that the Mother has not complied with existing orders and has herself demonstrated an unwillingness to promote the relationship. There is no doubt that there will be a forensic inquiry at trial about these matters, and both parties would be wise to ensure that X spends as much quality time with the other parent and that there is now an attitude of generosity — not restriction.
The remaining inquiry is whether X will be placed at an unacceptable risk if returned to his Mother's care, and in particular, will he be at an unacceptable risk of harm from Mr D if he does so. The Full Court in Isles & Nelissen clarified that unacceptable risk is not to be measured according to the civil standard of proof — on the balance of probabilities.[8] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[9] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s65D, by reference to the child or children’s best interests:
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 …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. 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.[10]
[8] Isles & Nelissen [2022] FedCFamC1A 97, [46]-[51], [86]; Bringinshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s140 (‘EA’).
[9] Isles & Nelissen (n 8) [83].
[10] Ibid [85].
The question before me is, therefore, whether X will, in the future (and on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities), be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable’.[11] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[12] The parenting orders ultimately made, in those circumstances and if appropriate, can include measures to mitigate the type of risk as characterised.
[11] M v M (1998) 166 CLR 69, 77-78, at which their Honour state that ultimately, the court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘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’ , and that ‘[t]he 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’. I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off “possibilities” in a prospective sense’, affirmed by the Full Court on appeal.
[12] Murphy & Murphy [2007] FamCA 785, [318] – [319].
It now seems clear that the assumption of the parties and the SJR going into the original interim hearing — that Mr D had sexually abused children in his care prior to 2012 — was in fact false. That a belief that Mr D had behaved in a sexually inappropriate manner towards children in or about 2011 had become accepted, demonstrates the insidious nature of false sexual abuse allegations. Here we have an example of where an allegation has become accepted as a fact by child protection authorities and courts. Experts had also assumed the allegation to be true which, in the case of T, led her to, not only be intrusively examined as a small child, but to undertake sexual abuse counselling for abuse that never occurred. The long-term impact on T is unlikely to be fully remedied. Those untrue assumptions have also infected these proceedings and as stated, were instrumental in leading to a change of residence for X in July 2023. It seems now to be accepted — at least by the ICL— that Mr D does not pose a risk of sexual abuse to X or indeed any other child. There is the allegation regarding ‘sword fighting’ from 2021— but those allegations are denied, and I am unable to make any finding at this early stage. In any event, there is a chasm between that type of alleged behavior and sexual abuse as earlier accepted to have occurred.
The Father remains concerned, however, that Mr D still poses a risk of physical and/or psychological harm to X. Ms Jeans points to other findings of Justice Stephenson as evidencing highly worrying behavior of Mr D in 2011 and 2012. Ms Jeans also points to the abovementioned allegation that Mr D waved his penis in X's presence and exposed X to sexualised behavior. These allegations are denied and do not find any corroboration from X to the Court Child Expert or the ICL.
Mr Werner, supported by Ms Elleray, submitted that the Court can have little faith in the finding that the children T, C and S, were frightened by Mr D. At that time, the children believed that they had been sexually abused by Mr D — particularly T — after undertaking counselling for abuse that did not occur and reinforced by her Mother. It is also clear from Justice Stephenson's decision that the household in which T, C and S lived was chaotic and there was regular conflict. That was, however, more than a decade ago and shares no correlation with the Mr D that the Mother knows. Importantly, there is no real existing objective evidence of Mr D behaving in a like manner to X.
I am not satisfied that the behavior of Mr D, as found by Justice Stephenson, currently exposes X to the unacceptable risk of being exposed to the same type of behavior. There is simply no evidence — other than some minor disputed evidence — that Mr D has behaved in any manner like that alleged in 2012. In fact, the discussions, and observations of X by the ICL and the CCE suggest that X has a very strong relationship with Mr D free from conflict and risk.
That said, Justice Stephenson found that T, C and S were frightened of Mr D and exposed to conflict. I must, at this stage of the proceedings act cautiously and conservatively when considering X’s best interests. This evidence provides a basis for there to be an injunction preventing X form being exposed to family violence — which also mitigates against future risk.
I am not, however, satisfied that considering all the matters that have been raised and the evidence before the Court, that Mr D poses an unacceptable risk of psychological or physical harm to X, particularly if I mitigate the risk further by imposing a restraint on the Mother exposing X to family violence.
I intend to make that a mutual order in that regard because of the information given by the Father to the ICL in the CIR:
16.[Mr Lilley] acknowledged perpetrating physical family violence toward [Ms Gabor] on one occasion. He denied strangling [Ms Gabor] whilst accepting he placed his hands around her neck during an argument. He stated he came to the realisation the relationship needed to end following this incident. [Mr Lilley] acknowledged he has been verbally abusive on the telephone and has sent verbally abusive text messages to [Ms Gabor] when she has requested changes in spend time arrangements.
17.[Ms Gabor’s] allegations of family violence echoed those noted within her affidavit dated 12 May 2023. She alleged the strangulation incident occurred following a period of intoxication and drug use by [Mr Lilley]. She alleged a violent incident occurred in the months following separation when [Mr Lilley] was allegedly screaming attempted to pull [X] from her arms.[13]
[13] CIR (n7).
I am also satisfied that risk mitigation is created by the bright light of these proceedings being focused upon all parties and Mr D. X appears willing to express his views, and if he is exposed to anything like the behaviour that was alleged of Mr D in 2012, he may report this. I also find there is merit in the submission that Mr D’s general behavior and attitude is likely to have improved over the ten years since the decision was handed down and by virtue of his relationship with Ms Gabor — again somewhat corroborated by X.
Conclusion
I have found that Mr D does not pose an unacceptable risk to X of physical, sexual or psychological harm — noting that, out of an abundance of caution, I will make an Order preventing X from being exposed to family violence.
I note X's desire to be returned to the living arrangements with which he was accustomed, and the good relationships he had with the Mother and Mr D in their primary care..
I also note the Father's challenges with alcohol. The mother does not seek to restrict the Father’s time, notwithstanding such issues. The CCE commented upon them:
26.The current impact [Mr Lilley’s] acquired brain injury has on his functioning, mental health and alcohol use is beyond the limits of this assessment. A parent with mental health concerns does not necessary preclude the ability to provide care for children. However, when concerns around mental health, impulsivity and aggression are exacerbated by the use of alcohol, the impact on [Mr Lilley’s] capacity to provide safe and consistent care for [X] may become compromised. Albeit [Mr Lilley] acknowledged drinking alcohol over a two‑day period in May 2023, he did appear to minimise concern about his mental health and alcohol use. Collateral information suggests [Mr Lilley] has had difficulty maintaining abstinence from alcohol and unstable mental health in the last 12 months. His comments suggest he recently used alcohol as a coping mechanism due to upset regarding [X]. Whilst it is positive to note [Mr Lilley] has sought professional support when he lapses, it will be beneficial for [X] if [Mr Lilley] can demonstrate sobriety and stable mental health over a prolonged period with continued access mental health and alcohol counselling and regular Carbohydrate-Deficient Transferrin (CDT) testing.
It should be stated that the Father denies that he has a brain injury such that it impacts his parenting capacity. He produced a report from Dr J to corroborate his position. That document evidences that, in 2018, he had mild cognition and memory issues and depression. It also evidences that he had an alcohol problem, with his doctor warning — ‘he does not have any significant peripheral nerve damage or central nerve system damage related to his alcohol use however if he continues to drink in large amounts this is bound to happen’.
In my view, it is in X's best interests for him to be returned to his Mother's care and for the arrangements, as set out in her proposal, to be implemented.
I should add that this is not a case, nor has anyone pressed for, there to be an order for equal share parental responsibility. Consequently, I do not need to consider whether an equal time or substantial time arrangement during school terms should be imposed. Such an arrangement would, in any event, be impracticable.
I will, therefore, make Orders in the terms of the Mother’s orders sought, save that I will add a mutual restraint upon either party exposing X to family violence.
As to the Mother being substantially present when Mr D and X are together — that restraint also acts as a further mitigatory measure in terms of any risk. Given my finding that Mr D does not pose an unacceptable risk to X, there appears little basis for it, however, as a transitionary measure, and again acting cautiously, I will make that Order.
Finally, I will make the order preventing the Mother from allowing X to call Mr D ‘dad’. I do note that X called Mr D ‘[Mr D] dad’ to the CCE whist referring to the Father as ‘dad’.
12.[Ms Gabor] and [Mr D] brought [X] to the Melbourne registry for interview. [X] was sat next to [Mr D] on arrival and immediately approached and hugged him following interview. [X] referred to [Mr D] as “[Mr D] dad” and [Mr Lilley] as “dad” during interview. There was one occasion when he referred to [Mr Lilley] by his first name and confirmed he sometimes finds it confusing calling them both dad. [X] presented as polite young child who at times became teary when discussing his father.[14]
[14] CIR (n7) [12].
X should not have to endure such confusion and it is incumbent on the Mother to remedy this situation as quickly as possible.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Turnbull. Associate:
Dated: 10 November 2023
[2] Marvel & Marvel[2010] FamCA 240 [120].
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