Luther & Luther
[2010] FMCAfam 761
•23 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LUTHER & LUTHER | [2010] FMCAfam 761 |
| FAMILY LAW – Interim parenting orders sought – best interests of young child – Father has previous conviction and prison sentence for possession of child pornography – recommendation for supervised time from Child at Risk Health Unit & from Office of Children, Youth & Family Support – Father seeks unsupervised time – assessment of “unacceptable risk”. |
| Evidence Act1995, s.140 Family Law Act1975, Part VII ss.60B(1)(a) & (b), 60CA, 60CC(2)(b), 60CC(3)(a), (b), (c), (d), (e), (f), (g), (i), (j), 61DA, 65DAA(1), (2), 69ZW |
| A v. A [1976] VR 298 M. Bourke, A. Hernandez, “The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography,” (2009) 24 Journal of Family Violence 183-191 |
| Applicant: | MR LUTHER |
| Respondent: | MS LUTHER |
| File Number: | CAC 1432 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 24 June 2010 |
| Date of Last Submission: | 24 June 2010 |
| Delivered at: | Canberra |
| Delivered on: | 23 July 2010 |
REPRESENTATION
| Advocate for the Applicant: | Mr M Slater |
| Solicitors for the Applicant: | Mark Slater Family Lawyers, Canberra |
| Solicitors for the Respondent: | Self Represented Litigant |
ORDERS
The child, [X] born [in] 2007 (“the child”), is to live with her Mother.
Until further order, the Respondent Mother is to have sole parental responsibility for the child. However, the Respondent Mother is to keep Mr Luther informed of any significant decisions in relation to the child.
Until further Order, the child spend time with the Father supervised at an agreed Contact Centre.
Pursuant to section 68L of the Family Law Act1975 an Independent Children’s Lawyer be appointed for the child [X] born [in] 2007 (“the child”).
The Legal Aid Office, ACT, is requested to make arrangements as soon as practicable for appropriate representation for the child.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.
Within 14 days of the date of these Orders, the parties and the Independent Children’s Lawyer each provide a two-page submission in relation to the regime for the duration and frequency of time that the child spends with the Father in accordance with Order 3.
Within 28 days of the date of these Orders, the parties and the Independent Children’s Lawyer file and serve brief written submissions regarding the preparation of the matter for final hearing.
The matter be re-listed for further mention on 16th September 2010 at 9:15am.
IT IS NOTED THAT:
The Chief Executive is requested to provide the Court with a brief submission regarding the future conduct of the proceedings.
The Chief Executive is also requested to provide to the Court the Actuarial Risk Assessment Scale and the Corrective Service’s Pre-Sentencing Report, dated 10/03/2010, in relation to Mr Luther.
IT IS NOTED that publication of this judgment under the pseudonym Luther & Luther is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1432 of 2009
| MR LUTHER |
Applicant
And
| MS LUTHER |
Respondent
REASONS FOR JUDGMENT
A. Introduction
Briefly stated, this case concerns whether Mr Luther should spend time with his three year old daughter, [X], on a supervised basis. He has a conviction for possession of child pornography. In 2006, he was sentenced to periodic detention, and placed on a two year bond for that offence.
In recent times, [X] has exhibited some sexualised behaviour which is concerning to her Mother. That conduct has been examined by relevant medical and other specialists.[1]
[1] Among other places, see the Child Protection Reports, notably dated 13th May 2010, provided by the Office of Children, Youth and Family Support, which are referred to later in these reasons.
Mr Luther vigorously denies that there is any risk to his daughter spending time with him and accordingly submits that his time with her does not need to be supervised.
The case comes before me on an interim basis for determination on the supervision issue. That issue is dependent on the Court’s examination and determination of any relevant “unacceptable risk” to [X] in the light of the materials currently available to the Court.
B. Procedural and other history
On 4th September 2009, the Family Court of Australia made orders between these parties, by consent, in relation to property only.
On 16th December 2009, by consent, I made orders in relation to some limited time that the Applicant, Mr Luther, would spend with his young daughter, [X]. She is 3 years old. At the time of making those orders, the Respondent Mother, Ms Luther, was represented by an experienced family law practitioner, as she was at the time of the consent property orders.
Also present at the time of the making of the December 2009 orders was Mr T, representing the Chief Executive of the [ACT] Office of Children, Youth and Family Support (“OCYFS”). OCYFS is part of the [ACT] Department of Disability, Housing and Community Services (“the Department”).
Part of the December 2009 orders provided for the Chief Executive of OCYFS to provide the Court with a Report, pursuant to s.69ZW of the Family Law Act 1975 (“the Act”). Leave was granted to the Chief Executive to inspect the Court file.
Certain documents were provided by OCYFS, which in turn were released to the parties on 5th February 2010.
Further orders were made on 23rd and 26th February, and again on
10th May, which provided for some unsupervised time between
Mr Luther and [X], subject to him not bathing or showering her except in the company of her Mother.
Pursuant to the orders of 10th May (by which time, I note, that
Ms Luther was not legally represented), a further condition was imposed whereby the unsupervised time between Mr Luther and [X] was subject to any recommendation or formal notification from an organisation, such as ‘Care & Protection.’ Further, Mr Luther was ordered to provide copies of Court records relating to his criminal conviction for possession of child pornography. The parties were also ordered to attend upon a family consultant; the latter was requested to provide a short report following the conference.
On 20th May, the Court received a letter from the Department in which concern was expressed for [X]’s safety in spending unsupervised time with her Father. The Department had confirmed with the Australian Federal Police Mr Luther’s conviction (the letter actually refers to “convictions”) in relation to accessing child pornography. The Department indicated that, in their view, the Respondent Mother would be “a protective factor in safe guarding [X] from risk of harm.” Accordingly, the Department recommended that [X]’s time with her Father be supervised.
By letter dated 31st May 2010, Mr Luther’s solicitor provided to the Court copies of (i) a search warrant, dated 15th November 2006; (ii) Imprisonment Order and Notice of Sentence, both dated 24th July 2006 (the sentence from the ACT Supreme Court was for Mr Luther to serve six months periodic detention for possession of child pornography); and (iii) a Good Behaviour Order, of the same date as the other Orders.
Further documents from OCYFS were released to the parties on
1st June 2010. Among them were (a) Child Protection Reports, and (b) a Report by Dr B, dated 17th May 2010. Dr B is a Community Medical Officer from the Child At Risk Health Unit (“CARHU”) at the Canberra Hospital. I will deal with Dr B’s Report first.
Having found that the genital examination of [X] was normal, nonetheless, Dr B said (Report p.4, line 160):
Physical examination alone does not contribute significantly to the investigation into the concerns of possible sexual abuse. [X] has not made any clear disclosure of sexual abuse from her mother’s account. The history however raises a number of issues which indicate that [X] is at high risk of being sexually abused or of being groomed for sexual abuse.
Dr B then listed four areas of concern that gave rise to the opinion she expressed. Those four factors were: (i) developmental factors,[2] (ii) behaviours, (iii) Father’s history of child pornography possession, and (iv) Ms Luther’s capacity to protect her daughter.
[2] In this regard, Dr B observed (Report p.4, line 165) that “[X] is developmentally too young to be taught protective behaviours, to understand inappropriate adult behaviour and to be able to discern when she should do as she is told by an adult and when not to.”
At p.5 of her Report (lines 210 & 215), Dr B concluded:
Informed by the literature on Child Sexual Offenders, and based on the history given, I strongly and without reservation recommend that contact between [X] and her Father is supervised, throughout her childhood.
I have notified Care and Protection Services about the concerns for [X]’s safety. I think that Ms Luther needs support in the Court to protect her daughter. A referral to CARHU health professionals for education and support may be of assistance to Ms Luther.
In relation to the Child Protection Reports provided by OCYFS, I note the following from the Report dated 13th May 2010: (i) the child was observed (and recorded on film by her Mother) engaging in autoerotic behaviours; (ii) it is alleged that Mr Luther threatened to burn down
Ms Luther’s house if he was denied time with [X]; and (iii) the case-worker’s analysis stated:
... There are indications that Mother had previously tried to ensure the child’s safety however the father’s continued emotionally abusive behaviour towards mother in order to intimidate her. Father has a recent conviction of child pornography as recent as 2006, and although he completed the Sex Offender Program, the Risk of Re-Offending was reduced from 8 to only 7 on the Actuarial Risk Assessment Scale (Corrective Service’s Pre-Sentencing Report, dated 10/03/2010).
Also on 1st June, with the attendance of Ms Nuttall on behalf of the Chief Executive, Mr Slater on behalf of Mr Luther, and Ms Luther in person, directions were made for the provision of written submissions by close of business on 21st June prior to an interim hearing on 24th June, at which the Court would consider the issue of supervision.
By letter dated 16th June, Mr T (a Senior Manager at OCYFS) provided brief submissions on behalf of the Chief Executive. After noting comments from Dr B’s Report, Mr T submitted:
The Chief Executive would have serious concerns if the father was to have unsupervised contact with his daughter. ...The Chief Executive supports Dr B’s recommendation that there should be a continuation of supervised contact until [X] is of an age that she would be able to adopt protective behaviours.
...the Chief Executive is not in a position to fund supervised time....
The Chief Executive does not intend to intervene in these proceedings, but we ask that the Court consider the Child Protection Reports, Dr B’s report and the father’s criminal record when making its decisions regarding contact.
Mr T’s submissions were copied to Mr Luther’s solicitor, and to
Ms Luther’s former solicitor.
Mr Slater, on behalf of Mr Luther, provided written submissions that were filed on 21st June; Ms Luther also provided written submissions, which were filed on 17th June. On 24th June, a short interim hearing was held.
On 2nd July, a Short Report was provided to the Court by a family consultant (Ms W), following the family conference. That very short note has since been released to the parties. In my view, it does not take the matter any further than the detailed material already before the Court.
C. Principles and consideration of issues
I do not propose dealing, other than in passing, with various contentions made by both of the parties. For example, Ms Luther contends that Mr Luther has various male boarders living at his residence. Mr Luther denies this, save that he says that he rents out rooms in his house to both male and female lodgers. Similarly,
Mr Luther contends that each of the accusations of inappropriate behaviour towards [X] made by Ms Luther [coincidentally] occurred “almost immediately after I announced to the Respondent that I was travelling overseas to meet a new girlfriend or prospective wife.”[3]
[3]Ms Luther also contends that when Mr Luther is overseas and he speaks with [X] via Skype, he has had a girlfriend in the background in suggestive poses, which are plainly visible to [X].
At an interim hearing such as this, save for clear and unrefuted evidence, the Court is in almost no position to make any relevant findings.[4]
[4] Cf. the Full Court’s observation to like effect in Goode v Goode (2007) 36 Fam LR 422 at p.445 [82(d)].
Having regard to the immediate application before the Court, the principal question is solely as to whether Mr Luther’s time with his daughter should be supervised. This necessarily involves a consideration of what is and what is not an “unacceptable risk” to [X] on the evidence before the Court,[5] and in the light of the statutory and other jurisprudential considerations that must be taken into account in framing orders that are in her best interests.[6]
[5] Among many cases and other relevant materials in relation to “unacceptable risk”, see M v M (1988) 166 CLR 69; Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303; Johnson & Page (2007) FLC ¶93-344; Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401; and Amador & Amador [2009] FamCAFC 196, especially at [86] – [96]. See also the helpful summary in J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295, especially at pp.265-266, cited with approval in Johnson & Page at [68] and [71], and R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 237 Australian Family Law Bulletin 2-6.
[6] See s.60CA.
I begin by framing the following discussion by a summary of the relevant statutory and jurisprudential principles as set out by Brown J in Mazorski v Albright. At [3] – [6], her Honour said (which I gratefully and respectfully adopt):[7]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[7] (2008) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
For present purposes, it is not possible to over-emphasise the protective responsibilities of the Court towards children. Such an emphasis, of course, does not exclude the other relational “pillar”, to which Brown J referred, noted above.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[8]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65DAA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[8] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121].
[23] When considering s65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
I proceed by considering firstly the relevant parts of the legislative pathway in Part VII of the Act.[9] Then I consider the nature and extent of the “risk” as identified in the evidence before the Court.
[9] In considering the legislative pathway, I will deal only with those parts that appear to me to be directly relevant to the current application.
Given her young age, there are no “views” of the child to consider.
Next, there appears to be no question that [X] has a relationship with her Father; there is no question that Ms Luther is her primary carer, and Mr Luther does not seek to disturb this.[10] Unfortunately, there is little evidence that would enable the Court to make any considered assessment of the nature of the relationship which Mr Luther has with [X].
[10] It would also seem to be the case that there is no issue about Ms Luther being able to provide for all of [X]’s needs: cf. s.60CC(3)(f).
It is certainly the case that [X] has spent not insignificant time with her Father, sometimes supervised by her Mother, sometimes not. One may infer that the relationship is sound but, as indicated, there is little before the Court in this regard from any independent source.
Except for what has already been observed (and what is noted below) in relation to the strained relationship between the parties, it seems not greatly disputed that Ms Luther seeks to encourage [X]’s relationship with her Father – a matter relevant to s.60CC(3)(c) and (i). For his part, in this regard, Mr Luther contends (as I have noted) that
Ms Luther’s accusations against him have seemingly coincided with him seeking other “companionship” in the Philippines. He also contends that, when it suits her, Ms Luther seeks his assistance in relation to a range of matters, such as fixing her car, and in relation to which (he submits) she seeks to exert some “extra leverage” (my words) by linking such assistance with him spending time with [X].
Ms Luther also submits that she was the subject of psychological abuse in the course of her relationship with Mr Luther.[11]
[11] Cf. s.60CC(3)(j).
In the circumstances of this case, subject to its duration and given [X]’s young age, a not insignificant consideration is, if I order that
Mr Luther’s time with [X] be supervised, what impact is this likely to have on the development of a “meaningful relationship” between Father and daughter?[12] Put another way, subject to duration and its circumstances (including cost), supervised time between Mr Luther and [X] is a relevant consideration under s.60CC(3)(d) and (e).
[12] This possible dimension and impact of supervisory orders on a parent/child relationship was considered by Bryant CJ and Kay J in Napier v Hepburn at [84], and later by Boland J in Moose & Moose at [119].
On the limited and untested evidence before the Court, it seems to me that, at the least, the Court would be entitled to form the [unsurprising] view that there are not insignificant strains between the parents, not least because of the allegation(s) of risk levelled against Mr Luther in relation to [X].
I will come back to the consideration of what orders are in [X]’s best interests after I deal briefly with the issue of “unacceptable risk.”
D. Unacceptable risk – principles and discussion
The Court has before it Mr Luther’s strenuous denial of him having abused his daughter in any way (and there is certainly no evidence of this having occurred), and an equally strenuous denial of [X] being, in any way, “at risk” while in his care.
On the other hand, the Court also has before it: (i) Mr Luther’s limited criminal history for possession of child pornography; (ii) a series of Child Protection Reports from OCYFS; (iii) a Report from Dr B from CARHU at the Canberra Hospital with a clear recommendation of the need for Mr Luther’s time with [X] to be supervised; and (iv) submissions on behalf of the Chief Executive that support Dr B’s recommendation for supervised time.
Earlier in these reasons I referred to the summary by Brown J in Mazorski v Albright of the Court’s responsibilities under Part VII of the Act. A signal part of those statutory responsibilities, as I have observed, is to protect children from “physical or psychological harm [and] from being subjected to, or exposed to, abuse, neglect or family violence.”[13]
[13] S.60B(1)(b) & s.60CC(2)(b).
Earlier in these reasons I also noted a number of seminal cases that deal with “unacceptable risk”. The starting point for such a discussion is the High Court’s comments in M v M.[14] The High Court said:[15]
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
[14] M v M (1988) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ).
[15] (1988) 166 CLR 69 at pp.76 & 77 [22].
The High Court went on to make the following further observations in relation to “unacceptable risk”:[16]
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access)[1986] FLC ¶91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 BCLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) [1987] 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[16] (1988) 166 CLR 69 at pp.77 & 78 [24] & [25]. The basal principle from M v M in relation to “unacceptable risk” set out in [25] of that judgment has most recently been referred to by Gleeson CJ in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at p.593 [22].
I move to the more recent discussion by the Full Court in the joint judgment of Bryant CJ and Kay J in Napier v Hepburn. At [84], and again at [91], their Honours said:[17]
[84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[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....
[17] Warnick J agreed, at [113], with this analysis of the joint judgment in upholding the appeal.
Likewise in Johnson & Page, the Full Court (May, Boland & Stevenson JJ) examined at length the proper approach to issues concerning “unacceptable risk.” The Court quoted with approval the extended discussion in Napier v Hepburn on “unacceptable risk” and the course that should properly be pursued by a court in such an assessment, including the detailed citation (with obvious approval) of the dissenting judgment of Fogarty J in N v S.[18] For current purposes it is sufficient to note the following series of questions posed by Fogarty J in N v S, as cited by the Full Court in Johnson & Page at [66]. The relevant part of that judgment is as follows:[19]
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
[18] (1995) Fam LR 837 at pp.859-861.
[19] See Johnson & Page (2007) FLC ¶93-344 at p.81,889 [66]. The same extended quotation from N v S is located in Napier v Hepburn (2007) 36 Fam LR 395 at p.406 [56]. Napier v Hepburn’s discussion of N v S was also considered and supported by the further Full Court decision in Potter v Potter (2007) 37 Fam LR 208 at pp.231 – 231 [124] & [125].
I have previously noted that the Full Court in Johnson & Page, at [68], [71] and [72], expressly endorsed the comments of the Hon J. Fogarty in his article, “Unacceptable risk – A return to basics” (“the Fogarty article”).
Of the “seven point summary” set out in the Fogarty article, noted in particular at [71] in Johnson & Page, on the facts of this case, and at the current stage of the proceedings, it seems to me that points 1, 2, 5 and 7 are the most immediately relevant.
Thus, point 1 from the Fogarty article refers to the statutory and self-evidently fundamental cornerstone of any order involving a child, namely that the decisive issue is and always remains the best interests of that child.[20] As Fogarty rightly says: “All other issues are subservient [to the best interests of the child].”[21]
[20] See s.60CA of the Act.
[21] “Unacceptable risk – A return to basics” 20 AJFL at p.266.
Fogarty’s second point is as follows: “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[22]
[22] Ibid – emphasis added.
Fogarty’s fifth point states: “The concentration of these cases should normally be upon the question whether there is an unacceptable risk to the child.” Point six says: “The onus of proof in reaching that conclusion is the ordinary civil standard.”
Importantly for current purposes, point seven observes: “But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.” (Emphasis added.)
For the sake of completeness in relation to the standard of proof, I note the Full Court’s discussion of s.140 of the Evidence Act1995, in the light of relevant High Court authority. In Johnson & Page, at [69] – [70], the Court said:
[69] Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
[70] We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [footnotes omitted]
Although determined prior to the introduction of the Evidence Act the principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)
I turn then to the two basic questions in the light of the authorities I have referred to above. The two immediate questions in this case are: ‘what is the nature of the risk’ and ‘what is the degree of the risk’ in relation to [X] spending time with her Father unsupervised?
On the material currently before the Court, the nature of the risk is expressed in Dr B’s expert report as the risk to [X] of “being sexually abused by her Father” or “being groomed for sexual abuse”.
I have noted already Mr Luther’s strenuous denial of posing any risk to his daughter. I also readily accept that, at this interim stage of proceedings there has been little or no chance to test any of the evidence before the Court, including Mr Luther’s denials.
Notwithstanding the unqualified denials, the Court nonetheless has before it the expert Report of Dr B. That Report and its recommendations are supported by OCYFS. Dr B’s report, to some degree, relies on recent studies which link the use/possession of child pornography (for which Mr Luther has been convicted) and the risk of abuse. The Court also has the Child Protection Reports, which refer (among other things) to [X]’s sexualised behaviour. Those Reports also refer to an alleged threat by Mr Luther to burn down the house of he was denied his time with [X].
In terms of the “degree of risk” to [X], Dr B assesses it as “high.” In the Child Protection Reports, there is reference to Mr Luther’s Actuarial Risk Assessment Scale in relation to “Risk of Re-Offending”. It is a quite recent assessment. Mr Luther’s risk of re-offending was reduced only by a single point, from 8 to 7.
In my view, using the terminology from the Fogarty article, endorsed by the Full Court in Johnson & Page, it is the “accumulation of factors” – Mr Luther’s conviction for possession of child pornography, Dr B’s [recent] expert Report, the [recent] Child Protection Reports, the Actuarial Risk Assessment Scale/Risk of Re-Offending - which compel the Court to make an interim order that [X]’s time with her Father be supervised. Moreover, the fact that (i) the reports before the Court are very recent, (ii) the recommendations for supervision come from an expert within a clinical department at Canberra Hospital that is dedicated to the assessment of ‘children at risk’, and (iii) the recommendations are supported by a government department well versed in matters of the kind currently before the Court, are all compelling factors in making an order for supervised time.
In reaching this conclusion, two other matters need to be noted. First, this order should also be seen as protective not only of [X] but also of her Father. It should ensure that no adverse allegation is made against Mr Luther until a final hearing.
Secondly, the material before the Court also presents a further tension. On the one hand, Ms Luther confirms that she wishes the supervised time between Mr Luther and [X] not be at an institutional contact centre and that she can or should be the supervisor. On the other hand, not only does she raise concerns about dealing with Mr Luther in the light of their troubled relationship, but also OCYFS confirms that case workers have expressed concerns about Ms Luther being able to with-stand what might be described as Mr Luther’s psychological intimidation or abuse of his former wife.
In all of the circumstances, in my view, until further order it is essential that supervision take place at a contact centre.
I ask that, in the absence of agreement, the parties, and the soon-to-be-appointed independent children’s lawyer, provide the Court with a two- page submission in relation to the frequency and duration regime for the time that [X] should spend with her Father. This should be in the light of what inquiries are able to be made in relation to the availability of times and days at the various centres that are convenient to the parties. The respective proposals should be provided to the Court within 14 days of the date of these orders.
E. Conclusion
In making the orders in these proceedings, which I consider to be in [X]’s best interests, I recall the important observations of Warnick J in his separate judgment in Napier v Hepburn, at [114]:[23]
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change.
[23] His Honour’s observations have since been cited and endorsed in Johnson & Page, at [67], and by the later Full Court decisions in Potter v Potter at [125], and Partington v Cade (No.2) at [47].
The central questions in these proceedings at this stage, and almost certainly at a final hearing, remain ‘what is the nature of the risk to [X]’ and ‘what is the degree of risk to her’ in spending unsupervised time with her Father? Addressing these now, in the light of the expert Report and other documentary evidence before the Court, it seems to me, will provide (using Warnick J’s terms) an appropriate “platform, for any future consideration of the family’s circumstances” and will “illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change.”
Two final matters: first, the circumstances of the case require that an independent children’s lawyer be appointed. Secondly, after the ICL has been appointed and has had the opportunity to read the relevant materials from the Court file, I request that the parties, the ICL, and the Chief Executive, provide brief written submissions regarding what preparations should be made for a final hearing. To enable the steps I have indicated to occur, the submissions requested are to be provided within 28 days of the date of these orders.
The matter will be listed before me for further directions on 16th September 2010 at 9.15am.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 23rd July 2010
See Mr Luther’s affidavit filed 10th May 2010, par.15. Parenthetically, I note that Mr Luther and
Ms Luther originally met in Bangkok.
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