McEllis and McEllis

[2013] FamCA 585

FAMILY COURT OF AUSTRALIA

MCELLIS & MCELLIS [2013] FamCA 585

FAMILY LAW – CHILDREN – With whom the child spends time – Best interests of the child – Where allegations of unacceptable risk of sexual abuse made by the Mother – Where Mother alleges that the Father is a sex addict – Where child lives with the Mother – Where Father has spent supervised time with the child since separation – Where Father seeks orders to spend time with the child – Where Mother seeks orders for Father to have two hours of supervised contact with the child until the child is 18 years of age – s 60CC Family Law Act 1975 (Cth) – Finding that incident of sexual abuse alleged by Mother did not occur – Finding that no unacceptable risk to the child – Finding that child would benefit from having a meaningful relationship with the Father – Doctrine of Russell & Close – Finding that the Mother’s views, though subjectively held, are not genuinely held as they are baseless and irrational – Interim orders made for the Father to have daytime contact with the child graduating from being supervised to unsupervised – Child to remain living with Mother.

Family Law Act 1975 (Cth)

Archbold and Archbold (1984) 9 Fam LR 798
In the Marriage of A (1998) 22 Fam LR 756
Kerrison & Kerrison [2013] FamCA 3
MRR v GR (2010) 240 CLR 461
Russell & Close (Unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, Appeal SA45 of 1992, 25 June 1993)

APPLICANT: Mr McEllis

RESPONDENT: Ms McEllis

FILE NUMBER: BRC 10027 of 2009

DATE DELIVERED: 7 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 11,12,13 and 14 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Barry.Nilsson. Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodges

SOLICITOR FOR THE RESPONDENT: Kerry Barnes Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Commencing 10 August, 2013, the Father shall spend time with the child, B born … 2008, supervised by the paternal grandmother (should she be so willing) each Saturday or Sunday, whichever is more convenient, for four (4) hours, for a period of one (1) month.

2. Following the completion of Order (1) herein, the Father shall spend time with the child each Saturday or Sunday, whichever is more convenient, for four (4) hours, in the presence of the paternal grandmother (should she be so willing) for a period of one (1) month.

3. Following the completion of Order (2) herein, the Father shall spend unsupervised time with the child each Saturday or Sunday, whichever is more convenient, for four (4) hours, for a period of four (4) months.

4. In addition to Orders (1), (2) and (3) herein, the Father shall have telephone communication with the child at a time as agreed between the parties, or failing any such agreement, on Wednesday evenings between 6.30 pm and 7.00 pm, with the Father to instigate the telephone call and the Mother to make the child available for such telephone call.

5. The Father’s legal representatives to organise an updated Family Report to be prepared by Mr C, Consultant Social Worker, with the parties to share the cost of such report equally.

6. The Father’s legal representatives given leave to provide Mr C further filed documentation, any updated subpoenaed documentation together with any exhibits tendered at the trial of these proceedings on 11 March to 14 March 2013 respectively.

7. The parties shall attend and ensure the child attends all necessary appointments for the preparation of the updated Family Report.

8. IT IS REQUESTED Mr C prepare and release his updated Family Report by no later than 10 January 2014.

9. The proceedings be adjourned for mention before the Honourable Justice Bell at 10.00 am on 7 February 2014 at the Brisbane Registry of the Family Court.

10. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McEllis & McEllis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10027/2009

Mr McEllis

Applicant

And

Ms McEllis

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern a child, B, born in 2008 (“the child”). The Applicant Father, Mr McEllis (“the Father”) filed an Initiating Application on 21 March 2011. The Respondent Mother, Ms McEllis (“the Mother) filed a Response to the Father’s Initiating Application on 9 June 2011. The Mother then filed an Amended Response on 28 February 2012. 

2. As the evidence below demonstrates, the central issues in these proceedings have been: first, whether or not the Father poses an unacceptable risk of harm to the child; second, whether or not it would be in the best interests of the child to spend unsupervised time with the Father; and third, whether an order for unsupervised time would so affect the Mother as to have a detrimental impact on her capacity to parent the child. 

3. On 7 February 2012 Principal Registrar Filippello made interim Orders for the child to live with the Mother and for the Father to spend time with the child on a graduating basis, conditional upon the completion of a s 65L supervision order. The Father’s time with the child was ordered to be supervised by either of the Father’s parents, or by his sister.

4. In the Principal Registrar’s reasons for judgment at [47], she found that the Father does not pose an unacceptable risk of harm to the child, that it would be in the best interests of the child to spend supervised time with the Father and that, though the Mother, by a subjective standard, was of the belief that there was an unacceptable risk of harm to the child while in the Father’s care, this belief was “irrational and not supported by the evidence and casts doubt on whether the mother’s belief is genuinely held.”

5. On 19 April 2012 the matter came before me and interim consent Orders were reached between the parties. Pursuant to these Orders, the child was to live with the Mother and spend time with the Father twice a week supervised by the paternal grandmother and maternal grandmother.

6. The trial before me commencing 11 March 2013 took place over the course of four days. The Father submits that there is no unacceptable risk of harm to the child while in the Father’s care, that the Father has the requisite parenting skills and relationship with the child such that he should spend unsupervised time with her, that the child would benefit from immediately spending unsupervised time with the Father, and that the Mother would abide by and cope with any order of the Court.

7. The Father final seeks orders for unsupervised graduating time which leads up to overnight weekend contact each alternate week from Friday to Tuesday, and overnight contact from Wednesday to Friday in the off week.

8. The Mother submits that there is an unacceptable risk of harm to the child while in the Father’s care in light of the Father having abused the child on 31 March 2012, that it is not in the best interests of the child for the parents to have equal shared parental responsibility in respect of the child, that the Father should have supervised time with the child at a contact centre and that this will allow the child the continued benefit of a meaningful relationship with the Father, and that in light of the Mother holding a genuine belief that the Father poses a risk to the child, an order for unsupervised time to be spent between the Father and the child would so affect the Mother’s capacity to parent that she would be unable to continue functioning at her current level of care.   

9. The Mother seeks final orders for the child to live with her and spend a total of two hours of supervised time at a contact centre until the child is 18 years of age. The Mother also seeks orders for the child to have weekly phone contact with the Father on Wednesday evenings for a period of half an hour.

Factual Background    

1. The Father is 46 years old, having been born in 1967.  The Mother is 41 years old, having been born in 1970. 

2. The parties met in 2001 and began a courtship that lasted 12 months from 2003 to 2004. The parties then separated and recommenced their courtship in early 2006. The parties were married in 2007, separated in August 2008 and were divorced on 4 March 2010.  There was one child of the relationship, the child born in 2008 who is now aged 5 years.

3. This was the first marriage for both the Mother and Father, who were 36 and 40 respectively at the time of marriage. Notably, as highlighted by Mr C, Family Consultant, at paragraph 56 of the first of two Family Reports which he prepared for the purpose of these proceedings, ‘…[a]lthough the parents commenced their relationship at a mature age, it was evident that they each came to marriage without the usual experience of prior relationships accrued by many adults of the same age.’[1] During the course of these proceedings the Father has also been diagnosed as having an Autism Spectrum Disorder.

   [1]Paragraph 56, Family Report of Mr C dated 24 August 2011.  

4. At this point I also make note of the involvement of the maternal grandparents in the parties’ relationship. On the evidence before me, the Mother has always maintained a very close relationship with her parents and has lived with them for the majority of her adult life.  The Mother lived with her parents until she was 31, moved back in with them briefly during six weeks of morning sickness during the marriage, and then resumed living with them following separation with the Father.[2]  In the course of these proceedings this relationship has been referred to as being “enmeshed”[3]. Consequently, the strong bond between the Mother and her parents also entered into the relationship between the Mother and Father, and the input of the maternal grandparents was sought during some very private matters in respect of the parties’ marriage which are outlined below. 

   [2] See page 17 of Dr D’s report dated 6 December 2010. 

   [3] See page 17 of Dr D’s report dated 6 December 2010. 

5. The parties are both from conservative Catholic backgrounds. Their faith forms the basis for their fundamental values and beliefs, which have formulated the way in which they live their lives. The distress which the Mother has experienced as a result of many instances in these proceedings can undoubtedly be linked to her conservative values clashing with the behaviour of the Father.

6. As noted in the Family Report of Mr C filed 29 June 2012, the religious faith of the parties was a ‘…fundamental element to their relationship, as was their vow to defer sexual relations until after marriage.’ In her affidavit filed 24 April 2012, the Mother deposes that:

   …[the Father] went along with my Christian values and beliefs. He pretended to be the good Catholic boy, strongly concurring with me in regard to natural family planning, which excluded the use of contraceptives. He was against sexual relations before marriage and often quoted to me “God sees all that is done in secret”.

7. The Mother experienced great stress to later discover that the Father was not as equally sexually inexperienced as she was at the time of their marriage. Upon discovering this after the parties were married, the Mother took an underlying view that the Father was ‘…deceptive with her prior to separation and had misled her on this point from the very beginning.’[4]

   [4] Paragraph 36, Family Report of Mr C dated 24 August 2011. 

8. The marriage of the parties lasted approximately fifteen months, during which the parties experienced issues owing to their personal differences. Since separation, the Father has been diagnosed with having an Autism Spectrum Disorder which may well have attributed to or exacerbated the personal differences between the parties. The parties also experienced issues in respect of their differing views about sexual relations. During the course of family report interviews with Mr C, their opinions were observed as follows:

   [38] [the Father] found that after they married, their sexual relationship was guilt-laden and unfulfilling and that [the Mother], whom he asserts was controlling in most aspects of their life, also attempted to control their sexual life.

   [39] [the Mother] – who had heard this before – finds this allegation extremely hurtful, stating ‘one of the most horrendous things that he has said about me is that I didn’t have sex with him. That is so untrue and I cannot believe it.’ She thought that they were both adjusting to a normal sex life and the fact that she had fallen pregnant so soon into the marriage, but essentially she did not feel that there was anything amiss.

9. The Mother’s naivety was evident in her perspective about the sexual relations between the parties. As Dr D stated in his report:

   …she stated that their honeymoon was “the most confusing experience.” She stated that [the Father] “didn’t value that I was a virgin.” She stated that on the night of their wedding she was unable to consummate the marriage and was horrified that he decided to masturbate in front of her. She gave a fairly colourful description of this event and claimed to still be traumatised by it. She stated that when they finally worked out how to have sex she didn’t enjoy it and found it mechanical. She alleged that “he treated me like a prostitute.”

10. During both the the parties’ marriage and courtship, as deposed by the Father in his affidavit filed 17 April 2012, the Mother was very ‘…demeaning towards [him] and would criticise [him] for things which were trivial and at times, beyond [his] control, such as [his] snoring or the fact that [he suffered] with psoriasis.’[5] 

    [5] Paragraph 5, Affidavit of the Father filed 17 April 2012.

11. During a visit to Dr E, psychiatrist on 27 October 2008, the Father presented to Dr E some notes which detailed the various controlling and at times pedantic traits of the Mother. These notes were included in the report which Dr E later prepared. This report was subpoenaed and at trial was tendered by the Mother as item 16 of Exhibit 1. By way of these notes, the Father sought to make a case to the doctor that the Mother was suffering from a Paranoid Personality Disorder. Curiously, though tendered by the Mother, these notes were not directly contested during the trial. In these notes, the Father makes note of the various personality traits of the Mother which caused him to have these concerns during the marriage. The Father makes various references to the Mother’s temper, and her propensity to be overbearing and controlling in the relationship. Particularly, in the section titled “General Issues” the Father refers to the Mother’s dislike for the way that he shaved, as it was his habit to tap the razor against the sink in order to get the hairs out of it. The Mother was concerned that the sink would be damaged and she disliked the tiny hairs everywhere.  As a consequence, the Father would shave in the laundry. The Mother would also insist upon the Father washing his hands, and was particular about him drying them on hand towels and not tea towels.

12. The Mother asserts that the Father would deliberately attempt to annoy her by, for example, leaving doors open while they went away for three days so that she would know what it was like to have her home broken into.

13. Between the birth of the child and separation, the Mother had the primary responsibility for the child’s needs; the Father was working as a draftsman on a full-time basis. During this time, the Father and Mother hold differing views about their attitudes to parenting. As deposed at paragraph 8 of his affidavit filed 17 April 2012, the Father described the Mother as appearing ‘…very anxious and protective about the child and did not really give [him] the opportunity to be involved in the child’s care.’ On the Mother’s account, as detailed in the expert report of Dr D, the Father ‘…was not interested in the child and that she [the Mother] had to do all of the child care herself. She stated that he [the Father] would only help her with the baby if she asked him to.  She stated that she had to make all the decisions within the marriage and alleged that [the Father] didn’t have an instinct to protect [the child].’ [6]

    [6]Page 4, Dr D’s report dated 6 December 2010. 

14. In mid-August 2008, a number of pornographic magazines were discovered by the Mother in the Father’s car. The Father admitted to the Mother that these magazines were his own. These were tendered at trial by the Mother and marked as Exhibit 2.

15. The parties have had conflicting views in relation to the classification of the magazines. The Father, in his evidence, has described the magazines as being “mainstream heterosexual magazines”; the Mother has asserted that they were “hardcore” in nature. I am satisfied on the evidence before me that the Father’s description is more fitting. The Mother’s description of these magazines has only heightened her concerns about the risk that the Father poses to the child. This is so because she sees his inclination towards “hardcore” pornography, though between consenting adults, as being linked with an interest in child pornography. Though I will deal with the Mother’s views in relation to this topic later, I, at this point, seek to emphasise that on the expert evidence before me, as provided by Dr F, forensic psychologist and Mr C, a consultant social worker, the Mother’s view is entirely unfounded.

16. In late August 2008, the Father disclosed to the Mother that he was in possession of pornographic material including pictures of lingerie models which had been downloaded from the internet onto USB sticks. The Father informed the Mother that much of this material was stored in a “bum-bag” which he carried around with him. He would view this material in the shed at the back of their property which he kept locked at all times. Also included in the bum-bag was a miner’s light which the Father used to wear to access the shed and to view the material while in the shed as the shed was not connected to any power source. The “bum-bag” containing the miner’s light, some keys, an SD card, a USB, a USB adaptor  and a camera, was tendered by the Mother and marked as Exhibit 3.

17. On 26 August 2008, the Mother found the “bum-bag” on the kitchen bench and proceeded to open it and view its contents. When she attempted to view the material on the USB sticks and on the camera which she also found in the “bum-bag”, the pornographic material had been cleared.

18. When the Father returned home, he disclosed to the Mother that he had been visiting prostitutes both prior to and during the parties’ marriage. He had been doing so during the marriage in light of the Mother’s lack of interest in maintaining sexual relations with him after she fell pregnant six weeks after their wedding day. As both parties agree, the Mother’s decision not to have intercourse with the Father was largely due to the fact that she was suffering from very bad morning sickness at the time.

19. On the evidence before me, prior to marriage, the Father had attended approximately eighty prostitutes over the course of fourteen years. He had filmed some of these encounters. The Father’s attendance upon prostitutes began in his early twenties when a friend of his died, leading the Father to contemplate, and subsequently act upon, the idea that he may die a virgin. During the marriage, after the wife fell pregnant, the Father attended four prostitutes.  Up until the Father disclosed this to the Mother in late August of 2008, she was unaware of any of the encounters.

1. That same day, the maternal grandparents attended the home and became involved in the discussions. Arrangements were then made on the following day for the Father to attend counselling with Matt Austin at KBC Counselling Centre, Chapel Hill. The parties also attended the house of the paternal grandparents to inform them of the Father’s disclosures.

2. In light of the disclosures made to the Mother in respect of the Father’s sexual activities and the discussions between the Mother, the Father and the maternal grandparents which ensued, the Mother formed the view that the Father suffered from a serious sexual addiction, in respect of which she was of the view that the Father was not remorseful.

3. In her evidence at trial, the Mother described herself as a “victim of [the Father’s sex addiction” as a result their marriage. She went on to say, ‘…[h]e married me for a cure and said that marrying me was a calculated risk. I was a virgin and I was going to cure him of his long term addiction of over 20 years.’[7]

   [7] Page 10, Transcript of Tuesday 12 March 2013.

4. The Mother found herself in an extremely difficult and confusing situation in light of her values and beliefs. Not only was she extremely humiliated, especially, I believe, in light of the fact that her parents had become privy to this apparently shocking and devious behaviour of the Father, but her values in respect of the sanctity of marriage were also under challenge.

5. As noted in the Family Report of Mr C, the initial shock which the Mother experienced in relation to the Father’s disclosures and her initial hopes to salvage the marital relationship, eventually developed into anger and fear of the Father. This fear caused the Mother to form the view that he was a copycat offender of the ‘Bikeway Rapist’ in their local suburb, and she subsequently attended the police to voice her concerns. Ultimately, the Father was ruled out as a suspect and this accusation only increased his humiliation and acted to further damage the relationship between the Mother and Father.

6. Following separation, the parties made several unsuccessful attempts at mediation. As a result of there being no resolution achieved from mediation, the Father commenced parenting proceedings in the Federal Magistrates Court (as it was then known).

7. I note at this point that following separation, the Father’s time spent with the child was always supervised.

8. Pursuant to Order 5 of Principal Registrar Filippello’s Orders made on 13 March 2012, the child’s daytime contact with the Father was to be supervised by either of the paternal grandparents or the paternal aunt. Despite these Orders an incident of sexual abuse which is alleged by the Mother occurred while the Mother was supervising the time between the Father and child. 

9. The incident to which I refer occurred on 31 March 2012 during which time the Father was spending time with the child, supervised by the Mother, in a park. At the time of the alleged incident the child had just reached four years of age. It is acknowledged by both parties that the Father was assisting the child to climb a ramp and was supporting her as she did so. The Mother deposed in her affidavit filed 16 April 2012 that she observed the Father to have ‘…put one hand on the child’s upper back and his left hand was in an odd position, facing sideways with his thumb uppermost, right in the child’s crotch. He used this as a form of elevation as she climbed.’ The Mother then states that, upon the child having reached the top of the ramp, she was ‘…about to call out to the Father when the child reached the top of the ramp and the Father stood back and immediately withdrew his hand.’ The Mother then observed the Father ‘…hold his left hand up and in particular his thumb whilst he seemingly contemplated his thumb, giving a little laugh to himself.’

10. Consequently, on 16 April 2012, three days before the matter was to be heard before me on 19 April 2012 the Mother filed an affidavit detailing the alleged incident.

11. It is the Father’s case that the incident of 31 March 2012 was fabricated by the Mother in the lead up to the hearing before me. The Father submits that such fabrication is evidenced by the Mother’s reaction to the alleged incident, which is not indicative of a Mother who was genuinely concerned about the alleged incident of sexual abuse. As was put to the Mother at trial, the only steps she took in response to having witnessed the alleged incident is that she faxed her solicitor. She did not contact the police or the relevant authorities, despite having gone to the police when she believed that the Father had been a copycat offender of the “Bikeway Rapist”.

12. Following the hearing before me on 19 April 2012 in respect of which interim consent orders were made, the matter had various directions hearings before being set down for trial by Justice Murphy on 19 September 2012. At the time of trial, the Father had been seeing the child for one-and-a-half hours on Wednesday evenings and two-and-a-half hours on Saturday mornings in accordance with the orders of 19 April 2012. This contact was supervised by the paternal grandmother and the maternal grandmother.

13. Notwithstanding that an Independent Children’s Lawyer was not appointed in these proceedings, various expert reports have been prepared by psychiatrists, psychologists, general practitioners, family consultants and counsellors. The issues dealt with in these reports have been in respect of the parties’ mental health, the Father’s alleged sex addiction and his use of pornography generally, the Father’s capacity to appropriately parent the child, the Mother’s fears about the Father’s use of pornography and how that will impact upon his time with the child. A family report and an updated family report have also been prepared by Mr C, Consultant Social Worker. The findings in respect of these reports are dealt with below.

The Law

1. The making of parenting orders in respect of these proceedings is governed by the statutory framework detailed in Part VII of the Act which comprises ss 60A through to 70Q.    

2. Secondary to the legislation is the case law which provides guidance to the manner in which the legislation is to be approached. Particularly in respect of this approach, I refer to paragraphs [6], [7], [8], [9], and [13] of the decision of the High Court (comprising French CJ, Gummow, Hayne, Kiefel and Bell JJ) in MRR v GR (2010) 240 CLR 461.

Primary considerations

Unacceptable Risk 

1. In M v M (1988) 166 CLR 69, the plurality of the High Court comprising Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ identified the principles which are to be applied by a trial judge in respect of parenting cases that involve allegations of sexual abuse; these obligations were not affected by subsequent amendments to Part VII of the Act. I am mindful of those principles in my consideration of this matter before me.

2. Further, of the aforementioned principles, Justice Kent in Kerrison & Kerrison [2013] FamCA 3, having summarised those principles set out by the High Court, went on to state at [51] – [52]:

   …Outside of those cases falling at the extreme ends of the spectrum, on the one hand where the evidence and the circumstances of the case impel a positive finding that sexual abuse has actually taken place, and on the other, where the Court has no hesitation in rejecting the allegation as groundless, the High Court referred to, “…very many cases…” in which the Court, “…cannot make a finding that sexual abuse has taken place.”

   Thus, in many, if not most, cases where an allegation of sexual abuse is made, the evidence and circumstances will not justifiably permit the Court to make a positive finding that sexual abuse has or has not occurred. However, the Court must:

   a)Determine whether, on the evidence and circumstances, there is a risk of sexual abuse occurring in future; and

   b)Determine the magnitude of that risk; and

   c)Determine whether and how that risk may be addressed; and

   d)Determine whether, because of the nature and magnitude of the risk, there would exist an unacceptable risk that the child would be exposed to sexual abuse by the form of parenting orders made.

3. The only alleged incident of sexual abuse in the four years since separation is the incident of 31 March 2012 which the Mother submits occurred while she was supervising time between the child and the Father. In light of the evidence before me, I consider that this is in fact a case where the evidence before this Court is more than sufficient to “…[reject] the allegation as groundless”. I accept the Father’s evidence that it did not occur.  Both the reasons upon which the Mother bases her view that the Father would sexually abuse the child, and the circumstances of the incident itself, satisfies me of such a conclusion.

4. The Mother supports her view that the Father has sexually abused the child with her belief that he has a sexual interest in children. She bases this belief on her opinion that the Father is a sex addict and that the Father’s use of heterosexual pornography has increased his propensity to sexually abuse children. As detailed at paragraph 24 of the Family Report of Mr C dated 24 August 2011, the Mother’s views about the Father’s sexual interest in children are not based on her having ever found child pornography in his possession, but rather, she relies on “peripheral incidents as prefacing her allegation.” These “peripheral incidents” include a comment that the Father made to the Mother that he would “rather not” change the child’s nappy. The Mother states that, when considered in its context, the comment is indicative that doing so is a “sexual trigger” for the Father. Another “peripheral incident” to which the Mother refers is the Father’s tendency at social events to favour engaging with children rather than adults, and also certain comments made by the Father, one which sticks out in my mind being the Father’s alleged comment to the Mother that their niece had nice skin.

5. In the expert opinion of Dr D, psychiatrist, ‘…[the Father] does not have a “sex addiction disorder”.’[8] The expert evidence given by Dr D[9], Dr F[10] and Mr C[11] dismisses any view that the Father may become interested in children as a result of his interest in heterosexual pornography. I accept the evidence of the experts and also note that I accept that the Father’s comment in relation to changing nappies was a purely innocent statement from which nothing sinister can be drawn.

   [8] Page 18, Expert Report of Dr D, Psychiatrist, dated 6 December 2010.  I note in relation to the Report of Dr D that although it was prepared some two-and-a-half years before the date of trial, Dr D confirmed in his oral evidence that his view was unchanged.

   [9] Page 18, Expert Report of Dr D, Psychiatrist, dated 6 December 2010. 

   [10] Paragraph  7.7, Expert Report of Dr F, forensic psychologist, dated 6 February 2012. 

   [11] Paragraph 59, Family Report of Mr C, dated 24 August 2011.  

6. I find that the Mother’s perceptions of the Father’s interactions with the child, especially with regard to the incident, are filtered by her unwavering belief that the Father is sexually attracted to children. In support of this I draw upon the Mother’s comments to Mr C at paragraph 22 of the second Family Report dated 25 June 2012 where Mr C states that when ‘…[a]sked directly what she thought [the Father] was doing, she said initially, ‘I don’t know for sure’ but then that there was ‘something sexual’. The sexual connotation for her was implicit in her perception of [the Father] afterwards, stating that he withdrew his hand and ‘he looked at his hand and laughed’.’ I also draw upon Mr C’s conclusion at paragraph 59 of the first Family Report dated 24 August 2011 that:

   …In my view [the Mother’s] anxiety and distress borders on the histrionic. Her shock at his unfaithfulness with prostitutes has escalated to the point that she has projected her emotional reaction at her inability to process his behaviour into an unreasonable fear that [the Father] would sexually abuse the child. 

7. As regards the incident itself, in light of my findings above and in light of the Mother’s response or lack thereof at the time of the incident as well as her actions thereafter, I accept the Father’s evidence that he was merely supporting the child on the ramp; the alleged incident of sexual abuse did not occur. As stated by the Mother in her oral evidence at trial, she took no action at the time of the incident because ‘…she did not want to upset the child…’ or ‘…create a scene…’ As regards the Mother’s actions taken after the incident, though having gone to the police once before when alleging that the Father was a copycat offender of the “Bikeway Rapist”, the Mother took no action either at the park, or later following the event by either contacting the police, or the relevant department. Instead, the Mother chose to send a facsimile to her solicitor, informing the solicitor about the event. An affidavit was then filed some sixteen days later.  

8. I now turn to the issue of whether there is a risk of sexual abuse occurring in the future. It has been the Mother’s contention throughout these proceedings that the child will be placed at an unacceptable risk of harm if she is to have unsupervised contact with the Father. The Mother has based these allegations on the Father’s deceptive and manipulative character, his alleged sex addiction, his past conduct, specifically, the incident of 31 March 2012, and his sexual persuasions which, the Mother contends, reflect that the Father is sexually attracted to children and poses a high risk of abuse in light of his previous conduct.

9. In respect of the Father’s sex addiction and the assertions that his actions in viewing pornography would give rise to him being sexually attracted to children, I rely on my findings above. Specifically, I refer to the conclusions of Dr F, forensic psychologist, who prepared a report dated 6 February 2012 which focussed on the potential risk associated with contact between the Father and the child. At paragraphs 7.7 and 7.8 of this report Dr F states:

   …In regards to the association of illegal adult pornography and using prostitutes and sexual abuse of children or any general offending, there is no conclusive scientific evidence that these practices increase the risk of offending.

   …

   [The Father’s] psychological profile does not fit the typical characteristics of individuals who commit child sexual offences or for that matter any other type of offences.

   …

   [The Father] does not pose any risk of sexually or physically abusing his daughter or exposing her to situations that might be harmful.

10. Dr G, paediatric specialist, provided a medico-legal report dated 31 January 2012 on the Mother’s behalf in respect of the potential risks of harm to the child. As I noted in the course of the trial, Dr G’s report is hypothetical in nature, a view which Dr G herself accepted. In the course of her oral evidence, Dr G acknowledged that much of the material in the report bore little relevance to the case at hand in light of its hypothetical nature; further, she deferred to Dr F in respect of the risk posed to the child. I therefore attach little weight to this evidence and defer to the views of Dr F where directed.

11. In her evidence, the Mother has supported her view that the Father is manipulative and deceptive based on various instances that occurred during and after the marriage. In her oral evidence, the Mother stated that the Father was skilled in “acting appropriately” in front of expert witnesses so as to present well. In her affidavit filed 24 April 2012 the Mother also draws upon various theories about the Father, one being that he deliberately left the doors of their home unlocked while the parties went away for three days in order for the Mother to experience what it was like to be broken into. The Mother also referred to an instance that occurred while the parties were on a date prior to being married in which the Mother’s car was vandalised. According to the Mother, the parties were sitting by the river at Suburb H following dinner, and the Father stepped away to use the bathroom. Upon returning after approximately 15-20 minutes, the Mother describes the Father as having ‘…extreme difficulty in concealing his mirth.’ When the parties returned to the car park to leave, the Mother found her car to have been vandalised. The Mother is of the view that the Father did this. 

12. In the circumstances and on the evidence before me, I find, in accordance with the view of the expert witnesses, that there is no risk of abuse occurring in the future. Further there does not exist any unacceptable risk that the child would be exposed to sexual abuse if parenting orders were to be made for unsupervised time with the Father.

The benefit of the child having a meaningful relationship with both of the child’s parents

1. The Father submits that having a meaningful relationship with her Father would be to the child’s advantage in light of the expert evidence of Mr C and Mr I, senior family consultant, who have expressed their views that the child and the Father relate well to each other and enjoy their time together in an appropriate fashion. At paragraph 65 of the Father’s written submissions filed 3 April 2013, the Father, drawing upon the second Family Report dated 25 June 2012, emphasises Mr C’s concerns about the ‘…course that the Father’s relationship with the child was taking given the very small amount of time that he currently spends with the child and the nature of it, being supervised.’

2. Also by way of his written submissions, the Father supported Mr C’s views regarding the effect on the child’s development if she were not to have a relationship with her Father ‘…such that she would form an uneven balance of attachment between her parents and that her mother’s views regarding the father’s threat to her welfare, will be a confusing and troubling experience for her as she gets older.’ 

3. The Mother, at pages 2 and 3 of her written submissions filed 1 March 2013, submits that her proposal ‘…promotes a supervised time regime which will satisfy the s 60 CC(2) considerations in that the child will have the continued benefit of having a meaningful relationship with her Father whilst at the same time, satisfy the need to protect the child from any physical or psychological harm by being subjected to abuse in the Father’s care.’ 

4. The Mother also submits that ‘…[s]ince separation, supervised time has been the only time the child has spent with her Father. There is no expert evidence that indicates that the father/child relationship to date, has not been meaningful.’

5. I do not accept the Mother’s submission that the limited supervised time which she proposes will allow the child the continued benefit of having a meaningful relationship with the Father. It is clear on the expert evidence before me that the child will greatly benefit from having a relationship with the Father, and that to facilitate this, regular contact, beyond the scope of what the Mother is proposing, is necessary.

6. The expert evidence of Mr I, senior family consultant, assists in my determination. In Mr I’s Specific Issues Report dated 27 April 2012[12], he notes the Father’s ability to appropriately interact with the child, stating at paragraph 8:

   … the father demonstrated a reasonably good ability to ‘track’ the child in her play and interactions and he perceived and responded, adequately, to her cues. He attended well to her requests. He was observed to check with the child if she was thirsty or hungry. I observed the father to be very patient with the child and he appeared to have a good appreciation for things such as her developing co-ordination and ability to do certain tasks as limited by her development. Overall, I observed nothing inappropriate or concerning about the father’s style of relating to the child.

   [12] This report was ordered by Registrar Stoneham on 20 April 2012, pursuant to section 62 of the Family Law Act 1975 (Cth).

1. In light of the above, I find that the child will greatly benefit from having a meaningful relationship with the Father. 

Secondary considerations

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other parent.

1. A central issue to the determination of these proceedings is whether or not there should be contact between the Father and child in light of the Mother’s fears that the Father will sexually abuse the child, in light of his past sexual history and conduct. This issue falls within the ambit of the doctrine of Russell & Close (Fam C of A, SA42 of 1992, 25 June 1993: an unreported judgment frequently referred to by the Court).

2. The doctrine in Russell & Close was set out and affirmed in the decision of the Full Court, comprising Fogarty, Kay and Brown JJ in In the Marriage of A (1998) 22 Fam LR 756.

3. As their Honours set out in In the Marriage of A, the doctrine requires two separate inquires. First, the Court must determine, based on an objective standard, whether there is unacceptable risk. If the Court finds this to be so, then it must take steps which are proportionate to the degree of risk. However if the Court makes no finding of unacceptable risk, the Court may also, depending on the circumstances of the case, need to engage in the second inquiry. The Court’s second inquiry is a consideration of whether the resident parent has a ‘genuinely held belief that such risk exists’ and if that is so, whether that genuinely held belief ‘…will have a significant impact on that parent’s capacity as the resident parent and so impinge on the best interests of the children.’ However, though this belief is to be determined as a subjective test, it must nonetheless be genuine. That is, ‘…[w]here it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.’[13] 

   [13] Russell & Close (Fam C of A, SA45 of 1992, 25 June 1993) at [33].

Unacceptable risk 

1. I refer to my findings above that there is no unacceptable risk to the child. In light of the circumstances of the case, I find that it is necessary to embark upon the “second inquiry” as outlined above at paragraph 55.

The Mother’s belief

1. On the evidence before me, I find that the Mother, based on a purely subjective standard of proof, is of the (unwavering) view that there is an unacceptable risk to the child.

2. I find that this view has been held by the Mother since shortly after she found the pornographic magazines in the Father’s car, and formed the view that the Father was a deceitful, sexual deviant whom she could not trust and who was ‘…revengeful because of his sexual obsession, showing an interest in children in social settings’.[14] As at the date of the trial, the Mother continued to maintain the view that the Father is a sex addict and that she, consequently, is one of his victims whom he has “defiled”.[15]

   [14] Paragraph 23, Family Report of Mr C, dated 24 August 2011. 

   [15] Page 10, Transcript of 12 March 2013.

3. At paragraph 28 of the first Family Report of Mr C dated 24 August 2011, Mr C observed: 

   …Of the question as to how she might cope if unsupervised time did occur for the child with her father, [the Mother] reacted with alarm, exclaiming ‘I can’t possibly comprehend, my brain won’t let me and I don’t think I could cope’. She suspects she might suffer some form of breakdown.

4. On the material before it me, it is evident that the Mother is so fixed in her own views that she has been either unable or unwilling to consider views contrary to her own. Notwithstanding the views of Dr D that the Father did not have a sexual addiction, as set out in her affidavit filed 24 April 2012, the Mother ‘…set out to inform [herself] about sexual addiction.’ The Mother then both referred to passages she sought to emphasise and annexed copies of chapters of books to which she referred. The Mother then went on to analyse the Father’s behaviour in light of this material.

5. The Mother was adamant in her oral evidence at trial and in her affidavit material filed that the Father did pose a risk to the child, in light of his conduct and comments. Where contrary evidence was put to her, the Mother explained that the Father would have been merely putting on a show and manipulating all of the experts into believing he posed no risk to the child and was appropriate in his interactions with her.

6. During the Mother’s oral evidence, counsel for the Mother presented to her an excerpt from the Specific Issues Report dated 27 April 2012 where Mr I, senior family consultant, stated:

   …I found the father to be a rather formal, somewhat aloof person –

   …

   Despite this, the father demonstrated a reasonably good ability to track the child in her play and interactions and he perceived and responded adequately to her cues. He attended well to her requests. He was observed to check with the child if she was thirsty or hungry.

   …

   I observed the father to be very patient with the child, to have a good appreciation for such things as her developing coordination and ability to do certain tasks as limited by her development. Overall, I observed nothing inappropriate or concerning about the father’s style of relating to the child…

   In response to this expert opinion, the Mother stated that such an opinion had not caused her to rethink her position in the respect of the Father, the reason being that the witness, Mr I is ‘… an expert witness, so – so the father would act appropriately for the time because that is what his skill is. Whereas I have observed him for years, he got observed for one or two hours with [Mr I].’[16] 

   [16] Page 66, Transcript of 12 March 2013.

7. The Mother also formed the view that the Father had a number of what she referred to as “sexual triggers”. She identified one of these triggers to his sexual addiction as being the painting of a fully clothed woman flanked on either shoulder by two nude cherubs which was in the parties’ bedroom bed.

8. The other of these triggers, as identified by the Mother, was the prospect of changing the child’s dirty nappies. In the Mother’s evidence at trial, she stated that during phone conversation with the Father in which he was informing her that he was going to ‘…rid himself of all of his pornography and take the locks off things, and dispose of things and clear disks…’ she asked him ‘how do you feel about changing the child’s nappy?’ It is the Mother’s evidence that he replied, in a “timid and shameful voice”, ‘I would rather not.’ When asked what was wrong with such a response in the context of changing a dirty nappy, the Mother went on to explain, ‘…I see that as a trigger for him, like changing the child’s nappy was a sexual trigger for my ex-husband, because he has actually said to me once his family doesn’t realise how easily triggered he is. There’s triggers everywhere…’ 

9. Though the Mother told Dr J that the Father had told her that he would rather not change the nappy “due to temptation”, when this was put to her in evidence at trial, the Mother stated that the Father did not say this and that it was her own inference. 

The genuineness of the Mother’s belief  

1. The final matter to consider in the application of the doctrine of Russell & Close is ‘…[w]here it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.’[17] On the evidence before me, I find that though the Mother does hold a subjective belief that the Father poses an unacceptable risk to the child, that belief is “entirely irrational and baseless” and as such, I do not consider the belief to be genuinely held. Further, on this point, I note my concerns that the Mother’s belief will not waver and I emphasise the conclusions at paragraph 54 Mr C’s second Family Report dated 25 June 2012 in which he states ‘…[a] finding by the Court that there is no basis for [the Mother’s views will naturally have no effect on her holding those views. Her concern that [the child] is at risk in her father’s care is deeply entrenched and connected to how she has internalized the trauma that she experienced at the end of the marriage.’

   [17] Russell & Close (Fam C of A, SA45 of 1992, 25 June 1993) at [33].

2. The Mother attributes much of the risk which the Father poses to the child to the Father’s alleged sex addiction and his sexual interest in children. Neither of these reasons are substantiated by the wealth of expert evidence before me, despite the Mother’s comments to Mr C detailed at paragraph 23 of Mr C’s first Family Report where the Mother stated that she could not cope with the concept of the Father having unsupervised time with the child ‘…cause he is so deceitful and I don’t trust him and so revengeful because of his sexual obsession, showing an interest in children in social settings.’

3. At paragraph 59 of the first Family Report dated 24 August 2011, he states that ‘[a]lthough [the Mother] draws a connection between [the Father’s] behaviour and paedophilia, such a connection cannot be made.’

4. At page 18 of Dr D’s expert psychiatric report, he states ‘[the Father] does not have a sex addiction disorder.’ The Wife, however, as she stated in her evidence at trial, is unable to accept the expert evidence of Dr D.[18]

   [18] Page 87, Transcript of 12 March 2013.

5. In light to the evidence above, the orders set out at the commencement of my reasons are proportionate to my findings. I am of the view that contact should occur. In support of this view I draw upon the Family Report of Mr C where he notes the value in the child having a relationship with the Father. I also support my view by drawing upon the Mother’s evidence that she did allow contact between the Father and the child, albeit supervised.

Other relevant secondary considerations

1. As regards the rest of the secondary considerations, I shall not deal with each of these seriatim as I note that many of these have been and will be subsumed by my findings within these reasons.

2. It is clear on the evidence before me that the child has a strong, primary attachment to her mother which is to be expected in the circumstances. It is also to be expected that, in light of the present living arrangements, the child has a good relationship with the maternal grandparents. I find on the evidence before me the child enjoys a good relationship with the Father and that, as it was put in the Father’s written submissions, ‘…the Father has participated in [the child’s] life to the extent possible given the Mother’s requirement for supervised time.’ The child also has a relationship with the paternal grandparents though it is accepted that there have been periods where they have had little to do with the child. In more recent times, the paternal grandmother assisted in the supervision of the Father’s time with the child.

3. Though I am of the view that it is more likely than not that the Mother will facilitate time ordered between the Father and the child, I find that the Mother’s unwavering views about the Father’s sex addiction and how that may be linked to paedophilia, coupled with her views about the risk that the Father poses to the child have severely affected the Mother’s willingness to encourage a close and continuing relationship between the child and the Father. In support of this I draw upon the second Family Report of Mr C at paragraph 55 of which Mr C states:

   …[the Mother] will facilitate [the Father’s] time with [the child] according to any Orders which are made, but … her emotional support for [the child’s] bond is compromised by her underlying perception that the closer the bond that [the child] has with her father, the more the likelihood that he will abuse her. Therefore, she would seek to immunise [the child] from a closer bond with her father by discouraging their attachment and educating [the child] on how to keep her father at a distance.

4. Such a view is supported by the Mother’s insistence for the child to have supervised contact with the child, even before the alleged incident arose. The Mother’s decision for the Father’s time with the child to be supervised is a product of her overreaction which arose when she discovered that the Father had used prostitutes and viewed pornographic material, placed against the background of her “naïve” nature, as she accepted in her oral evidence. When looking to the future, I am greatly concerned about the impact that views of the Mother, being the primary parent, will have on the child’s relationship with the Father should it be the case that the Mother retains those views.

5. As regards the Father, on the balance of the evidence before me, his actions in allowing the child to live with the Mother and seeing the child as arranged, even prior to the intervention of this court, has displayed a willingness to allow such a relationship between the child and the Mother.

6. As regards the capacity to provide for the needs of the child, including emotional and intellectual needs, the evidence before me raises questions about the Mother’s capacity to provide for the emotional needs of the child. In support of this I refer to page 17 of the expert psychiatric report of Dr D who observed that ‘…[the Mother] has been in an enmeshed relationship with her family of origin that she is in the process of re-enacting  that with her only child.’ Similarly, in light of the above, concerns on this point arise in respect of the maternal grandparents, with whom the Mother and child live. In respect of the Father, despite the Mother’s contestations to the contrary, the Father has displayed the requisite capacity as documented by the expert evidence of Mr I referred to above. There is limited evidence before me as regards the capacity of the paternal grandparents; however, I do note that there is nothing before me to suggest they would be anything other than capable of providing for the said needs of the child.

7. In the circumstances of the case before me, great weight must be attached to the question of whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

8. It is the Mother’s proposal that final orders be made for the Father to have two hours of supervised contact with the child until the child reaches the age of 18. As set out at paragraph 143 of his written submissions filed 3 April 2013, the Father submits that such a proposal is ‘…unsupported by the evidence and absolutely detrimental to [the child’s] relationship with her Father nad [sic] her overall development.’ Accordingly, the Father seeks final orders that he have unsupervised graduating time with the child leading up to overnight contact each alternate week from Friday to Tuesday, and overnight contact from Wednesday to Friday in the “off-week.”

9. Before me is a situation in respect of which it simply cannot be said that making final orders at this stage would be in the best interests of the child. In support of such a finding I rely on the Full Court’s decision in Archbold and Archbold (1984) 9 Fam LR 798 in which, in respect of this secondary consideration, Evatt CJ and Fogarty J stated at 807:

   …finality cannot always be achieved and should not be a decisive consideration where the risk factors outweigh the benefits to the parties and the children of a final decision.

10. In the present case, in circumstances where the Mother has deep reservations about the Father spending unsupervised time with the child despite a wealth of expert evidence which points to the contrary, and where the Father has not had the opportunity to spend quality time unsupervised with the child to allay the Mother’s fears, unfounded as they are, and in light of the Mother’s reactions which have bordered on the ‘histrionic’, the making of final orders would not be in the child’s best interests.

Parental Responsibility and Parenting Orders

1. In light of the findings above, it is necessary to reserve the determination of parental responsibility until such time as the matter comes back before me, with the benefit of an updated family report.  

2. On balance, it is not in the best interests of the child for her to be removed from the primary care of her Mother in the interim. It is however necessary for the Father to immediately begin to spend quality time with the child on a basis that graduates from being supervised by the paternal grandmother (should she be so willing), to time in the presence of the paternal grandmother, and finally, to unsupervised daytime contact. I note that by “in the presence of” I mean that the paternal grandmother need merely be present and within earshot of the Father and child should there be any necessity for the child to seek out her assistance.

3. I am confident that the making of such orders is necessary for the Mother to understand that the Father poses no risk to the child, and will hopefully instil the Mother with some trust in the Father that shall gradually build over time. In circumstances where all of the expert evidence before me indicates that the Father is appropriate with the child and presents as a responsible and able parent, and in light of my finding that the Father poses no risk to the child, it is necessary to the child’s development that she enjoy a meaningful relationship with her Father. The question of exactly how final parenting orders will facilitate such a relationship must be guided by the result of the interim orders made herein, and an updated family report.

4. On a final note, before this matter returns to me, I support the recommendations of Mr C that both parents should undertake ‘…intensive counselling (separately) in an attempt to focus on [the child’s] best interests and to develop at least some modicum of communication between them.’ I strongly encourage the parties to do so, if not for anything else, the sake of their child.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 7 August 2013.

Associate: 

Date:  7 August 2013