Nally & Hadlock & Anor

[2020] FCCA 1814

FEDERAL CIRCUIT COURT OF AUSTRALIA

NALLY & HADLOCK & ANOR [2020] FCCA 1814

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 9 & 5 – time spending arrangements – children living with applicant paternal grandmother due to involvement of DCP – children previously lived with the second respondent father – first respondent mother lives in Queensland – father charged with indecent assault on older sibling of children – another older sibling has previously made similar allegations – father on bail in respect of charge – father seeks to spend time with subject children subject to supervision of paternal grandmother – mother opposes time – assessment of risk – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC

Cases cited:

Dieter & Dieter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

Mazorski v Albright (2007) 37 FamLR 518

Slater & Light [2013] FamCAFC 4

Applicant: MS NALLY

First Respondent: MR HADLOCK

Second Respondent: MR YANOS

File Number: ADC 5362 of 2019

Judgment of: Judge Brown

Hearing date: 18 June 2020

Date of Last Submission: 18 June 2020

Delivered at: Adelaide

Delivered on: 6 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Horvat

Solicitors for the Applicant: Johnston Withers

Counsel for the First Respondent: Mr McQuade

Solicitors for the First Respondent: Harry Alevizos

Counsel for the Second Respondent: Ms Collis

Solicitors for the Second Respondent: Pascale Legal

Independent Children's Lawyer: Ms Olsson

Solicitors for the Independent Children's Lawyer: Silkwoods

ORDERS

1. The Respondent father spend time with the children X born in 2012 and Y born in 2014 each Saturday from 4:00pm to 7:00pm supervised by the Applicant paternal grandmother with such time to take place at the Applicant paternal grandmother’s residence PROVIDED THAT the Respondent father’s bail conditions as varied from time to time do not preclude him from coming into contact with the children.

2. That the parties are restrained and injunctions are granted restraining each of them from:

   (a)Discussing these proceedings with the children and permitting anyone else to do so;

   (b)Denigrating all other parties or their family members to or in the presence or within the hearing of the children;

   (c)Discussing the children’s living arrangements with the children and from allowing anyone else to do so.

3. Further consideration of the matter is adjourned to 12 August 2020 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym is Nally & Hadlock & Anor approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5362 of 2019

MS NALLY

Applicant

And

MS HADLOCK

First Respondent

And

MR YANOS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with the assessment of risk of two children aged seven and five respectively, being subject to sexual abuse and what is a proportionate response to that risk.

2. The assessment must take place at an interim hearing stage, which necessarily precludes an exhaustive hearing, involving cross-examination leading to some form of conclusive evidentiary fact finding. 

3. It also arises at a relatively early stage of proceedings prior to any expert assessment of the family having been undertaken in the form of a family report.  In addition, the allegations giving rise to the issue of sexual abuse are highly controversial, with SAPOL[1] and DCP [2] taking different and contradictory approaches to the matters raised with them.

   [1]  South Australian Police

   [2]  The Department of Child Protection – the statutory authority for South Australia responsible for child protection in the state.

4. The children concerned are X born in 2012 and Y born in 2014.  Also relevant to the proceedings, although not directly subject to any specific application, are X and Y’s older siblings – B born in 2004; C born in 2008; and D born in 2006. 

5. The applicant in the proceedings is the children’s paternal grandmother, Ms Nally.  She lives in suburban Adelaide with X and Y, who were placed in her care by DCP pursuant to a safety plan in mid-November of 2019.

6. The first respondent is the children’s mother, Ms Hadlock.  Currently, she lives in Queensland with C, who has significant special needs.  She moved to Queensland in April 2018.  C has been living, in Queensland, with his mother, since May of 2019.  He was not subject to any investigation by DCP in the previous November.

7. The second respondent is the children’s father, Mr Yanos.  Currently, he lives in the Region E of Adelaide.  He was the subject of a notification of sexual abuse, which was investigated by both SAPOL and DCP.  He and Ms Hadlock separated in May 2016, when the family was living in City F. 

8. It is Ms Hadlock’s case that her relationship with Mr Yanos was marked by significant family violence, which precipitated a mental breakdown in her.  The separation rendered her homeless and in these circumstances, she was left with no alternative other than to surrender the care of the four younger children to the father, on a temporary basis.  However he refused to return them to her care when she requested them.  B remained with her mother. 

9. On the other hand, the father denies that he was ever violent towards the mother.  It is his position that she has suffered mental health issues and voluntarily surrendered the children’s care to him, primarily because she wished to pursue a relationship with another person.  This significant controversy cannot be resolved in the current proceedings, which are likely to have a significant course yet to run, as ultimately the mother seeks that all the children live with her in Queensland, on a final basis.

10. Between August 2017 and November 2019, Mr Yanos was the primary carer of D, X and Y and of C, until C moved to Queensland, due to his violent behaviour towards his sisters.  B has lived with each of her parents in this period, as well as with friends and other relatives, in various locations in South Australia. 

11. It is the father’s position that B is a disturbed child, who has engaged in risky behaviours with her contemporaries, particularly a person referred to as G.  He found her conduct difficult to manage.  D has been living with her maternal grandparents, in City F, since mid-November 2019, since the involvement of DCP with the family. 

12. Mr Yanos asserts that, in 2018, B made allegations to police that he had touched her inappropriately, which he denies.  He was interviewed by officers from SAPOL but no charges were laid against him.  It is the father’s position that B made the allegations, which she did, because she resented her father interfering in her relationship with G, particularly his opposition to B living with G in Town H.

13. On 16 December 2019, DCP removed D, X and Y from the father’s care, after he was charged, by SAPOL with resisting arrest and the attempted indecent assault of D.  I have not been provided with any details regarding the specific allegations made by D herself or how they relate, if at all, to the allegations made by B.

14. In an affidavit filed by him on 20 May 2020, the father details what happened, from his perspective, following the charges brought by police:

    “I understand that D asked to be placed in the house where B was living with G, however DCP did not do so because they did not deem it to be appropriate.  D was then placed in the care of the maternal grandparents who live in City F.

    At my request, X and Y were placed in the care of the paternal grandmother. DCP arranged a Family Safety Plan for X and Y to that effect.  The Safety Plan included that I have no contact with Y and X until DCP had conducted their investigations and notify me otherwise.

    DCP investigated the concerns raised against me relating to allegations of sexual harm to a child.  These concerns were not substantiated, and the child protection case against me has since been closed”[3]

    [3]  See father’s affidavit filed 20 May 2020 at [40] – [42]

15. Mr Yanos has provided a letter from DCP dated 14 January 2020, which is addressed to him.  The following paragraph of this letter is relevant:

    “Concerns were raised concerning sexual acts or exploitation, risks of sexual harm and dangerous behaviour regarding a child.  These concerns were not substantiated following the child protection investigation.”[4]

    [4]  Ibid at [Exhibit Y-2]

16. The father further deposes that he appeared before the Suburb J Magistrates Court, on 3 April 2020, on which occasion he pleaded guilty to a charge of resisting arrest and was placed on a three month good behaviour bond.  He is contesting the SAPOL charge involving D and this charge has been subsequently adjourned on a number of occasions.  He has had no further involvement with DCP since January 2020.

17. I have not been provided with any details regarding the matter to which Mr Yanos pleaded guilty, particularly whether any of the children were exposed to any species of family violence.  It is a further aspect of the case which remains opaque.

18. It is Mr Yanos’ position that D has fabricated the allegations against him, as a consequence of a misconceived sense of resentment she holds against him, because he declined to buy her an iPhone and later directed her to clean her room, which led to an argument between the two. 

19. In all these circumstances, he is hopeful that the charges against him will ultimately be withdrawn, as they have no proper basis.  He last appeared before the Magistrates’ Court on 16 June 2020, on which occasion the proceedings were again adjourned to enable the police to obtain further witness statements from D, G and another person. 

20. Mr Yanos is currently on bail, the conditions of which include that he is not to approach D, directly or indirectly or significantly be in the company of any child, under the age of 18 years, unless that child is accompanied by their legal guardian.  It is accepted, apparently, by all parties concerned, that currently Ms Nally is to be regarded as X and Y’s legal guardian.

21. The case first came into this court on 16 December 2019, immediately after Mr Yanos had been charged and the safety plan inaugurated in respect of X and Y.  The application was brought by the paternal grandmother, who sought to formalise her position in respect of the two children concerned.  The safety plan having no status as an order of any court.

22. At the time, neither Ms Hadlock nor Mr Yanos had had the opportunity of filing answering material.  In these circumstances, an order was made, with the consent of all concerned, that X and Y should continue to live with the paternal grandmother, as had been inaugurated by DCP.

23. At the time, Ms Hadlock had travelled to South Australia from Queensland for a holiday.  As a consequence, it was also agreed that she should spend regular periods of time, with the children, whilst she was in South Australia.  Initially the time was restricted to day light hours only.

24. A further order was made restraining both the paternal grandmother and the mother from bringing the children into contact with their father, whilst the DCP and SAPOL investigations were on foot.  The parties were also referred to a child dispute resolution conference which was convened for 31 March 2020. 

25. Mr Yanos has not spent any time whatsoever with X and Y since mid-November 2019.  Given the outcome of the DCP investigation and the protracted nature of the SAPOL investigation, which he would categorise as being lacking in probative evidence, he now wishes to bring an application to spend time with the two children. 

26. However, given the nature of the charges against him and his bail conditions, he concedes that any such time should be brief and subject to some form of supervision.  Accordingly, at present, he proposes that he spend time with the children each week, on Saturday, for the purpose of a catch up dinner with the time to be supervised by the paternal grandmother.

27. Ms Nally has not as yet filed any formal documentation including her agreement to be such a supervisor and what she understands would be her responsibilities as such.  However, her legal representative has provided that assent and further indicated that her client will file an affidavit, in due course, indicating what she understands will be her responsibilities as a supervisor.

28. The mother opposes that there be any time whatsoever between the two younger children and their father until the outcome of the police proceedings is known to the court.  It is the submission of her counsel, Mr McQuade that it would be improper for the court to countenance any such engagement, between the father and the children, whilst the charges remain current and there is a risk that such interaction may prejudice the prosecution because it may lead to D (and possibly B) being indirectly subject to some form of pressure or coercion via the two younger children.

29. In short, the mother is concerned that the proposed interaction between the children and their father will potentially cause the children some significant emotional distress and this in turn will flow on to both D and perhaps B and may possibly influence their willingness to give evidence in the Magistrates’ Court proceedings against their father. 

30. Mr McQuade submits that it would not be in any of the children’s best interests that the proper prosecution of Mr Yanos be prejudiced by the possibility that not all relevant evidence is able to be produced.  In addition, the mother asserts that it just would not look right, if a person who is charged with sexual assault is spending time with children of the tender ages of X and Y, notwithstanding the existence of some form of supervision. 

31. The paternal grandmother, mother and father are not the only parties to these proceedings.  On 8 April 2020, as a consequence of the serious police charges against Mr Yanos, an order was made that X and Y be independently represented in these proceedings.

32. For reasons beyond the control of both the court and the parties, this representation has not been without its mishaps.  The independent children’s lawyer originally appointed was compelled to withdraw due to a conflict of interest.  As a consequence, a fresh independent children’s lawyer had to be appointed.  She is Ms Jenny Olsson, an experienced family lawyer, particularly in child protection matters. 

33. In addition, on 16 December 2019, an order was made pursuant to the provisions of section 69ZW of the Family Law Act 1975[5] requiring both SAPOL and DCP to provide to the court details of all notifications of child abuse received in respect of X and Y.

    [5]  Hereinafter referred to as “the Act”

34. Pursuant to the provisions of section 68LA of the Act, Ms Olsson is under a statutory duty to analyse all relevant evidence and material before the court and advocate the position, which she considers will best advance the interests of the children, whom she represents. As such, Ms Olsson is to be regarded as a party of equal importance to the parents and the maternal grandmother in the case.

35. Notwithstanding her recent appointment, Ms Olsson has been able to review the necessary documents.  She supports the position put forward by the father and paternal grandmother.  Her position can be summarised as follows:

    ·The chance of any interaction between Mr Yanos and the two younger children having some form of emotional impact on either B or D must be considered remote, given the two groups of siblings live in widely dispersed households;

    ·Neither X nor Y are the subject or victims of any direct allegations of abuse;

    ·There is no evidence to indicate that the paternal grandmother would take a cavalier approach to the care and safety of X and Y or would expose them to any prospect of coming to harm;

    ·There is nothing in the evidence to suggest that the paternal grandmother would not be protective of the children;

    ·The evidence indicates that the father had a high degree of involvement in providing care for X and Y and, as such, is to be regarded as the children’s primary carer up until November 2019;

    ·In these circumstances, Ms Olsson is concerned that the two younger children have not interacted with their previous primary carer for an extended period of time;

    ·In these circumstances, Ms Olsson believes that the benefits of the children touching base with their father and being reassured that he is okay are greater than any protective issues, which she regards as being less serious at this stage;

    ·The time proposed, on any view, is brief.

36. This is a complicated matter, which involves potential relocation issues.  The paternal grandmother has not sought any parenting orders on a final basis.  By necessary implication, she supports the children returning to the care of their father, once the SAPOL proceeding are concluded with the exculpation of Mr Yanos. 

37. In her response, filed 20 March 2020, the mother seeks final orders that X, Y, D and C all live with her in Queensland.  The father’s position, on a final basis, is that X and Y live with him.  His application is silent in respect of the other children.

38. In this context, orders were made for the mother to spend time with the children in the forthcoming mid-year school holidays and have regular face time and telephone contact with their mother.  Ms Hadlock had planned to come to South Australia in April but her plans were derailed by the Covid-19 pandemic emergency. 

39. The parents in this case, for self-apparent reasons, do not trust one another and do not communicate easily.  The circumstances surrounding the current proceedings have led to a further polarisation of the views.  In addition, the mother mistrusts the motivations of Ms Nally and views her as a proxy for the father’s interests.

40. This dichotomy of interests is further complicated by what are likely to be the ultimate issues required to be determined by the court – with which parent should these two young children live predominantly and will these living arrangements involve an aspect of relocation.  Relocation cases are notoriously difficult.  It is in this context that the parties are jockeying for advantage.

41. In these extremely difficult circumstances, my lodestone must be the best interests of X and Y. It is for this reason that, at an early stage, I referred the parties to a child dispute conference pursuant to the provisions of section 11F of the Act.

42. The family consultant, who conducted the child dispute conference on 31 March 2020, Ms K reports as follows:

    “X and Y are at young ages where consistency, stability and predictability in their care arrangements is important.  They are also at a young age where focussing on the educational needs, with few other distractions, remains important.  It is also recognised that the children also require a safe and nurturing environment to ensure the successful ongoing development of their needs, and that maintaining sibling relationships is also important.[6]

    [6]  See Child Dispute Conference Memorandum to Court dated 31 March 2020 at [26]

43. Ms K also noted that the co-parenting relationship between Ms Hadlock, on the one hand and the father and paternal grandmother on the other, was extremely poor.  From her perspective, the case raised complex issues regarding the quality of care provided by each parent; the issues of sexual abuse; and a potential change in primary care giver, for the children, in the context of a relocation.  In these circumstances, Ms K recommended that a family report be prepared.

Legal principles applicable

The nature of an interim hearing

1. Interim hearings very often arise against a background of serious family crisis and controversy.  Obviously this is the situation in the present matter.  Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously and prior to any final hearing occurring. 

1. The need for such expedition dictates that the hearing concerned should be truncated.  As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination. 

2. Accordingly, the evidence available before the court at the interim stage is limited.  As a consequence, any orders made by the court, at this stage, are provisional in nature, pending a further and more detailed inquiry or series of inquiries.  The parties, in the present matter, need to bear in mind that I am not currently deciding arrangements for the care of any of the children on a final basis.

3. Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings.  In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any and what factors are influencing such views. 

4. The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed.  In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[7]

   [7]  See Goode & Goode (2006) FLC 93-286 at 80,901 [68]

5. Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned. 

6. In this case, there are few agreed facts but what can be gleaned from the case is as follows:

   ·Mr Yanos was X and Y’s primary carer for an extended period between at least 2017 and mid-November of 2019;

   ·Ms Nally has been assessed as a suitably protective custodian of the children by DCP;

   ·At the present time, Ms Hadlock lives interstate away from the children and has begun to re-engage with them during school holidays, whilst she continues to live in Queensland;

   ·B and D do not currently live with the paternal grandmother.

How the court determines a child’s best interests

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.  They are contained in Part VII of the Family Law Act 1975 (“the Act”).

2. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

5. There are two primary considerations, which are as follows:

   “a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”

6. Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:

   “(a)  an assault, including a sexual assault, of the child; or

   (b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)    serious neglect of the child.”

7. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.

8. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

9. As with many cases, the present matter requires the balancing of these two primary considerations.  The father emphasises the benefits the children are likely to accrue from resuming their currently interrupted relationship with him; the mother focusing on protective concerns.

10. Underpinning the father’s position is the contention that the mother has an ulterior motive for wanting to restrict his time with the children in order to advance her aim of securing their return to her care in Queensland.  He places significant weight on the fact that he has provided the vast majority of the care required for X and Y since the parties separated.

11. The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[8] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.

    [8]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

12. The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives.  As a verb, involve means to participate or share experience. 

13. Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.

14. The mother’s position is that the father represents a multi-faceted risk to the children as a consequence of what she would characterise as his abusive personality.  It is her case that she was subject to serious family violence from the father, during the parties’ relationship.  It is her case that the issues reported by first B and more recently D support her concerns and are axiomatically being taken seriously by SAPOL.

15. Ultimately, it may be impossible for this court to assess with any degree of certainty whether Mr Yanos has or has not sexually abused a child entrusted to his care.  Neither the outcome of the SAPOL prosecution or the DCP investigation can be determinative of this issue.

16. Rather the court must assess the degree of risk, arising for X and Y, of being abused or otherwise subject to some form of psychological harm as a consequence of interacting with their father and, once having assessed the potential and degree of such risk, put in place an appropriate order, which is proportionate to the risk so assessed.

17. At the same time, the court must be aware that it may not be in the best interests of a child to deprive that child of the benefits of having some form of relationship, with a person, particularly a parent, who has hitherto played a significant role in the life and care of that child on the basis of uncertain allegations and imprecise evidence.

18. The thought that any parent would sexually abuse a child in his/her care is abhorrent to consider and one’s natural inclination is to disbelieve such an allegation.  However, the truth is that children are subject to abuse by their parents, from time to time.

19. It is also true that an event can be misconstrued, misinterpreted or in some cases maliciously concocted.  As such, it is the responsibility of the court to examine allegations of sexual abuse, on a case by case basis, in an idiosyncratic manner.  The exercise cannot be deferred because of evidentiary difficulties.

20. The assessment of risk is one of the more, if not the most, difficult task confronting the court, particularly at the interim stage.  It goes to the fundamental safety of children.  However, if the risk is assessed inaccurately as being unduly extreme or a too cautious approach is adopted in respect of it, it may also have significant emotional consequences for a child, who is deprived of some form of a relationship with a much loved parent on a false premise.

21. In Dieter & Dieter[9], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [9]  See Dieter & Dieter [2011] FamCAFC 82

22. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

23. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “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.”[10]

    [10]  Slater & Light [2013] FamCAFC 4 at [37]

Conclusions

1. Up until the children were removed from his care, it would seem likely that Mr Yanos has been the most significant adult person with the care of X and Y.  He was their primary carer.  This is a significant consideration.  As a consequence of the actions of DCP, this long standing arrangement was up-turned and the children came into the care of their paternal grandmother.

2. This must have been an emotionally de-stabilising period in the lives of the children.  At this juncture, it is unclear to me how well they have adjusted to this significant change in circumstances.  In my view, it must be an important factor, relevant to the children’s best interests that they have not engaged with the father for a period now well in excess of six months.

3. The risk of the children being subject to any physical form of abuse, if the time concerned is subject to supervision and is closely confined in terms of time, is in my view, extremely remote in nature.  Certainly, in my view, it is not a risk which is unacceptable for the court to countenance.

4. It is also a significant consideration that DCP do not consider the allegations of sexual abuse, involving Mr Yanos, to be substantiated.  This attitude cannot be easily reconciled with the attitude of SAPOL.  I also note that, at the most recent mention of the prosecution case, the police apparently indicated that they were still in the process of gathering further statements.

5. The risk of potential emotional harm is more difficult to assess.  However, it is not suggested that Mr Yanos has hitherto behaved inappropriately towards the children or that X and Y do not love their father.  In these circumstances, in my view, there are deficits in the children not engaging whatsoever, with their father, for what may still be a lengthy period of time, whilst the criminal charge is resolved.

6. I do not consider that there is any significant risk that any involvement between the father and the younger children will entail the risk of any prejudice to the proper prosecution of Mr Yanos.  To some extent, I agree with Ms Hadlock’s view that it does not look right for a person who is charged with some form of sexual abuse of a child to be able to interact with other children, whilst the charge remains unresolved.

7. However, every case must be judged on its own individual circumstances.  It is not merely a matter of perception, rather it is a case of the objective assessment of risk and the fashioning of a proportionate response to the risk so assessed.  The fact of a charge alone does not preclude the court from considering the benefits which are likely to ensue to a child from maintaining at least some form of relationship with a relative who has hitherto been significant to them.

8. In this case, I am satisfied that the children are likely to derive some benefits from re-engaging with their father, who has previously been their primary carer, in closely confined circumstances.  In my assessment, the conditions proposed by the father and Ms Nally are proportionate to any risks which can be identified in the case.

9. Accordingly, I will make the orders proposed by the father and adjourn the case until later in the year, after the date currently set for the prosecution case in the Magistrates’ Court, although whether that case will have been resolved by that date is unclear to me.

10. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 6 July 2020