O'Keefe and Pascoe

[2019] FamCA 397

FAMILY COURT OF AUSTRALIA

O'KEEFE & PASCOE [2019] FamCA 397

FAMILY LAW – CHILDREN – Parenting – suspension of final orders – risk posed by partner of a parent – orders excluding contact with partner of parent.

Family Law Act 1975 (Cth) s 60CC

Jones v Dunkel (1959) 101 CLR 298
M & M (1988) 166 CLR 69

APPLICANT: Mr O'Keefe

RESPONDENT: Ms Pascoe

INDEPENDENT CHILDREN’S LAWYER: Mrs J Lloyd

FILE NUMBER: CAC 790 of 2015

DATE DELIVERED: 5 June 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 5 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Stagg

SOLICITOR FOR THE APPLICANT: Campbell & Co

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

Orders

1. Order 4 of the orders made on 21 May 2018 is suspended, until further order.

2. D shall spend time with the Mother each alternate Saturday between 10am and 4pm commencing this coming Saturday.

3. The Mother is restrained by injunction from bringing D into contact with, or allowing her to be in the presence of, Mr Pascoe, until further order.

4. The Father is directed to file an Initiating Application within 14 days of today's date. 

5. The proceedings are adjourned for further directions to 10am on 9 July 2019.

6. It is requested that arrangements be made for an Auslan interpreter to be available on that date, and if none can be secured then the parties are placed on notice that the date may be amended.

7. The objection to the subpoena produced by the New South Wales police is overruled.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 790 of 2015

Mr O'Keefe

Applicant

And

Ms Pascoe

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The context of this matter is that there was a final hearing and determination in May 2018.  That final hearing included conclusions that the Mother's husband Mr Pascoe, also known as X, had been violent to the Mother and their daughter B.  This included violence spanning a period of 2011 to 2015 against the Mother.  Steps had been taken to reduce that risk which were sufficient to allow D to have unsupervised time with the Mother and Mr Pascoe following the final hearing.

2. One of the aspects that meant that there was a reduction in that risk was that D would be living primarily with her Father.  This would have the consequences that she would be spending less time in the Mother's household, but also that there would be greater scrutiny available by means of her contact with her Father.  It is in that context that the Father now seeks a suspension of the orders for D to spend time with her Mother, pending either an assessment of D or the imposition of a supervision requirement, on the basis that he says that events have occurred which indicate that Mr Pascoe poses an unacceptable risk to D. 

3. The Father also seeks that there be an order for drug testing of the Mother.  That matter may be disposed of summarily.  There is no evidence presented by him to justify such a course of action. 

4. Another observation that may be made early in this determination is that while the Father seeks an order for supervision of the Mother, the reality is that he does not assert that the Mother poses any sort of risk whatsoever to D.  Rather, he asserts that the risk flows from exposure to Mr Pascoe.  On that basis a requirement for supervision of the Mother is not justified. 

5. The question in these proceedings which have been brought about by a Contravention Application made by the Mother, brought about in consequence of the Father no longer providing D to spend time with her, is whether Mr Pascoe presents a risk of a magnitude that makes it necessary to make arrangements such that he will not be in contact with D. 

6. Both the Independent Children’s Lawyer (the ICL) and the Mother submit that there is no risk of such a magnitude demonstrated. 

7. It should be observed that there is ambiguity in much of what is alleged by the Father.  There is a question of whether what is alleged by him has in fact occurred, and there is ambiguity as to its meaning, if in fact it did occur.  These matters are important for consideration of whether or not there is an unacceptable risk. 

8. While a number of matters have been identified, the key allegations made by the Father are as follows:

   a)D has made three statements between August 2018 and January 2019 saying that X had touched her bottom;

   b)On 18 November 2018 D returned to the Father's care from the Mother's care with sore genitals.  The Father says he attempted to apply cream and was told by D “don't put it in there" and then "X touches me in there"; 

   c)The third matter was a complaint made by D that X came into her room and touched her bottom;

   d)Fourthly, on 25 December 2018, when D returned from having time with the Mother and X, she asked the Father if the Mother could hide under her bed to stop X punching her (that is the Mother) and she said “he makes mum cry." 

9. None of this evidence has been tested in these interim proceedings.  Some is ambiguous.  The touching of the bottom may be completely innocent.  The attempts to apply cream may also be completely innocent.  However, the allegations occur in a context of ambiguity where none of that ambiguity is answered by calling evidence from Mr Pascoe. 

10. No explanation is made as to why he is not called to give any evidence in the proceedings. 

11. The principles identified in Jones & Dunkel[1] indicate that an adverse conclusion may be more safely drawn in such circumstances.  The question might be reasonably asked as to why Mr Pascoe would be putting cream either on or in the genitals of the four-year-old D who is spending limited time in the Mother's household.  There is no explanation offered in relation to that.

    [1]Jones v Dunkel (1959) 101 CLR 298

12. While there is criticism made of the Father that he did not act immediately to suspend time following that assertion by D, and that this perhaps speaks of some ulterior motive, it may be observed that there was one circumstance added on another and added on another until Christmas Day was reached and D made the comments about X punching her Mother. 

13. There is some uncertainty on the Father's part as to what the meaning is even in relation to the cream and the genitals incident.  That is a reasonable question to be entertained by him.  It should be remembered that any of these matters could be amenable to innocent explanation.

14. Section 60CC of the Family Law Act 1975 (Cth) gives primacy to the need to protect a child from abuse or exposure to family violence. It does so appropriately as such are highly destructive to children. A determination of risk in this instance, particularly in interim proceedings does not require a positive finding as to the incidents occurring or as to their meaning. What is required is the overarching consideration identified in the High Court case of M & M[2].  That is a consideration of risk and whether such risk is unacceptable. 

    [2]M & M (1988) 166 CLR 69

15. If there is a sexual risk posed to D by Mr Pascoe and the evidence points to that as one available conclusion, then that risk is unacceptable.  Even at a low likelihood it is a risk of something so grave as to render it completely contra to D's interests. 

16. If there is a risk of exposure to further family violence beyond what was identified in the final hearing, and the evidence points directly to such, that is unacceptable in the context of the exposure at the final hearing. 

17. Despite the ICL’s position that there should be a dismissal of the Application made by the Father, the risk is sufficient as to suspend the current arrangements.  At the same time a complete suspension of the time that D might spend with her Mother and her siblings is a severe consequence.  The loss or diminution of those relationships holds important consequences for D.

18. Orders will be made to allow for D to spend time with both the Mother and her siblings provided that she is not brought into contact with Mr Pascoe.  Two qualifications will be made upon her time and the first will be to limit it to each Saturday between 10am and 4pm with hand over to be as agreed between the parties, and to being subject to the Mother being restrained by injunction from allowing D to be in contact with Mr Pascoe. 

19. As noted in the previous final judgment in terms of the mechanics of how these might take place, or their duration or their frequency, if the parties agree to a different regime then such a regime may be put in place.  The proceedings will also be adjourned for further directions and the direction will made requiring the Father, if he wishes to pursue the current objectives of his interim application, to commence via an Initiating Application. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 June 2019.

Associate: 

Date:  26 June 2019