Otero & Colina
[2021] FedCFamC1F 215
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Otero & Colina [2021] FedCFamC1F 215
File number(s): DGC 2961 of 2015 Judgment of: HARTNETT J Date of judgment: 24 November 2021 Catchwords: FAMILY LAW – CHILDREN – MAGELLAN LIST – Where the child currently spends no time and has no communication with the father – Where the child is now aged nine years – Where the child lives with the mother and maternal grandparents – Where the parents separated, reconciled and separated again – Whether the father poses an unacceptable risk to the child – Where there are allegations made by the mother that the father sexually abused the child – Where the mother does not support a relationship between the father and the child – Where there is no unacceptable risk of harm or abuse for the child in the care of the father – Where the father consents to orders that he attend upon a psychologist for cognitive behavioural therapy and dialectical behaviour therapy – Orders made for the father to attend a psychologist.
FAMILY LAW – CHILDREN – Best interests – Whether the child should spend supervised time and/or communicate with the father – where the mother seeks that no orders are made for spend time – Where the father seeks supervised time at a contact service or private supervisor – Where the father also seeks orders that the child engage in therapeutic counselling prior to recommencing spend time with the father – Orders made for the child to attend therapeutic counselling for a period of three months prior to the child recommencing supervised time with the father for a period of eighteen months – Where the parties agree that the mother should have sole parental responsibility – Where the parties both seek that the child live with the mother – Orders made by consent for the mother to have sole parental responsibility and for the child to live with the mother.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth) s 39
Cases cited: Bell & Nahos [2016] FamCAFC 244
Betros & Betros [2017] FamCAFC 90
Blinko & Blinko [2015] FamCAC 146
Jurchenko & Foster (2014) FC 93-598
M & M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
Mulvany & Lane (2009) FLC 93-404
Olsen & Rigby [2020] FamCA 885
Russell & Close [1993] FamCA 62
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Place: Melbourne Number of paragraphs: 175 Date of hearing: 3-7 May 2021 Counsel for the Applicant: Ms Agresta Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: Ressan Lawyers Advocate for the Independent Children's Lawyer: Mr Taghdir Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
DGC 2961 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)BETWEEN: MS OTERO
Applicant
AND: MR COLINA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
24 NOVEMBER 2021
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child of the relationship, namely X born … 2012 (“the child”) and in exercising such responsibility advise the father by registered post of any decision made.
3.The child live with the mother.
AND THE COURT ORDERS THAT:
4.Subject to Order 5 herein, the child spend supervised time with the father for a period of eighteen (18) months:
(a)at dates and times, once monthly for a period of four (4) months and thereafter once each second week, or otherwise as can be facilitated by B Contact Service;
(b)if B Contact Service are unable to facilitate time spent with then at dates and times but not less than monthly for a four (4) month period and thereafter not less than each second week or otherwise as can be facilitated by Ms C or another private contact service as agreed between the mother and father or if no agreement can be reached then as determined by the Independent Children’s Lawyer; and
(c)the mother and father are to share equally in the costs of such supervised time.
5.Prior to time commencing as provided for in Order 4 herein the child have therapeutic counselling with a counsellor nominated by the Independent Children’s Lawyer, with any costs of same to be met by the father and with such counselling to prepare the child for time to recommence with the father. Such therapeutic counselling to commence within twenty-eight (28) days of this order and to not exceed three (3) months duration unless the father and mother consent to its continuance.
6.The mother and father forthwith do all acts and things and complete all documents to facilitate the child spending time with the father as specified in Order 4(a) hereof and thereafter if necessary the mother and father do all acts and things and complete all documents to facilitate the child spending time with the father as provided for in Order 4(b) hereof.
7.The father attend, at his own expense, upon a psychologist for Cognitive Behavioural Therapy (“CBT”) and Dialectical Behaviour Therapy (“DBT”) fortnightly or as otherwise directed by the psychologist, for a minimum of twelve (12) months. The father is to commence such attendance within sixty (60) days of the making of these orders and if not possible, within ninety (90) days, and the operation of Order 4 herein is not subject to this order.
AND THE COURT NOTES THAT:
A.This order is in accordance with paragraph seven (7) of the reasons for judgment supporting the making of these orders.
B.Each of the parents and their servants and agents shall be and are hereby restrained from discussing these proceedings with or in the presence or hearing of the child and from permitting any other person to do so.
AND THE COURT FURTHER ORDERS BY CONSENT THAT:
8.The mother do all acts and things necessary to keep the father forthwith informed, in writing by email or registered post of:
(a)any medical emergency or serious medical condition in relation to the child; and
(b)any change to the child’s current primary school; and
(c)any secondary school the child will be enrolled in.
9.The father shall be at liberty and is otherwise authorised pursuant to this Order to obtain from the child’s school, at his own expense, all notices, reports and school photographs.
AND THE COURT ORDERS FURTHER THAT:
10.All documents produced to the court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Federal Circuit and Family Court of Australia (Division 1), Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
11.There be liberty to the father to file an application for parenting orders including unsupervised time spent between the child and the father in the period commencing six (6) months prior to the expiration of Order 4 hereof.
12.The order appointing the ICL is discharged sixty (60) days from the date of these Orders.
13.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contraventions of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Colina & Otero has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
INTRODUCTION
Before the court were competing applications for parenting orders in respect of the child X, born in 2012 (“the child”). The child is now aged nine years. She is a student at D School, where she is in grade three. The child presently lives with her mother and the maternal grandparents and spends no time, either supervised or unsupervised, with her father. The child has no communication with her father.
The final hearing of the proceeding commenced on 3 May 2021 and continued until 7 May 2021. Each of the parties was represented by counsel as funded by Victoria Legal Aid. The interests of the child were represented by an Independent Children’s Lawyer (“the ICL”). The proceeding had earlier been allocated as a Magellan list matter.
The following issues were in dispute in the proceeding:
(a)the nature of the family violence perpetrated by the Respondent father (“the father”) on the Applicant mother (“the mother”);
(b)whether the father subjected the child to sexual abuse; and
(c)the question of whether the child should spend supervised or no time with the father and have any or no communication with the father.
The below orders were consented to by each of the parties to the proceeding. Those orders were that:
1.All previous orders be discharged;
2.The mother have sole parental responsibility for the child of the relationship, X, born on … 2012 (the child);
3.The child live with the mother;
4.The mother do all acts and things necessary to keep the father informed, in writing, by email or registered post, of:
a.any medical emergency or a serious medical condition in relation to the child;
b.any change to the child’s current primary school;
c.any secondary school the child will be enrolled in;
5.the father shall be at liberty and is otherwise authorised pursuant to this order to obtain from the child’s school, at his own expense, all notices, reports and school photographs.
It is the position of the mother that the child spend no time with the father. Further, the mother ultimately sought no order in respect of any communication had between the father and child.
The father sought an order that the child spend supervised time with the father:
(a)at dates and times as can be facilitated by B Contact Service; and
(b)if B Contact Service are unable to facilitate contact, then at dates and times as can be facilitated by Ms C or another private contact service each alternate weekend.
Additionally, the father indicated to the court, his consent to orders wherein he attend, at his own expense, upon a psychologist for Cognitive Behavioural Therapy (“CBT”) and Dialectical Behaviour Therapy (“DBT”) fortnightly for a minimum of 12 months as recommended by Ms E (“Ms E”), psychologist of F Psychology, who conducted, as a single expert, a psychosexual evaluation of the father on 23 July 2019, and thereafter prepared a report for the court, which is discussed further in these reasons.
The ICL joined with the mother in putting a position of no time spent with, nor communication had, between the child and her father.
The central issue raised in the proceeding was whether the child had been sexually abused by the father. The evidence before the court does not support a positive finding of the father having sexually abused the child. In the absence of that positive finding, I have considered whether there is an unacceptable risk of sexual abuse of the child as perpetrated by the father, and whether any such risk can be sufficiently ameliorated so as to enable the child to have a meaningful relationship with the father.
MATERIALS RELIED UPON
The mother and father provided case outline documents setting out the material each of them relied upon. The ICL outlined the material relied upon at the commencement of the trial. I have had regard to that material and the documents which were tendered as exhibits in the proceeding.
The following material was relied upon by the mother:
(a)Amended Initiating Application filed on 24 June 2019;
(b)affidavit of the mother sworn and filed on 24 June 2019;
(c)reply affidavit of the mother sworn and filed 5 August 2019; and
(d)affidavits of Ms G, mental health social worker, filed 6 August 2019 and 19 March 2021.
The following material was relied upon by the father:
(a)Response of the father filed 18 July 2018;
(b)affidavits of the father affirmed on 11 July 2019 filed 15 July 2019; and
(c)Single Expert Report of Ms E, psychologist, filed 2 October 2019 (Psychosexual evaluation of the father).
The following material was relied upon by the ICL or otherwise tendered in evidence by agreement between the parties:
(a)Section 11F Report by Ms H dated 4 February 2016;
(b)Family Report by Ms J, Family Consultant dated 28 July 2016;
(c)Magellan Family Reports by Ms K, Family Consultant, filed 30 August 2019 and addendum report filed 26 March 2021;
(d)Psychiatric Report of the father by Dr AA, psychiatrist, filed 4 July 2017;
(e)Specialist Assessment Report prepared by M Health Centre (“MHC”) with the author of the report being Ms L, counsellor, dated 7 January 2019;
(f)MHC at O Hospital redacted reports;
(g)Section 69ZW Department of Health and Human Services Report; and
(h)Psychiatric Reports of the father and mother by Dr P, forensic psychiatrist, filed 24 June 2019.
Statements of fact in these reasons are findings of fact on the balance of probabilities.[1]
[1] Evidence Act 1995 (Cth) s 140.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[2]
[2] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
BACKGROUND
The mother, born in 1985, is aged 36 years. The mother works part-time in hospitality. She is in receipt of Centrelink benefits. The mother has a diploma in business administration, which she obtained after the completion of year 10. Before becoming pregnant with the child, the mother worked in administration for a period of five years. The mother is undertaking some studies and otherwise is fully engaged in the primary care of the child. The mother has not re-partnered.
The father, born in 1970, is aged 51 years. The father is not currently employed and is in receipt of Centrelink benefits. He previously worked as a tradesperson. Between 1993 and 1998 the father worked for Q Company where he sustained an injury in a machinery accident which led to ongoing spinal issues. The father was diagnosed with a disability between 2002 and 2003 and is in receipt of a disability pension. He resides in rental accommodation. He has not re-partnered.
The father was previously married to Ms R. They had two children together born in 1995 and 1997. The parties separated in 1997, reconciling briefly before the father discovered that Ms R was having an affair with his best friend. The father decided to move away and he has not seen the children from this relationship since in or around 1999 or 2000.
The parties commenced their relationship on or about 7 November 2003. They met at S Company in Suburb T where they were both employees. The mother was 18 years and 8 months of age at the time and the father was 33 years of age. The mother claimed that this was her first relationship.
The parties’ cohabitation commenced in or about late 2003 or early 2004. The parties did not marry.
In 2012 the child was born. The parties first separated in December 2014 for a period of some two weeks. In this time police made an application for an Intervention Order (“IVO”) on behalf of the mother. The parties reconciled. The parties next separated on or about 19 May 2015 after a cohabitation period of approximately 11 and a half years. The mother and child, then aged 2 years and 7 months approximately, went to live with the maternal grandparents.
The father commenced proceedings in the then Federal Circuit Court of Australia (“FCC”) at Dandenong on 21 September 2015. The mother made allegations of family violence and raised the issue of the father’s parenting capacity. No allegations of sexual abuse by the father were made. Initially, pursuant to orders made in the FCC on 14 December 2015 and then subsequently on 4 February 2016, the child spent supervised time with the father from January to August 2016. Thereafter, the child’s time with the father became unsupervised and progressed to include overnight time for one night each week.
On 24 July 2017, after nearly two years in litigation, and with the family report of Ms J in evidence before the court, the contents of which proposed unsupervised time be spent between the child and the father, progressing to overnight time, final parenting orders were made by consent. Those orders provided for the child to live with the mother and spend substantial and significant time with the father including each alternate weekend from Friday to Sunday, and in the other week, from Friday to Saturday, together with time in school holidays and on special occasions.
Almost immediately following the making of the above orders, the parties commenced spending time together as a family, and in September 2017, the mother and father resumed their relationship. Whilst the parties did not reside in the same household after July 2017, they and the child spent considerable periods of time together in the households of each of them. The father spent most of his time with the child in the presence of the mother until May 2018.[3]
[3] Mother’s affidavit filed 24 June 2019, paragraph 18.
Around Mother’s Day in May 2018, the parties again separated. They have remained separated since that time.
From May 2018 until 16 June 2018, the child spent time with the father as follows: on one occasion for a few hours; on two other occasions for an overnight period of one night; and on a minimal number of occasions when the father dropped the child at school and picked her up from school. Spend time arrangements between the father and the child ceased after 16 June 2018, on the mother’s instigation, and since that time, the child has not spent any time, nor communicated, with her father.
On 3 July 2018, the mother filed an application in the FCC seeking a discharge of pervious time spent with orders between the child and the father as well as the father attending the child’s kindergarten being Orders 4 and 9 of the final orders respectively.
On 26 July 2018, orders were made in the FCC. Those orders made were by consent, and provided, relevantly, as follows:
1.That orders 4(a) to (j) inclusive and order 9 of the Final Orders dated 24 July 2017 be suspended.
2.That the Mother take the child, X born … 2012 (X) to all appointments at MHC as directed by MHC, including the initial appointment on 9 August 2018 at 9:00am.
3.That the Department of Health and Human Services provide the Court with a report as to the outcome of the Specialist Assessment of X by MHC on 9 August 2018, including any report provided to the Department by MHC.
…
On 7 September 2018, the court made orders further adjourning the matter. The court relevantly also made a notation that subject to the Department of Health and Human Services (“the DHHS”) report, the court would consider on the adjourned date transferring the matter to the Magellan List of the then Family Court of Australia (“Family Court”) given the recent allegations of sexual abuse.
On 5 February 2019, the FCC made orders that the proceeding be transferred to the then Family Court (and to the Magellan List) pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) and that the MHC report be sealed and not be released without court order.
On 22 May 2019, the Court made orders for the release of the MHC report to the parties’ legal representatives and the ICL. Orders were made by consent that both the mother and father attend upon Dr P for the purposes of a psychiatric assessment and report; and that the father attend upon Ms E, psychologist, for the purpose of a psychosexual assessment and report, amongst other orders.
On 27 March 2020, the court made orders that: the trial date be vacated; the DHHS provide a s 69ZW of the Family Law Act 1975 (“the Act”) report as a matter of urgency; for the parties to attend upon a Family Dispute Resolution Service before 18 May 2020; and that s 102NA(2) of the Act applied with the father not permitted to personally cross-examine the mother.
THE EVIDENCE
The mother and the father
Both parties are of European background. The mother is the second child of her parents, and has two brothers with whom she maintains a relationship. The maternal grandparents have a close relationship with the child, and have housed the child and the mother as a consequence of the parties’ separations.
The father’s family upbringing was marked with tragedy and loss. His father, with whom he was close, died in 1980. His death was described as a suicide, although the father claims that it was a murder. The father’s mother, following her husband’s death, began a relationship with a family member. When she attempted to end the relationship, the male shot her and killed himself in a murder-suicide. Following the death of his mother, the father became a ward of the State and was placed in the care of the Catholic Church. The father was not on his evidence sexually abused, but reported that he ran away to avoid the threat of abuse. The father’s older brother died by suicide in 2007, a loss felt keenly by the father.
According to the Family Report of Ms J dated 27 July 2016, and as conceded by the father, the Victoria Police file indicates that the father was charged with numerous offences during the 1990s and 2000s, which included:
(a)using threatening words, including making a threat to kill in 2004;
(b)theft of a motor vehicle in 2002;
(c)possession of and cultivating cannabis in 1987, 1988 and 1999;
(d)use of indecent language in 1990 and 1994; and
(e)various traffic offences.
The mother has made, in part, retrospective allegations of abuse of her, including, physical abuse, and sexual abuse of the child, as detailed in her affidavit evidence of 24 June 2019. The father denied these claims, but acknowledged mutual verbal conflict and abuse by both parties, one toward the other. The mother admitted in cross-examination that she has verbally abused the father.
On 23 February 2009, as discussed in paragraph 71 of these reasons, the father was admitted to Z Hospital psychiatric inpatient unit for “a few hours” after being abusive towards the mother’s parents and speaking of suicide whilst intoxicated.
On 17 October 2009, a report of family violence was made by an unknown source to police in relation to a verbal argument between the parties. The police attended at the parties’ home. Both were found to be substance affected, and there were no concerns regarding the safety of either party.
The mother makes numerous allegations as to the father’s behaviour, which the father denies save he admits to being disapproving of the mother’s brother and having an issue with the maternal grandfather such that he wanted to limit the child’s contact with him, between 2011 and 2013, including that, the father would:
·approach her from behind whilst arguing and leave bruises on her ribs;
·corner her in the “back section of the kitchen”;
·restrict her from going to the shops or leaving the house;
·tell her that she would go missing and no one would find her;
·control all aspects of her pregnancy and afterwards, including feeding and bathing the child;
·get angry with her because she could not produce breast milk and they would have to buy formula;
·not permit her to go to mother’s group;
·not allow the maternal grandparents to babysit the child; and
·deny the mother’s brother from having a relationship with the child.
The mother further alleges, and the father denies, that up until she left the father in December 2014, the father called her names such as “retard” and “little girl”. The mother also alleges other incidents of abuse by the father, in particular, the mother refers to a neighbour coming over and checking on her after hearing the father “abusing” the mother. Other incidents alleged by the mother to have occurred are, the father:
·cornering the mother in the bathroom, leaving bruises on her arms;
·taking the cordless phone off the mother and throwing it;
·smashing “a dirty nappy into a cake” she had made;
·threatening to commit suicide; and
·cracking a tile in the bathroom with his head during an argument.
The father denies these allegations as made by the mother.
On 19 October 2014, the police attended the parties’ residence following an argument between the parties which resulted in the father hiding the car keys from the mother when she indicated she wanted to go and stay at the maternal grandfather’s house. No threats or violence was recorded by the police, and the father gave the mother the keys with police noting that “both parties [were] emotional and needed some time apart”.
Following their initial separation and in December 2014, the mother reported “controlling behaviour and verbal and emotional abuse” by the father. On 12 December 2014, the mother made a report to police that “for the entirety of the relationship [the father] has been verbally abusive towards her, often threatening her”. The police report noted that the mother and the child moved in with maternal grandmother on 9 December 2014 with fears that the father could attend and cause damage “or if angry enough that he may assault her and take their daughter”. Police sought an IVO for the protection of the mother and child. An interim order was made.
The mother alleges in her trial affidavit evidence that in 2015, the father “threated [her] with a knife” by picking up the knife while “staring” at her and “ever so gently placed the knife in the sink”.
On 1 December 2015, a final IVO was made by consent and without admissions by the father for a two year period listing the mother and child as the affected family members. No allegations were made by the mother in her application for an IVO in 2014/2015 of physical or sexual abuse with the police report noting verbal abuse, aggression and threats. That order expired on 1 December 2017.
On 24 July 2016, in the first Family Report, prepared by Family Consultant Ms J, the mother expressed frustration that the child should have to spend time with her father.[4] The mother believed that the father had “nothing to offer”, albeit the child was observed to be happy when interacting with her father and distressed when with her mother. In July 2017, the mother consented to the child spending unsupervised substantial and significant time with the father. In September 2017, the parties resumed their relationship.
[4] Family Report dated 27 July 2016 p. 12.
The parties’ second separation occurred following an incident on Mother’s Day in 2018, being 13 May 2018. The mother alleged that the day before Mother’s Day 2018, she took the child to the father’s home and went outside to smoke a cigarette. The child and the father remained inside playing. When the mother returned indoors, she claimed that the child came running to her, crying. When she asked the child what was wrong, the father stormed into the room and allegedly said to the child, “You treat me like fuckin’ garbage.”[5] The mother claimed that the father’s behaviour escalated and resulted in him attempting to convince her for an hour that her family was “rubbish and don’t deserve a granddaughter and that I [the mother] should not associate with them.”[6] The mother claimed that the father then slammed her Mother’s Day present that the child and father had made for her on the floor and said “here happy fuckin Mother’s Day.”[7] The mother left with the child, and returned to their home. The mother’s evidence was further that, on 15 May 2018, the father attended the mother’s home and apologised for his earlier behaviour. The mother did not accept the apology. The father then telephoned the mother in the evening (at 7 pm) and requested to see the child. The mother refused as it was the child’s bedtime. She claimed the father did not take “no for an answer” and “turned up” at her doorstep 10 minutes later.[8] The father put the child to bed and an argument ensued between the parties (as instigated by the father) in reference to the court proceedings, whereby the father accused the mother of using the child as a “pawn.”[9]
[5] Mother’s affidavit filed 24 June 2019, paragraph 22.
[6] Ibid, paragraph 23.
[7] Ibid.
[8] Ibid, paragraph 25.
[9] Ibid, paragraph 26.
The father alleged in his evidence that the relationship ultimately broke down for the second time because the mother would not allow him to spend time with the child over the Christmas period in 2017, despite her having promised to do so.[10] He claimed that the mother’s version of events in and around Mother’s Day 2018 was untrue, save that the parties had argued. His evidence as to their argument was that it arose because he had received messages from a Ms W, a friend of the mother, whom the father is distantly related to, but had only met in or around July 2018, saying “they would make sure they would send [the father] to prison”, “they” referring to Ms W and the mother. The father’s further evidence was that he had not “slammed the Mother’s Day present to the ground”. Indeed, he still has the bird house, which “is not damaged in any way, shape or form”.[11] The father acknowledged visiting the mother’s home in mid May 2018, but stated the purpose of his visit was to assure the child that he had not called her “dumb”, as told by the mother to the child.[12] The father claimed that he had said to the mother around this time that he was “done” with the situation between him and the mother, not that the child was “dumb”.[13]
[10] Father’s affidavit filed 15 July 2019, paragraph 9.
[11] Ibid, paragraph 11.
[12] Ibid, paragraphs 10-12.
[13] Ibid.
Further verbal altercations between the parties were had, mostly in respect of the father’s desire to spend time with the child and the mother’s refusal of such time. [14] Whilst the mother blamed the father for the disputation, she also engaged in abuse of the father. She admitted that she had sent the father an inappropriate text message stating that she “hoped his dick would fall off” in the course of the parties disputation.[15]
[14] Mother’s affidavit filed 24 June 2019, paragraphs 29-30.
[15] Ibid paragraph 31.
On 20 June 2018, being a few weeks after the parties cessation of their relationship, and shortly prior to the child being due to spend holiday time with the father, the mother notified the Sexual Offences and Child Abuse Investigations Team (“SOCIT”) of disclosures allegedly made by the child to her. In summary, it was the mother’s evidence that the child had disclosed to her that the father had, between 30 May 2018 and 18 June 2018: played a tongue game with her which was “a secret”; licked her bottom; allowed her to lick the father’s bottom cheek; poked her in the vagina; hurt her privates when she was sitting on his knee; and put his fingers in her vagina and it “hurt a lot”.[16]
[16] Ibid paragraph 33.
On 25 June 2018, the mother made a further IVO application for her and the child’s protection citing “controlling behaviour, verbal and emotional abuse” of the mother by the father. She again made no allegations of physical or sexual abuse at the time. The initial sexual abuse disclosures made by the child to her mother had however, on the mother’s evidence, already been made to her. No concerns about the child’s welfare were raised within the IVO application made by the mother in June 2018 aside from the father allegedly telling the mother “he will just see their daughter whenever he wants to and that he will buy the child unauthorised gifts”.
Despite the failure of the mother to make any reference to alleged sexual abuse of the child in the IVO application referred to above, the mother’s evidence was that the child had in fact made earlier disclosures to her, and had presented with related behaviours of concern, in the period prior to February 2017, and up to June 2018. During this period, the parties commenced reconciling their relationship with it being the mother’s evidence that from 29 July 2017, the father would go to the mother’s residence for dinner most nights with the parties commencing an intimate relationship in September 2017. The father agrees with this evidence as to the reconciling of the parties’ relationship. Of relevance was the mother’s evidence that from the making of the final orders on 24 July 2017, “the only night that [the father] spent with [the child] by himself” until the parties separated following the Mother’s Day incident in May 2018 was 28 July 2017.
The father’s evidence as to the mother’s various claims regarding what it was the child was alleged to have said to her, was initially that the mother was “creating stories to serve her motives of alienating” the child from the father.[17] The father observed that the mother continued his time with the child throughout a period in which she now claims the child was at risk. The father was, however, prepared to accept that the child had made certain disclosures to MHC, and possibly to the mother, and that something may have happened to the child but denied any wrongdoing on his part. He wanted the child to be spoken to by the police, both at the time of the disclosures, and ongoing.
[17] Father’s affidavit filed 15 July 2019, paragraph 17.
The first incident the mother deposed to, occurred in February or March 2017. The parties were separated, the father spending time with the child. The mother stated that the child came into her bedroom and placed her hand on the child’s genitals. When asked by the mother what she was doing, the child replied with words to the effect of “Pa said I can make mummy touch my bum game.” The mother informed her doctor of what was said by the child to her, and was advised to contact the DHHS. The doctor referred the child to Z Hospital for examination, and stated he would contact the DHHS. Later that evening, the mother telephoned Suburb U Police who invited the mother to bring the child in for an interview. The mother did not do so. Suburb U Police did not progress the matter as they noted an investigation was being managed by SOCIT and that an IVO had already been filed by Suburb EE Police, the 2015 IVO. The mother asserts that she did not suspect the father of sexually assaulting the child at this time.[18]
[18] Mother’s affidavit filed 05 August 2019, paragraph 19.
At the time of the first incident, as described by the mother and referred to above, the mother was attending MHC for counselling on her own initiative. On 20 March 2017, the mother was informed by her counsellor, of “a MHC facilitated group program for children to learn safety skills.” On 28 March 2017 until 12 April 2017, the child attended four sessions at MHC for protective behaviours. The child’s attendance was arranged for by the mother without consultation with the father. There were no sexual abuse allegations.
On 18 May 2018, the child and the father were having a telephone conversation when the child said to her father, “I’ll getti getti you in the privates.” The father replied “Will what?” and the child responded “I’ll tickle you in the privates.” The mother then took the phone from the child, and the father asked the mother what had just happened. The mother did not respond. The father claimed that the phrase “getti getti” was often used between him, the mother and the child to refer to a tickling game where they would tickle the child under her chin.
On 1 June 2018, the child spent time with her father between 3.30pm and 7pm. Upon her return home she allegedly said to her mother “I’m scared I’m going to die, I’m scared Pa is going to kill me.”[19] The mother’s evidence was that the child expressed that she wanted to kill herself. The mother was concerned and made an appointment with the child’s General Practitioner for 4 June 2018. The child had also complained of a sore belly and the child’s doctor performed an ultrasound on the child. The father attended the ultrasound appointment with the mother and child. It was his evidence that the child had complained of a “sore belly” for two to three weeks prior to this appointment, which is consistent with what the mother told DHHS. The mother asserts that she did not suspect the father of sexually assaulting the child at this time.[20]
[19] Mother’s affidavit filed 24 June 2019, paragraph 34.
[20] Mother’s affidavit filed 05 August 2019, paragraph 17.
On 4 June 2018, the mother informed the child’s doctor about the telephone conversation outlined in paragraph 56 above, and the child’s recent behaviour. Despite the mother’s alleged concerns, the child spent unsupervised time with the father on 8 and 9 June 2018. It was the mother’s evidence that she couldn’t remember the child saying she did not want to go but just that the child was “distressed”. I note that, on 7 June 2018, the mother had a parenting session with Ms Y from MHC. No allegations of sexual abuse were raised by the mother.
Around 13 June 2018, the child allegedly told the mother that the child and the father play a secret tongue game which the child described as “we put our tongues together” and that “Pa is worried he’ll get into trouble if mummy finds out.”[21] The father denied this allegation together with the existence of any such game.[22] On the same day, the child’s doctor informed the mother of a urine sample result which showed red and white blood cells present, but no infection.[23] Again, despite the mother’s stated concerns, the child spent unsupervised time with the father on 15 to 16 June 2018.
[21] Mother’s affidavit filed 24 June 2019, paragraph 45.
[22] Father’s affidavit filed 15 July 2019, paragraph 24.
[23] Ibid, paragraph 46.
On 17 June 2018, the mother deposed that the child complained that “her wee was stinging” and that she took the child back to the doctor who took a further urine sample.[24] The father asserts that, when the child was in his care on 15 to 16 June, the child did not inform him of any stinging or soreness when urinating.[25] On the drive home, the mother deposes that, the child said “Pa licks my bottom but I am not allowed to lick his, just his cheek” and “Pa pokes me in the giny…and puts his fingers there, it hurts a lot.”[26] The mother reported to the DHHS these allegations made by the child to her. The matter was referred to SOCIT Police and MHC. It was the mother’s evidence that she was “never pressed for the child to be interviewed by the police”, however, as referred to in the DHHS report, it is noted that the mother refused for the child to be interviewed. No Video Audio Recording of Evidence (“VARE”) tape was made although the mother became “aware” that the father wanted the matter investigated. The mother stopped the child’s time with the father. The father has repeatedly, since that time, sought that the child be interviewed as to the allegations made.
[24] Mother’s affidavit filed 24 June 2019, paragraph 48.
[25] Father’s affidavit filed 15 July 2019, paragraph 26.
[26] Mother’s affidavit filed 24 June 2019, paragraph 49.
Doctor P
Dr P, consultant psychiatrist, prepared an affidavit affirmed on 20 June 2019 to which was annexed his Psychiatric Report in respect of both the mother and the father. The mother was assessed on 29 May 2019, the father on 4 June 2019, with the date of Dr P’s report being 10 June 2019. The report was prepared pursuant to a request from the ICL for individual psychiatric assessments of both parties. Included in the materials used in the preparation of his report was: the affidavit material of the mother and father; the Psychiatric Report of Dr AA of 28 June 2017 in respect of both parties; the Family Report of Family Consultant Ms J of 27 July 2016; the s 11F Report of Family Consultant Ms H of 4 February 2016; and the report of Ms L, MHC counsellor/advocate dated 7 January 2019. Dr P was not cross-examined by the parties. His affidavit evidence was unchallenged. The court accepts his evidence which is set out below.
Dr P noted in his psychiatric reports, a history of cannabis and alcohol use by both parties. The father’s history was that he used approximately one gram of cannabis per day and had “a few stubbies of beer per day”, or, when he was still with the mother, a glass of wine each night. The mother described her history to Dr P as using alcohol rarely. The mother also described a history of cannabis use commencing before the start of her relationship with the father, and continuing until her cessation of such use in 2015. The parties were both smokers with the mother smoking around eight cigarettes per day and the father six cigarettes a day. At the trial, the father said that he now smokes once a month.
In the history as provided by the mother to Dr P, the mother “denied a history of generalised anxiety” but described “ongoing anxiety around the Court process and around the allegations of sexual abuse that her daughter made”.[27] Dr P noted the mother engaged with counselling through MHC from 2015, following the parties’ first separation. The mother resumed such counselling after the second separation of the parties. At the time of interview, the mother was attending counselling on a weekly basis. The mother, in her interview with Dr P, accepted that she “had a history of anxiety and did not believe she required any psychotropic medication.”[28]
[27] Report by Dr P dated 10 June 2019.
[28] Report by Dr P dated 10 June 2019, paragraphs 14-37.
In Dr P’s opinion, the mother suffered from an adjustment disorder with depressed and anxious mood, in a context of difficulties with her relationship with the father, and ongoing challenges with the court process. He did not believe that the mother presented with features of obsessive compulsive personality disorder as previously diagnosed by Dr AA. Rather, Dr P found the mother to have reliant personality traits (short of a disorder) in the context of her relationship with the father and also with her own father.
It was Dr P’s evidence that, the mother’s anxiety is “at risk of having an impact on the child” and that she would need to work with her psychologist to lessen that anxiety. Dr P was not of the opinion, however, that the mother had no ability to facilitate a relationship between the father and the child. Rather, she had a reduced ability that the mother’s psychologist needed to address with the mother.
Dr P noted, in respect of the father, that in terms of insight, the father recognised that he “suffered from anxiety and was accepting of psychological input should that be recommended; however, he was not agreeable to medication. He disagreed with the previous diagnosis of personality disorder.”
Whilst the father presented to Dr P in a “somewhat intense manner”, Dr P noted his affect, however, was within normal limits. Whilst the father’s “thought form was circumstantial in terms of excessive detail and going off on tangents at times”, there was no formal thought disorder. Dr P “could not detect any delusions, depressive themes or suicidal ideation”. It was Dr P’s evidence that “there did not appear to be any abnormality of perception or cognition” by the father.
Dr P was given a description of the father’s family history, by the father, as discussed in paragraph 34 of these reasons.
In terms of psychosexual history, Dr P noted that the father denied any problems in terms of his sexual functioning.[29] Dr P noted of the father:[30]
27.He said that in his twenties he had a higher sex drive. Now he does not, and he could not be bothered having sex.
28.He denied any paraphilia’s including any interest in children including pornography. He said he has no interest in pornography in general.
[29] Ibid paragraph 26.
[30] Ibid paragraphs 27 – 28.
The father described a history of anxiety from the age of 16 with panic attacks occurring infrequently, although more frequently in the 18 months prior to seeing Dr P. He also described feeling depressed but denied any significant periods of depression after the breakup of his first marriage and the two breakups with the mother.
The father described a brief stay he had in the Z Hospital psychiatric inpatient unit in 2009 “in the context of presenting as intoxicated after drinking a bottle of ouzo”. He reportedly was abusive towards his in-laws and talked of suicide. Police escorted the father to the hospital. He stated to Dr P that, he was released within hours without a diagnosis or any follow up. He has had no other contact with public mental health services.
The father described some distress for four months after the allegations of sexual abuse were made against him in 2018.
Dr P noted that Dr AA had diagnosed the father with anxiety disorder with features of obsessive compulsive and generalised anxiety and borderline personality disorder.
Dr P agreed with Dr AA that the father had an anxiety disorder, but in his opinion it was a panic disorder. Dr P was of the opinion that the father did not have features of obsessive compulsive disorder, or generalised anxiety, as diagnosed by Dr AA.
In terms of the father’s past forensic history, Dr P noted that:
(a)the father had been charged with numerous offences in the 1990s/2000s including: theft of a motor vehicle in 2002; and using threatening words making a threat to kill in 2004;
(b)the father was charged with using, possessing, and cultivating cannabis in 1987, 1988, and 1999;
(c)the father reported a history of driving offences in the past. He also reported in the 1990s, he was charged with resisting arrest outside his workplace; and
(d)the father described a verbal assault in the early 1990s with someone who was driving.
Dr P further noted that a police report of family violence was made on 17 October 2009, against the mother, in relation to a verbal argument between the parties. It was reported that there were no threats of violence, nil concerns for safety, and both adults were substance affected. A further report to Victoria Police by the mother on 1 December 2014, that the father was verbally and emotionally abusive toward her during visits with his daughter, and exhibited controlling behaviour was assessed as high risk by Victoria Police, and an interim IVO was made against the father before a final order in December 2015 as referred to in paragraph 43 above.
In Dr P’s opinion, the father had also a depressive disorder, not otherwise specified, with the father having a history of depression that did not meet the threshold in terms of intensity or symptoms for major depressive disorder or recurrent depressive disorder. At paragraph 72 of his report, Dr P said:
In terms of his personality, I believe that Mr Colina has displayed some maladaptive personality traits in the past which has affected his functioning, including in relationships and in terms of offending behaviour which likely meet the threshold for the diagnosis of personality disorder. Whilst, in my opinion he does not have sufficient features to diagnose any specific personality disorder, he has features of the borderline type in terms of impulsivity, mood instability and anger (but not sufficient other features), the obsessive compulsive type in terms of control and behaviour and of the paranoid personality type in terms of the distrust of others.
In the opinion of Dr P, it would be important for the father’s personality traits to be the focus of individual, psychological work, as should his panic disorder.
In summary, Dr P said in his report:[31]
76.I note the serious allegations of sexual abuse and these are appropriately a matter of the Court to determine. I was unable to obtain any evidence from him on interview of any tendency towards paedophilia or sexual interest in children.
77.In terms of the effect of his anxiety and his personality on his parenting, in my opinion, the panic attacks could potentially impact if they occur during contact although I do not believe there is evidence that this had been the case. In terms of his personality, in my opinion, he may exhibit controlling behaviours and, should the could [sic] grant him access, it would be important for him to address this in psychological therapy.
78.I have not assessed the child but, given the report of MHC, should the Court order contact between Mr Colina and the child, appropriate psychological preparation and support should be put in place for the child.
[31] Ibid paragraphs 76 – 78.
The Department of Health and Human Services
A report dated 6 May 2020 was prepared by Ms BB, an advanced child protection practitioner, of the DHHS pursuant to s 69ZW of the Act by order of the court dated 27 March 2020. The report noted that, at that time it was prepared, there was no current child protection involvement with the family, however, between August 2015 and 24 May 2019, 11 notifications were made to the DHHS, with two matters proceeding to protective intervention.
A summary of the historical reports made to the DHHS, and the DHHS’s protective involvement, is as follows, as taken from the s 69ZW report:
(1)on 31 August 2015 to 14 September 2015, it was reported to the DHHS that the child had been exposed to family violence by the father towards the mother and that an IVO had been obtained by the mother with Police Assistance. The matter was closed at the Intake and Assessment Phase;
(2)allegations of family violence by the father, and that the child was at risk of the father “throwing objects in fits of rage” were made on 15 December 2015 to 17 December 2015. As the matter was before the FCC, the matter was closed at the Intake and Assessment Phase;
(3)the father reported concerns on 5 October 2016, that the child “disclosed being physically chastised” and yelled at by the maternal grandparents and mother respectively. No follow up was conducted;
(4)on 17 October 2016, the DHHS received concerns from the mother in relation to the child having unsupervised time with the father. It was deemed that there was no role for the DHHS;
(5)between 23 November 2016 to 25 November 2016, the DHHS received information that the father’s “behaviour and actions during behaviour change program” were inappropriate. No details were outlined in the report given to the court as to what this behaviour was;
(6)on 9 March 2017 to 14 March 2017, the DHHS received two similar reports stating that the child had disclosed a “fighting game” that she played with the father, “including hitting on the vagina over the clothes”. The matter was referred to SOCIT and as the child was in the mother’s care, the DHHS closed the matter;
(7)protective intervention was taken by the DHSS between 4 June 2018 to 17 July 2018 following a report that the child “had been complaining of abdominal pain for four weeks”, “odorous genitalia” and that the child had asked the father to “tickle her private parts”, and that the child had said that she wanted to kill herself. The DHHS undertook the following steps and observations:
(a)a Child Protective Worker attended the mother’s home and saw no evidence that the child wanted to kill herself;
(b)SOCIT also assessed no further role for them as “no evidence that a criminal offence had taken place”;
(c)the DHHS encouraged the mother to seek support at MHC for herself and the child;
(d)the DHHS were informed that the mother informed Victoria Police that she did not want the child to be interviewed;
(e)the mother advised the DHHS that she would continue to allow the child to see the father as the child “has told her in the past that she has made stories up or had been mixed up and has said that Mr Colina had told her to make things up”;
(f)SOCIT was re-engaged in the matter and undertook an interview of the child. SOCIT ascertained further investigation was required, and the matter was transferred to the Sexual Abuse Investigation Team of Child Protection;
(g)a first-time visit was conducted with the father on 26 June 2018. When a Child Protection worker explained to the father the nature of the DHHS concerns, namely sexual abuse of the child by him, the father denied the allegations and expressed his view that the mother and the maternal grandmother were “making things up to get back at him”. He said to Child Protection worker, “X has a voice and can be questioned about it”;
(h)the DHHS makes a report pursuant to court order not recommending time between the father and the child as a specialist assessment through MHC was being undertaken at that time; and
(i)on 17 July 2018 the DHHS closes the matter as it was deemed that the mother was able to act protectively.
(8)further disclosures were made to the DHHS between 4 November 2018 to 22 November 2018, in particular, that the child allegedly disclosed that she and the father play a game “licking each other’s bum”. The matter was closed due to no contact between the child and the father, occurring;
(9)on 4 to 5 December 2018 information received by the DHHS of firearms in father’s presence and that he told the child to “say goodbye to her mother”. Matter closed;
(10)the DHHS undertook an intake assessment between 10 December 2018 to 12 December 2018 following the child allegedly disclosing that the father held a gun to the child’s head and threatened to kill the mother. No contact had occurred between the chid and the father since June 2018. Police were informed, and neither the Police nor the DHHS progress the matter; and
(11)following the report from MHC (as discussed below), the DHHS undertook a protective intervention between 16 January 2019 to 24 May 2019. The father was interviewed on 29 April 2019 and “presented as adamant that he has not sexually offended against X but has indicated that he believes someone has offended against her” but did not specify. In May, DHHS received a copy of the Magellan Report dated 20 May 2019 which recommended no contact between father and child. The DHHS deemed that the concerns were substantiated and recorded the father as a person responsible for harm.
There has been no further involvement by the DHHS since the last protective intervention report being 24 May 2019.
None of the above history of the involvement of the DHHS was controversial or challenged by the parties.
Ms G, Mental Health Social Worker
Ms G is an accredited mental health social worker. She affirmed two affidavits of evidence in this proceeding. The first on 5 August 2019, and the second on 19 March 2021. She was not cross examined by the father and the ICL, her evidence not being challenged.
The mother has attended for counselling with Ms G since 2 November 2018 when the mother was referred by CC Support Program to Ms G for the purposes of providing a report in support of the mother’s then victims of crime application. At commencement, the mother presented with high levels of anxiety, stress, and depression, and reported symptoms of acute trauma. Ms G’s treatment of the mother has focused on building the mother’s understanding of the pattern of abuse that kept her in the relationship with the father, and developing awareness of the effect that it has had on her and her functioning. Testing by Ms G in August 2019, indicated that the presenting levels of anxiety, stress, and depression suffered by the mother had reduced to very low levels, and that symptoms of acute trauma had subsided. The mother was able to have a future focus, and the mother’s prognosis was “very good.”
In the subsequent report of 18 March 2021, Ms G noted that the mother had:
…progressed in her recovery. Her personality has emerged as enthusiastic and curious, quiet but passionate about food and culture, loyal, trusting, persistent and determined with a dry sense of humour.
Ms G noted that the mother:
…has utilised this learning attitude to learn strategies to manage her daughter’s anxiety symptoms, whilst X received counselling via MHC, it became clear that what would be most helpful was a parenting approach that addressed the feeling of a lack of safety X experienced earlier in life.
Ms G noted that the mother and child were currently living with the mother’s parents. They had been able to feel safe and supported in a caring family environment, which enabled the mother to study, and work part-time with friends in a food business. The mother reported to Ms G significant improvement in the child’s anxiety, which was also reflected in the child’s school reports which were good. The need for ongoing counselling attendance by the mother, after three years of regular weekly counselling, was not apparent.
The mother is functioning well and Ms G’s evidence attests to that. Dr P’s evidence attests to the mother’s ability, albeit at that time, reduced, to support the child’s relationship with the father.
Ms E, Clinical Psychologist
Ms E was cross examined by counsel for the ICL and counsel for the mother on the contents of her psychosexual report in respect of the father dated 26 September 2019 as annexed to her affidavit affirmed 2 October 2019, with her psychosexual evaluation of the father conducted on 23 July 2019. Ms E, in reaching her conclusions, had before her the affidavits of each of the mother and father, as well as the following reports:
(a)Family Report of Ms J dated 28 July 2016;
(b)Psychiatric Report by Dr AA filed 4 July 2017;
(c)Magellan Family Report of Ms K dated 20 May 2019;
(d)MHC Specialist Assessment Report dated 7 January 2019;
(e)Section 11F Report dated 4 February 2016; and
(f)Psychiatric Reports by Dr P filed 24 June 2019.
Ms E was a single expert witness. She conducted an individual psychosexual evaluation of the father. Ms E was an impressive witness and I accept her evidence, save where indicated in paragraph 99 below.
The purpose of Ms E’s report was to determine whether or not the father is of high risk of recidivism or not. In doing so, Ms E considered the father’s presentation, psychosocial history, his education and employment history, relationship history, forensic history, the sexual concerns raised in relation to the child by the mother and any mental health issues.
Ms E noted the presentation of the father to be:[32]
…forthright, intense, and passionate. He communicated with hand gestures and was loud and animated throughout the assessment, though never aggressive. He expressed frustration regarding current legal matters and allegations of abuse by the mother, Ms Otero, which he vehemently denies.
[32] Expert Report by Ms E, psychosexual evaluation of father dated 23 July 2019, paragraph 3.
The father presented, in Ms E’s psychological evaluation, with borderline personality traits:[33]
…including impulsivity, past suicidal ideation, emotional dysregulation, anger issues, unstable interpersonal relationships and paranoid stress related thoughts or distrust of others.
[33] Ibid paragraph 36.
In terms of his mental state examination, Ms E noted, amongst other things, that the father was animated, had topic congruent frustration, was forthright and lacking a filter at times when he spoke, that his speech was very loud and sometimes pressured, and his thought processes disorganised and sometimes difficult to contain. I note that these behaviours and thought processes were evident at trial throughout the father’s cross-examination. The father’s insight judgment was described as poor to fair. In her assessment using the Family Strengths and Needs Assessment tool (“FSNA”), Ms E assessed the risk rating of the father to be moderate and noted that:[34]
His parenting needs outweigh his parenting strengths on the FSNA and may have a negative impact on his parenting capacity.
[34] Ibid paragraph 37.
Importantly, Ms E concluded however, that the father’s mental health difficulties should not preclude him from having time with his daughter, and nor did they suggest that such time needed to be supervised.
In the forensic history of the father, as described by Ms E below, she noted that:[35]
On 1 December 2015, after the initial separation, Ms Otero reported controlling behaviour and verbal and emotional abuse by Mr Colina. An IVO without admissions was put in place in – on 15 December 2015, there were no allegations of physical or sexual abuse.
[35] Ibid paragraph 23.
Ms E referred to the mother’s subsequent application for an IVO listing the mother and the child as affected family members was made on the same basis as the previous application, namely that the mother again reported controlling behaviour and verbal and emotional abuse of her by the father.[36] No allegations of physical or sexual abuse were contained in that latter complaint. Ms E said as to that omission:
The initial sexual disclosures by X to her mother were allegedly made between 30 May 18 and 18 June 18, but no concerns regarding X were raised within the IVO application and thus she was not listed as an affected family member requiring protection.
[36] Ibid paragraph 25.
In fact, upon the second IVO being made on 17 May 2019, by consent, the child was listed as an aggrieved family member, contrary to Ms E’s evidence, although as Ms E correctly observed, no concerns were raised in the mother’s application as to the child’s welfare and/or any presenting risks to the child.
Ms E noted that the mother had made retrospective allegations of violence by the father after separation, that both parents had admitted to mutual verbal conflict and use of derogatory language, and that the father had also, retrospectively, recognised that his protective behaviour may have seemed controlling to the mother.
Ms E reported the father’s vehement denial of the allegations and his belief the mother had been coaching the child. The father said to Ms E that he wanted the authorities to investigate. He became, “emotional” and expressed concern for his daughter’s wellbeing; he said, “My daughter is everything.”[37]
[37] Ibid paragraph 31.
The allegations allegedly made by the child are “very serious allegations” as acknowledged by Ms E that should have been investigated by police as “the allegations are criminal in nature”. Upon a review of collateral information, Ms E noted that the allegations that had been made had not been forensically investigate by SOCIT and a VARE had not been completed. It was her recommendation that a VARE and SOCIT investigation should be completed “before contamination as the child is very G and the alleged offending occurred a long time ago.”
Ms E considered the husband’s sexual violence history, psychological adjustment, mental disorder, social adjustment, and concluded in summary at paragraph 43 of her report:
A structured professional judgment approach integrates static and dynamic risk factors. Mr Colina has no formal sexual offence history, nor current criminal charges. He endorses relevance for a number of RSVP items on the basis of allegations only. Those items with suitable evidence present more so as risk markers and reflect an indirect, rather than casual role in sex offending. Mr Colina’s risk for sexual recidivism is estimated, subsequently, to fall within the low range. Risk review should occur should new information come to hand.
The father did not have a history of sexual offending. There was no evidence of paedophilia or indication that he was sexually attracted to prepubescent females.[38]
[38] Ibid paragraph 40.
Under the heading “Sexual Concerns”, Ms E set out a number of the disclosures said to have been made by the child of sexual abuse of her by her father. Ms E said as follows:[39]
MHC counsellor, Ms L, completed a specialist assessment with X over 13 sessions from August 8 2018 until December 2018. Prior to this, X engaged in a MHC protective behaviours program from 28 March 2017 until 12 April 2017 for four sessions; and two sexual assault and family violence counselling sessions between June 2018 and August 2018.
[39] Ibid paragraph 28.
When looking to the context of the allegations and disclosures, Ms E’s evidence was as follows:
44.Certain factors are present that reduce the confidence that can be attributed to allegations of childhood sexual assault. These include the child’s G age and susceptibility to influence, the child’s heightened anxiety, the mother’s personality difficulties, the low number of sexual offending risk factors, the lack of physical evidence (though the child was taken to hospital), the fact that the mother is invested in legal proceedings and has a conflictual relationship with the father, and the timing of the disclosures. These are matters for the Court to consider.
45.The timing of the allegations is concerning. All allegations of physical abuse and now sexual abuse have been retrospective, made soon after the separation and do not align with the violence risk set out by the mother in IVO application. The initial sexual allegations were made within about two weeks of final separation and just prior to what was to be the father’s first full week of unsupervised tine with X. In spite of the serious nature of the allegations, the mother did not notify SOCIT for a couple of weeks and raised no concerns regarding X’s well-being within her IVO application made during this time. The disclosures have escalated and become more elaborate although the child has had no contact with the father since June of last year and spent very little unsupervised time with him when her parents were separated.
46.The father believes that these allegation are another indication that the mother is seeking to discredit him to justify excluding him from his daughter’s life. Mr Colina is concerned that X’s disclosures have been coached; he said she repeatedly used the word “dad” though she only referred to him as “Pa” in the past. Mr Colina wants the allegations investigated by police.
47.The MHC assessment raises concerns of bias if it is used to make conclusions regarding the father’s culpability; X was already engaging in counselling for sexual abuse at MHC when the assessment commenced and had completed the protective behaviours program at MHC. The mother was also attending counselling at MHC and was highly influential in the assessment process, however the father was not interviewed. There is a risk of asking questions that confirm beliefs if there are preconceived notions.
While Ms E acknowledged that she did not assess the child, she considered the “13 session assessment, basically to elicit these disclosures”, regarding the child’s sexual abuse as, in her opinion, “not therapeutic” as it asked the child “to talk about the trauma” and that such “particular assessment is not appropriate for a six year old” on the basis that it could have caused damage.
Ms E concluded that while the allegations of abuse had not been investigated by SOCIT, and a VARE, to date, had not been completed, given the time that has lapsed, and the child’s young age, “it is possible that the child’s memory may now be contaminated.”[40]
[40] Ibid paragraph 46.
Ms E also concluded:[41]
The timing and context of all the allegations may also suggest the mother is seeking to discredit Mr Colina to justify excluding him from his daughter’s life.
[41] Ibid.
Ms E noted: [42]
…results on the FSNA suggest the likelihood that [the child] will be exposed to neglect or abuse in his care is moderate due to: mental and physical health issues; a traumatic childhood; problematic relationships with her ex-partner and family members; and his daughter’s high needs. This risk would increase if allegations of abuse are confirmed, but the risk would likely decrease if the father/child relationship is repaired; the father engages in therapeutic support, and communication and contact with the mother are well managed to prevent the child from being exposed to further conflict or abuse.
[42] Ibid paragraph 52.
Ms E recommended that if time between the father and child should recommence, her evidence also including that it was not possible to determine that the child had not been sexually abused, that family therapy between the father and the child may be appropriate to “ repair their relationship and/or for contact to be in substantial attendance of another responsible adult if the child is unwilling to engage otherwise.”
It was further recommended by Ms E that the father:
·engage a psychologist for cognitive behavioural therapy;
·engage in fortnightly dialectic behavioural therapy sessions for a minimum of 12 months; and
·engage a psychologist to address his symptoms of panic, disorder and depression, manage current stresses, implement more responsive interpersonal skills (so that he is able to recognise when his intensity may be overwhelming and adjust his behaviour accordingly) and borderline personality traits.
The father was agreeable to Ms E’s recommendation for psychological support and therapy and sought orders in those terms which I propose to make.
Section 11F Report
The s 11F Report was prepared by family consultant Ms H on 4 February 2016.
The mother’s allegations of family violence were described as “ongoing verbal, psychological, physical, financial and social abuse” from the father toward her.
The child was “an engaging and highly articulate child”. When observed with the father she was “talkative and expressive” and directed the father to look at her paintings. Towards the end of the session, the child, relevantly, said to the father “I can come home to your house…if you’re safe”. The father and the child hugged and kissed each other goodbye.
Ms H recommended the court consider Interim Orders for: the child to spend two hour each week supervised by a professional supervisor and with the supervisor to provide a report after at least six sessions; the ICL to make a determination on that report; a Family Report to be completed with the maternal grandparents to be interviewed; a Men’s Behavioural Change Group to be completed by the father; for the Mother to attend a Women’s Group Program for those who have left Family Violence; and for the Mother to attend a psychologist to aid the child’s anxiety.
It was the father’s evidence that he attended a further Men’s Behavioural Program following his attendance at DD Health Service in 2015, meeting the MCV Counselling Order requirements of 12 group work sessions, and in 2016, attending nine individual sessions before being discharged “due to breaches of agreed rules and guidelines”.
Ms K, Family Consultant
There were two Magellan Family Reports dated 30 August 2019 and 26 March 2021 (the addendum report) that were prepared by Family Consultant Ms K. Ms K was cross-examined by the parties.
In her report of 30 August 2019, Ms K recommended that the child’s time with her father be reserved. This recommendation was based on the issues of risk before the court and the level of vulnerabilities displayed not only by the child but the mother and the father as well. That recommendation remained in the addendum report prepared 26 March 2021.
In 2019, the father was in an emotionally heightened state at the interview with Ms K. He cried and was unable to sit still. While the father described his relationship with the mother as “peace” and that the child “presented as happy”, he disregarded the importance of the maternal grandparents in the child’s life. The father acknowledged that the child “more than likely” heard the parties arguing on Mother’s Day in 2018. The father denied the allegations of family violence and was dismissive of the IVOs, his past convictions, and the possible fear he caused to the mother by sending a text message that he and the child would not be kept apart. However, the father accepted “he had anxiety, depression and distrusted others including in relationships” and that he was to commence psychological sessions. Overall, Ms K described the father in the 2019 Magellan Family Report as being visibly upset and having heightened emotions at the interview stage to the point where he was unable to particularise any proposals as to parenting arrangements.
The mother, in her 2019 interview, presented with ongoing issues of vulnerability including “trauma from her experiences” which largely appeared unresolved despite receiving counselling, “a narrative…which was consistent with her affidavit”. In addition, it was noted that the mother having two counsellors “may be, undoubtedly, confusing” for the mother and that the mother needed to be “safeguarded from being undermined or compromised in her parenting in order for her to overcome unresolved trauma”. It was for that reason that Ms K determined that the child should remain in the mother’s care provided that the mother received adequate support.
Ms K’s interview with the child was brief, with Ms K indicating at trial that she was “very conscious that she had spoken to many people before attending the assessment for the family report.” The child presented as a bright and articulate G girl in the interview on 23 August 2019.
The child was reluctant to directly speak about her father and appeared to deflect the topic. She referred to her father as, “dad” and “he”. She informed Ms K to tell the judge that she had not seen her father for a “really, really long time”, “he left when I was a baby” and her parents were separated. The child stated to Ms K that she “liked” her father but she had to move because it “wasn’t safe for me ... he was just being rough.” The child further expressed to Ms K she did not want to continue talking about her home circumstances and thanked the Ms K for accepting this.
The child appeared to speak freely about school, which she enjoyed, she reported she was a “good student.” She advised Ms K that she had many friends at school and listed all of the things she was good at, such as drawing, singing, arts and crafts, riding her scooter and learning.
At the time of the report, the child had not spent time with the father for in excess of one year.
Ms K expressed concerns, as was reiterated by her at the trial, over the child’s “repeated exposure to agency interviews about her disclosures and parenting arrangements” and that such exposures “may further embed her feelings of worry and fear, and relive trauma.”
The father was not interviewed with the child due to the recommendations of MHC and the ongoing therapeutic interventions by MHC; any adverse impact upon the child of the father’s emotional heightened state at his own interview as a consequence of the allegations that had been made, and his separation from the child; and as a result of the child declining to speak any further about the father to Ms K. The intervention of MHC and the consequential determinations of the DHHS also considerably limited the content of this first report, and no observations were made of the child with the father.
In reaching her conclusion in the 2019 Magellan Family Report, Ms K said at paragraph 72 of her report relevantly:
…Of particular note is the corroborating views of police, DHHS and MHC that X appeared traumatised as a result of being (allegedly) sexually abused by her father and that there should be no spend time with him. Further concern was shared by DHHS and MHC that any spend time ought to be professionally supervised with high vigilance to safety to safeguard X’s emotional and physical needs. Further, police appear to be alert to the future possibility of criminal proceedings. As a result, this assessment acknowledged the protected nature of the DHHS Magellan and MHC Specialist Assessment Reports. While these reports may not be available to Mr Colina, it may be confusing for him to understand the severity of the allegations and impact on X, her needs are a priority and must be upheld.
Ms K considered the father to present “with an apparent inability to be child-centred and show empathy for the child’s experiences of alleged family violence and sexual abuse and parental separation”. She also noted this presented a limitation to the father’s ability to help the child repair and heal from the insecurities and vulnerabilities that were caused by her alleged experiences. Ms K indicated that there may be a future potential for the father “to continue to engage in harmful behaviours towards” the child and her mother.
In Ms K’s opinion:[43]
That X’s safety and the quality of her mother’s parenting needs to be safeguarded from further disruption and instability.
[43] Ibid paragraph 78.
In her view, should the court order any time between the child and the father, there may need to be targeted therapeutic intervention in order to prepare both the child and the father. Ms K said as follows:[44]
Ms Otero reported that with assistance from MHC, X understood, “Pa hasn’t made good choices and was unsafe.” Ms Otero reported that at the same time X missed and loves her father, and she (X) appeared sad and upset. Ms Otero indicated that she had similar feelings about her relationship and experiences with Mr Colina. Since viewing the family report video on the court webpage X reportedly stated to her mother that she did not want to see her father and then asked why she was not seeing him. X continued to express that her father was a “mean person” while at the same time fantasising about his past promises to buy her a puppy and a new house with a bedroom for X. X reportedly expressed constant feelings of worrying, being scared but without further explanation or understanding.
[44] Ibid paragraph 41.
Overall it was Ms K’s recommendation that all parties, including the child, be supported either by a counsellor or psychologist. It was also recommended that following the MHC therapy the child see a paediatrician.
Neither of the mother or father, and nor the child, were interviewed for the purposes of the addendum Magellan Family Report. This lessened the effectiveness of that report. In fact, it was merely a reporting from a personal, albeit expert perspective, on other reports. Ms K’s evaluation was that, after reviewing the reports of Ms E and Ms G, her recommendations in the previous family report were not altered. Ms K said, relevantly, in her report:[45]
…the Court is now faced with determining whether Mr Colina poses an unacceptable risk to X and her mother and whether spend-time could or should occur. There is a risk of ordering spend-time and the possibility that this could, or could not, create a situation in which X becomes confused about the nature of the relationship with her father in the context of the alleged abuse. This may affect the integrity of a future possible criminal investigation and prosecution.
[45] Ibid paragraph 32.
Ms K clarified at the time of writing the first report she believed “that Victoria SOCIT still wanted to, at some point, interview X and obtain a…statement”. As noted in her addendum report the child was interviewed by SOCIT in relation to the allegations, for the purposes of criminal proceedings,[46] however, at trial, I note no such criminal charges exist. She said in her report:
While disclosures were made to police, no criminal charges were being pursued at this stage. However, this may be a future possibility SOCIT advised DHHS, as per their Magellan report, not to share the sexual abuse allegations with Mr Colina so as to preserve the integrity of the evidence.
[46] Magellan Family Report dated 30 August 2019, paragraph 26.
Ms K reaffirmed at trial that supervised time between the child and the father needed to be separate from any MHC intervention, and that the child should receive therapeutic intervention from another practitioner, separate from MHC’s therapeutic intervention, to assist the child with adjusting to any spend time arrangements in the future.
At trial, Ms K also expressed concerns about the language reported to be used by the child in the MHC report such as “command” and the fact that the mother had rung Ms L, at MHC, and told Ms L of a disclosure made by the child which is information that would not have otherwise be obtained from the child. Similarly, Ms K struggled to understand why “the father would then be involved in a medical appointment [being an ultrasound] when there was…potentially underlying concerns of sexual harm by him”.
At trial, Ms K identified that there appeared to be a difference between when she interviewed the father in 2019, and what she was hearing at trial of the father’s behaviour, indicating in her view a possible improvement in the father’s behaviour.
Ms L, Clinical Lead at MHC
Ms L was cross-examined by counsel for the father and counsel for the mother on her report dated 7 January 2019, and the redacted MHC O Hospital records. MHC is a department of O Hospital which offers counselling for victim/survivors of sexual assault and family violence. Ms L has been a counsellor/advocate with MHC for eight years. She has considerable experience. She described her role as:
…to sit with the child, to provide them with a safe space, to develop rapport with them and use my counselling skills to hear their feelings and their thoughts and their experiences in – and over time, those elicited child sexual assault and family violence disclosures.
(Emphasis added)
It was her evidence that the child had attended a group safety skills session with MHC in 2017, where the child had opportunities to talk in a group space both within the group and privately with the counsellor advocate. This attendance was arranged by the mother following the parties’ first separation although as noted above, no allegations of sexual abuse were made by the mother to MHC to support this attendance of the child. The mother was then attending counselling sessions at MHC however. MHC is a specific environment, and the counselling sessions have a context of sexual abuse and family violence allegations.
In 2018, the child had counselling sessions with firstly, Ms Y in June 2018 and August 2018, and then 13 further individual sessions with Ms L for the purposes of a Specialist Assessment as sought by the DHHS. Such sessions occurred between August 2018 and December 2018. It was Ms L’s evidence that the sessions with Ms Y were initial introductory sessions, not counselling sessions. Whether that is the case or not, the child was encouraged to tell Ms Y about her “feelings” in that time, as referred to below. The number of sessions the child had with Ms L, in the opinion of Ms E, may have been “too many” and may have lead the child to believe something was wrong, particularly in circumstances where the child was only five years old.
Following the child’s conclusion of sessions with Ms L, the child then commenced counselling sessions with Ms FF commencing on 17 December 2018. Such counselling sessions concluded in the following year with the child becoming very resistant to ongoing attendance.
Prior to the Specialist Assessment with Ms L occurring, the child was recorded to have had the following exchange with Ms Y, after leaving the mother in “the counselling room” to go to the toilet as accompanied by Ms Y:
Whist the writer was escorting X we spoke about whether she’s independent with her toileting. X advised the writer, proudly, that she was but stated that, “When at Dad’s he wipes all the time.” The writer asked, “How does that make you feel when you are such a big girl?” X commented, “It makes me feel not good.” “Why does he do this?” “Says I’m too small.” “Do you tell him you can do it yourself?” X responded with, “He won’t let me try.” The writer could see discomfort on X’s face and encouraged her to tell her what she was thinking and feeling, and X advised, “Makes me feel sick and sore in my tummy. He hurts when he wipes. He ignores when I say it hurts.”
The Specialist Assessment undertaken by Ms L, summarised the child’s disclosures in relation to the allegations of sexual abuse and family violence as follows:
•Sexual assault by father ...(penetrative kissing of the mouth, touching of genitalia, viewing genitalia, penetrative oral sex – digital, vaginal and anal, forced to give oral sex – penial and anal)
•Witness of Domestic Abuse (verbal and emotional) by father…to mother…
•Family violence by [the father] (physical, threaten with a weapon, verbal, emotional and sexual)
•Inappropriate forms of discipline against X by [the father] (smacking with hands).
The disclosures made by the child included: the father punching the child and telling her not to “tell anyone”; that the father tried to kill her saying “say goodbye to your mum”; that the father “pokes my ginie and licks in my bum”; and that he “command[ed]” the child to touch his tongue.[47]
[47] Specialist Assessment Report by Ms L dated 7 January 2019, p. 7.
While Ms L acknowledged that the report “is not stipulating the cause of the trauma”, suggesting that such symptoms presented by the child could be related to unknown causes, the Specialist Assessment concluded that:
X presented with symptomology consistent with those featured in Post Traumatic Stress Disorder (PTSD) in preschool children. The source of this PTSD could easily relate to the family violence and sexual assault she alleges occurred on multiple occasions during her childhood by her father, Mr Colina.
The Specialist Assessment noted that the “frequency and detail” in the child’s disclosures increased over the duration of MHC’s engagement. It is noted in the first sessions the child described the father as “allegedly ‘swearing’, being ‘mean’”. It was not until the fourth session that the child alleged “domestic violence by [the father] to her mother”. The alleged sexual abuse was not disclosed by the child until the sixth session. These disclosures were also noted in the report as increasing in “frequency and detail….outside of the Specialist Assessment” to the mother. I note that the report outlines that between the first and fourth sessions of the Assessment, the child resisted exploring with the counsellor “anger feelings, drawing her family, sad things in the family, male body parts and other things”. Of relevance, by the fifth session with MHC the child “did not want to attend the sessions” and her attitude towards the sessions included: having meltdowns; “crying in the car”; “kept asking to turn around” and having dysregulated behaviours consistent with what Ms L saw when the child “started or completed disclosing about incidents”. These behaviours were recorded to worsen as the sessions accumulated.
It was also Ms L’s evidence that it is a “very natural progression of disclosures” for the child to have made no disclosures in her first or second session, to then begin to describe worries and then at the sixth session talk about disclosures. I find this evidence problematic. In the words of Ms E “the MHC assessment raises concerns of bias if it is used to make conclusions regarding the father’s culpability”, particularly in circumstances where the mother was involved in the initial sessions and the father was not. Further, in circumstances where Ms L informed the child words to the effect of “your mum let me know…” approximately around session five.
It is also of some concern that the child was “observed by the writer and reported by [the mother] to have continual illness during the Specialist Assessment process” to a level that she had reduced attendance at school and “limited interactions in school and out of school”. There is no medical evidence to assist the court in any understanding of the relevance of those observations. The child’s performance at school throughout was normal and indeed the child has continued to do well at school.
Ms L was unable to accept that not everything the child said during her sessions was factually correct. It clearly was not. It was Ms L’s evidence that the child’s feelings and experiences, as expressed by her, were too detailed; that they were “impossible to coach”. The role of a MHC counsellor advocate, as described by Ms L, was to “believe children” and not to question “what was or wasn’t the truth”. Ms L acknowledged that the mother had called her, on more than one occasion, to inform her about the child’s disclosures to the mother between sessions, as invited to do so by Ms L. Ms L did not hear, directly from the child, all of the information attributed by her as being believable disclosures made by the child.
The MHC Specialist Assessment occurred within a context of the involvement of the mother and exclusion of the father; the absence of a SOCIT investigation and a VARE; the child attending sessions at MHC before allegations of sexual abuse were made; where there were and are no police charges; a denial of the allegations made by the father; and a father seeking that the child be interviewed by police, which was resisted by the mother. There were then 13 sessions undertaken with the child who made no disclosures of sexual abuse until the sixth session, and who vehemently expressed her desire to cease attendances at the fifth session. She was told that her attendance was required to be ongoing.
The MHC report recommended that no contact between the child and the father should occur until the DHHS and SOCIT further investigated the allegations to gain corroborating evidence. No further investigation occurred. No charges were laid against the father. The Specialist Assessment did not rule out the possibility of contact between the child and the father occurring, and recommended that if the court deemed it to be in the best interests of the child to have a relationship with the father, that such “contact must be supervised at all times by a professional in a secure access/professional site [sic]”.
LEGAL PRINCIPLES
Part VII of the Act provides the statutory framework in which the court’s jurisdiction, power and discretion to make parenting orders (as defined in s 64B) is exercised. The court may make such parenting orders as it thinks proper,[48] within the context of the objects of the legislation and principles underlying those objects.
[48] Family Law Act 1975 (Cth) s 65D.
The principles underlying the objects of Part VII of the Act are set out in s 60B(2) of the Act, and are (except when it is or would be contrary to a child’s best interests):[49]
(c)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(d)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
(e)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(f)parents should agree about the future parenting of their children; and
(g)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[49] Ibid s 60B(2).
Section 60CA of the Act provides that:[50]
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
[50] Ibid s 60CA.
Pursuant to s 60CC(1) of the Act:
…in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Section 60CC(2) of the Act sets out primary matters to be considered by the court and provides as follows:[51]
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
[51] Ibid s 60CC(2).
Section 60CC(2A) requires the court to give greater weight to s 60CC2(b).
In Mulvany & Lane (2009) FLC 93-404, Finn, May and Thackray JJ observed as follows:[52]
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
[52] Mulvany & Lane (2009) FLC 93-404 at [76] - [77].
The additional considerations as set out in s 60CC(3) must also be considered by the court. Specific reference to each and every of those considerations is unnecessary in these reasons.[53] What I shall include within these reasons are a discussion of the evidence, and my findings in relation to those considerations that are central to the facts of this particular case.
[53] Ibid at [77].
The presumption of equal shared parental responsibility is set out in s 61DA of the Act and it does not apply where there are reasonable grounds to believe that a parent has abused a child who is the subject of the proceedings, or another child of that parent’s singular household at the time or engaged in family violence.[54] Further, the presumption may be rebutted if the court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.[55]
[54] Family Law Act 1975 (Cth) s 61DA(2).
[55] Ibid s 61DA(4).
In this proceeding, the parties consented to an order being made by the court for the mother to have sole parental responsibility provided that the mother kept the father informed as to the child’s health, and the child’s schooling. The evidence supports that position.
CONSIDERATION
The court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[56] In M & M (1988) 166 CLR 69 (“M & M”), the High Court said:[57]
...The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access...
[56] Ibid s 60CC(2)(b).
[57] M & M (1988) 166 CLR 69 at [24]
In M & M, the High Court went on to consider what magnitude of risk would justify a court denying a parent access to a child and held that the test was best expressed as to whether there was an unacceptable risk of sexual abuse to the child:[58]
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[58] Ibid at [25].
As summarised by McClelland DCJ:[59]
Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N & S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]-[96].
[59] Olsen & Rigby [2020] FamCA 885 at [151].
Upon establishing the existence of an unacceptable risk, the court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[60]
[60] Blinko & Blinko [2015] FamCAC 146 at [83] referring to Russell & Close [1993] FamCA 62.
Section 60CC(2)(a) of the Act requires the court to weigh up the benefit to the child of having a relationship with both parents.
I have determined on a consideration of the evidence, and in particular the evidence of Ms E, that the father poses no unacceptable risk of harm to the child. I have considered whether the benefit to the child in having a relationship with the father, in circumstances where the child has not seen the father for in excess of three years, where the allegations have been made and the child has engaged extensively with MHC, and in light of the father’s mental health issues as described in the evidence, promotes the child’s best interests.
The Full Court in Jurchenko & Foster (2014) FC 93-598 observed that:
…having a “meaningful relationship” with both parents is but one part of a set of arrangement that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Further, as described by Brown J, a meaningful relationship is considered to be one “which is important, significant and valuable to the child”;[61] a qualitative assessment.
[61] Mazorski & Albright (2007) 37 Fam LR 518.
There was no issue in the proceeding that the child loved her father and missed him. The child has been denied a relationship with him for now an extended period. She has now not seen her father for in excess of three years. Given that extensive period of time, the child will be assisted by therapeutic counselling in her re-engagement with her father, with such counsellor to be nominated by the ICL. This approach is acknowledged by the father to promote the child’s best interests and he is prepared to meet the costs of such therapeutic counselling. Such counselling should not exceed a period of three months, with the period of three months occurring prior to the resumption of time spent with between the father and child. The supervision of time spent between the child and the father at commencement and ongoing, for a time, will be needed, to allow for the child to regain her trust and confidence in the father and thereby resume her meaningful relationship with him, which I find will benefit her. It will also importantly, from the perspective of the mother, provide a protective environment for the child, and be an environment where the father can concentrate solely on the re-establishment of his relationship with the child. The father acknowledges the need for the re-introduction phase to be supervised time spent with between him and the child.
The allegations of family violence made by the mother, as recognised in the Family Reports, consisted of verbal conflict between the parties, in some case enhanced by the parties’ intoxication, and more retrospectively physical assaults perpetrated upon the mother by the father which were not referred to in either of the mother’s applications for IVO’s. This important fact, combined with a lack of corroborative evidence, lead the court to ultimately conclude that there was insufficient evidence before the court to make any positive finding of physical family violence by the father against the mother, although the court does not dismiss those allegations and is mindful of the extent of such allegations. The court is satisfied however that some degree of family violence was perpetrated by the father upon the mother, and accepts what is it the mother says as to the impact of that violence upon her.
The court cannot, as conceded by the ICL and the mother, make any positive findings as to the allegations of sexual abuse disclosed by the child. Nor is that a finding the court is required to make.
Ms E’s evidence was compelling. Her psychosexual evaluation is a carefully considered assessment of the father’s risk of sexual violence, his psychological and physical wellbeing and of the risk the father poses to the child; the risk of sexual abuse being low in Ms E’s expert opinion. Ms E was also of the opinion that the father’s difficulties with his mental health, and his traumatic upbringing, should not preclude the child from developing a meaningful relationship with the father which shall be assisted by the counselling to be undertaken by the child and the father’s attendance upon a psychologist, to which he has agreed.
The court finds that any time spent between the child and her father should be supervised into the future for a period of time. The order that the court shall make is one that provides not necessarily for permanent supervision, noting that such orders are rarely made but are sometimes warranted.[62] Rather, what the court envisages in the making of the order, which it does, is that there will be a period of time spent between the child and her father to be professionally supervised. That time, being a period of 18 months, with a frequency of monthly and then fortnightly, shall be time during which the child and her father can re-establish their relationship in a protective and supportive environment, and the mother can adapt to the involvement of the child’s father in her life again, and support the development, for the child, of a meaningful relationship with her father.
[62] Betros & Betros [2017] FamCAFC 90 at [13].
I certify that the preceding one hundred and eighty (175) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 24 November 2021
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