Perrott and Carmain

[2016] FamCA 17

FAMILY COURT OF AUSTRALIA

PERROTT & CARMAIN [2016] FamCA 17

FAMILY LAW – CHILDREN – Where there were allegations about child abuse – Where the allegations were denied – Approach to be taken in the light to s 140 Evidence Act 1995 (Cth) and M & M and B & B – The concept of unacceptable risk in the orders to be imposed – Evidence on reopening and the effect of this on the decision – reasons for judgment provided in any event.

Family Law Act 1975 (Cth) s 60CC, s 65DA
Evidence Act 1995 (Cth) s 140

B & B (1988) FLC 91-978
Briginshaw v Briginshaw (1938) 60 CLR 336
M & M (1988) FLC 91-979

APPLICANT: Ms Perrott

RESPONDENT: Mr Carmain

INDEPENDENT CHILDREN’S LAWYER: Capon & Hubert

FILE NUMBER: CAC 387 of 2012

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATES: 5, 6, 7, 21, 22, 23 August, 16 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Tonkin

SOLICITOR FOR THE APPLICANT: Elringtons

COUNSEL FOR THE RESPONDENT: Ms J Haughton

SOLICITOR FOR THE RESPONDENT: Ray Swift Moutrage & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D Nimmo

Orders

IT IS ORDERED THAT:

1. The mother, Ms Perrott, have sole parental responsibility for Y (born … 2005) (“the child”).

2. The child live with her mother.

3. The child only spend time with her father in accordance with her wishes and until she attains the age of fourteen (14) years any such time will be supervised by a professional contact centre.

4. The child may contact her father at any reasonable time, and the mother will facilitate this if so requested by the child.

5. Pursuant to section 11 of the Australian Passports Act 2005 (Cth) the mother may obtain an Australian passport for the child without the consent of the child’s father and, to the extent required by the section, this Order permits the issue of an Australian passport to the child.

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

7. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

8. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

9. The matter be removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 387 of 2012

Ms Perrott

Applicant

And

Mr Carmain

Respondent

REASONS FOR JUDGMENT

1. At a time when I was completing my consideration of the evidence in this matter with a view to delivering judgment, because of the time that had elapsed between trial and the judgment, I offered the parties and the Independent Children’s Lawyer the opportunity to provide additional evidence by way of reopening if they chose to do so.  I had substantially written this judgment before that additional evidence was provided. 

2. It transpires from this additional evidence that as from about February 2015 the respondent father has not been seeing the child.  He unilaterally cancelled the supervision  arrangements at M Contact Centre and apparently expressed the wish that at some time in the future, the child might seek him out. 

3. The mother then sought orders that she have sole parental responsibility, that the child live with her and the father have no face-to-face time or telephone communication with the child.  She also sought an order under the Australian Passports Act – although if she had sole parental responsibility, such an order was in fact not necessary.

4. Notwithstanding, I considered it appropriate that I should nevertheless provide some reasons for judgment because of the complexity of the issues between the parties (until the father adopted his current position) and because, notwithstanding the somewhat extreme nature of his decision, it was possible that at some point in the future it may be relevant to the Court or to the parties to know what the resolution of the issues between them would have been as a result of the trial. 

Background

1. At the time of this judgment the father is almost thirty-three years of age and the mother almost thirty-two.  They began to live together in May 2004 and separated in June 2005.  During that period Y (“the child”), who was born in late 2005, was conceived.  The cause of the separation is disputed between the parties.  At this point the reason is probably not critical to these reasons.

2. The mother was reluctant for the father to even see the child in the early part of her life and the father (perhaps in frustration) left just after the child had been born and went to Victoria to work.  The mother says that the period was close to six months. 

3. When the child was born, the mother did not put the father’s name on the child’s birth certificate.  He saw this is a provocative act on her part.  She saw it as the outcome of the difficulty of obtaining his signature at the relevant time.  The mother asserts that subsequently she submitted papers to the father so that his name might be added but that he did not return them. 

4. In March, April or July 2006 (depending on which version of the facts is accepted) the father returned to Canberra from Victoria and began to see the child once a week at the Suburb J shops or at his house, in the presence of the mother.  It would appear that during this period the father was seeking reconciliation with the mother but the mother was unwilling to undertake this. 

5. The father began proceedings in what was then the Federal Magistrates Court in October 2006 and interim orders were made enabling the father to have some hours with the child on Saturdays and Sundays, for some time each Wednesday and provision was made for Christmas Day.  Hand-overs were to occur at M Contact Centre.  The parties were to use a communications book and both parties were to attend parenting courses at the contact centre.  The matter was then adjourned until March 2007. 

6. In the following month the parties undertook their intake interviews at the contact centre.  Negotiations began between the parties with the assistance of practitioners and a Family Dispute Resolution (FDR) conference occurred in March 2007.  At about this time, for some months the father saw the child for about three hours a week. 

7. In 2008 the parties attended a further FDR conference and reached an agreement for final orders. 

8. These orders provided (by consent) that the child live with her mother, that the parties have joint parental responsibility and that each of the parents attend a post-separation program.  Provision was made for the child to spend time with her father every fourth weekend from 9 am on Saturday until 3 pm on Sunday which in turn was to be extended in the following year to Friday after day care or preschool until 4 pm on Sunday.   On the fortnight in between the weekend periods referred to above, the child was to spend time with her father from 2 pm on Saturday until  3pm on Sunday.

9. It was also provided that she should spend time overnight with him every alternate Thursday from 4 pm.  Provision was made for Christmas Day and the child’s birthday. 

10. When the child turned four, telephone communication was to start twice a week and the parties agreed that they would review the arrangements in June 2010

    …with a view to extending the time [the child] has with the father.

11. Thereafter from 2009 until 1 December 2011 the child was spending alternate weekends Friday to Saturday and alternate Thursday nights with the father. 

12. Sometime during April 2009 at least the father noticed that the child was rubbing her genital area against the arm of the couch.  She was apparently also rubbing herself up against him in various places. 

13. On 5 August 2011 there was a problem about the time that the child was to spend with her father because she did not have her favourite toy.  That time was rescheduled for the following day and the time allocated went ahead on that day. 

14. The child went away with her father to Town T in October 2011 but had some telephone communication with her mother.  The extent and content of that telephone conversation are matters of dispute. 

15. On 1 December 2011 the mother told the father that the child was sick and that he could not spend time with her.  On 8 December 2011 the father asserts that the child informed him that “Christmas is cancelled”.  The mother was there in the background – a fact she confirmed at cross-examination. The father maintains that the child was speaking in effect, as the puppet of the mother.

16. On 10 December 2011 the father suggests that the mother told the police that the father could collect the child from the contact centre at 10:30 am – as he could not have her on Friday. 

17. On 15 December 2011 the mother contacted the contact centre and informed the workers there that the child was sick and did not want to go to her father’s.

18. On the following day, the mother gives evidence about the fact that the child complained that her “vagina” was itchy and that the father “flicks me and puts his finger up his nose and he laughs” and he does it “all the time”.  The mother gives evidence of being shocked at this disclosure and I accept that she both believed the comments made by the child and was concerned immediately to protect her.  The mother spoke to her sister, who in turn contacted the police and the child was referred to JIRT. 

19. On 18 December 2011 the mother says that the child said to her words to the effect of “he only does it sometimes probably since I was four.  He doesn’t do it anymore because he knows it is wrong.  He stopped last year in about April or August”. 

20. The Town X JIRT office did an interview with the child on 21 December 2011 and the report of that interview was in evidence before me.  On 23 December 2011 the mother made a statement to the police.

21. At the invitation of the police, the father attended X police station on 4 January 2012 where after the police had explained to him the nature of the allegations against him he was advised to seek legal advice and if he then wanted to make a statement to return.  The father did leave and did not give an interview to the police.  The circumstances in which this occurred are not agreed.  It seems likely that the father’s lawyer advised him not to give an interview to the police.  The father appears to indicate that it was his view that the police did not contact him again. 

22. The police decided that they would not prosecute the father and they informed the mother of this on 3 March 2012. 

23. The mother signed an affidavit some days later but made no mention of the fact that the police were no longer going to take criminal proceedings against the father.  That affidavit was in support of the proceedings that are currently before the Court commenced on 15 March 2012.  Notwithstanding all of those matters, orders were made by consent in the Federal Magistrates Court (as it then was) on 2 April 2012 that the child would continue to live with her mother principally but would have two hours’ time with her father each fortnight –  supervised at the contact centre. 

24. On 1 May 2012 the hearing that was scheduled to occur on 2 May 2012 (the following day) was vacated and further directions were given to enable the matter to proceed as a defended hearing in due course. 

25. In the meantime the mother took the child to CARHU but they were unable to offer either the child or her mother continuing support or possible treatment. 

26. The mother and the father attended upon Ms W, the Senior Family Consultant in Canberra, and the mother also saw Ms C, a psychologist, in June 2013.  Earlier in the year, in February, the child’s teacher told the mother that the child spends a lot of her time in fantasy land.  She suggested that the child was not engaging and suggested further that the mother should have the child’s hearing tested. 

27. The parties attended upon Dr S, a Single Expert Witness, appointed in accordance with some comprehensive Terms of Reference on 13 March 2013.  Dr S’s report was made available on 18 March 2013.  I will return to the content of the report and the recommendations made by Dr S in due course. 

28. The matter was transferred to the Family Court and came on for hearing before me on 6 August 2013, 7 August 2013, 23 August 2013 and finally on 16 September 2013 when submissions were taken from the parties and from the Independent Children’s Lawyer.

Introductory comments

1. The father asserted from time to time that the mother wanted to relocate, and that the allegations raised by the child were the product of the mother’s coaching of the child so that she and the mother could move away from Canberra and from the father. 

2. The mother, prior to the hearing and throughout the hearing, asserted firmly and unequivocally that she did not propose to move away from Canberra and I accept that is so.  Accordingly, this was not what has become known as a “relocation case”.

3. Neither is this a hearing to determine whether or not the father engaged in sexually abusing the child.  Under the Family Law Act 1975 (“the Act”) it is my obligation to make orders that are in the best interests of the child. 

4. I am obliged to make orders about where the child will live and who will have a part in parental responsibility for her.  The mother sought, and in effect continues to seek, that the child spend no time with her father. 

5. The father, for his part, until recently (apparently) sought orders which would enable him to have unsupervised time with the child on a graduated basis until the loving relationship that he believes used to exist between him and his daughter has been restored.  His recommendations about transition largely followed those recommended by the Single Expert, Dr S – but not completely.

6. In cases where there are allegations of child abuse, in my opinion, if it is possible for the Court to make a finding either that the abuse occurred or, alternatively, that it did not occur, the Court should make such a finding and then determine what orders might then be made.  However, such a finding is not determinant of all issues between the parties about the child. 

7. Any such finding must be made taking account of s 140 of the Evidence Act 1995 which in large measure incorporated into statute law the common law position identified in Briginshaw & Briginshaw[1].  In essence where a serious allegation is made (which of course would include such an allegation as this) the Court must not simply make a finding on the balance of probabilities as a purely mathematical exercise.  The more serious the allegation that is made the more the proof must be persuasive of the fact finder that the events alleged actually occurred.  This is part of the civil burden of proof – on the balance of probabilities – and is not to suggest that the standard is “beyond reasonable doubt”. 

   [1] (1938) 60 CLR 336.

8. There is no doubt that if a person is found to have engaged in acts sexual abuse in the past, it is reasonable to be concerned that the conduct may be repeated in the future.  However, the important enquiry into the best interests of the child necessitates the Court making a determination about the extent to which any orders it makes may impose an unacceptable risk on the child of further abuse.

Finding regarding abuse

1. I cannot find affirmatively that the father did abuse the child.

2. In her expert report, Dr S drew attention to several matters that would preclude such a finding.  Notably that the father “vehemently denied any wrong doing or sexually inappropriate behaviour with his daughter - and there is no evidence of a proclivity to such conduct in [the father’s] reported history or presentation.”[2]  Dr S commented that the father “did not report a history of hypersexuality, entrenched sexual deviancy, paedophilic or hebophilic interests or attitudes consistent with sexual abuse.”[3]

   [2] Report of Dr S dated 18 March 2013 [83].

   [3] Ibid [81].

3. She also suggested that the disclosure made by the child was more “specific” than would be expected, given her age and time since the alleged abuse occurred,[4] and that the language used was not inappropriate for the child’s age.[5] It was also noted that there was no significant change in the child’s relationship with the father after the alleged abuse.[6]

   [4] Ibid [160].

   [5] Ibid [173].

   [6] Ibid [160].

4. Further Dr S noted that, given the child’s ‘propensity to vivid and detailed fantasy, it is not impossible that, at least to some extent, [the child’s] story is a fabrication or embellishment.’[7]

   [7] Ibid.

5. Notwithstanding these factors, I also cannot find affirmatively that the father did not abuse the child.

6. The child’s interview with the police is disturbing and to some extent compelling.  The father who had not seen the recording of the interview before the trial, was visibly upset by it. The cause of his upset was not apparent and was not explained by him.

7. I am satisfied that the mother did not coach the child and was genuinely shocked by her daughter’s disclosures.

8. Even though the child’s disclosures were specific they were somewhat inconsistent.  This was seized upon by the father’s counsel as indicative that the allegations were a fantasy.

9. The child is (and was at the time she made the disclosures) a very young person and the sorts of inconsistencies in her disclosures which may cause doubt as to the credibility of an adult do not necessarily apply to her. While I may not be able to be persuaded that something happened to the requisite s 140 standard, I cannot equally be persuaded that something did not happen.

10. In coming to that conclusion I take account of the father’s presentation in his evidence before the court and as recorded by Dr S. I note his sworn denial.  I am not convinced as to his credibility on this issue.

11. In contrast to Dr S’s report, the child’s counsellor, reported that the combination of the child’s behaviour and disclosures were strong indicators of “some form of violation or sexualised exposure inappropriate to her age.”

12. In addition, despite the findings mentioned above, Dr S considered the father to pose a “low to moderate risk of sexually abusive behaviour.” She was however referring to a future risk and heavily qualifies her assessment.[8]

    [8] Ibid [167].

13. However the father accepts that the mother did not coach the child and in such circumstances my choices are

    a)That the child made up what it is that she has said on a number of occasions.

    b)It, or something like it, is true.

    c)Which is a variation on b) above, that some of what the child reports is fact and the rest is made up or embellished or perhaps a product of non-intentional tainting. 

14. No evidence has been lead suggesting that, if the child was abused, it was perpetrated by some person other than the father.

15. Noting and reiterating that this again is not the trial of the father for a criminal offence or an enquiry to determine whether abuse occurred, it is probably important at this primarily point to consider other matters which bear upon the determination of that issue as it occupied a considerable part of both the trial itself and also the submissions of counsel for each of the parties. 

16. In this matter I can indicate that I have taken into account the demeanour of the mother which, contrary to the submissions of Ms Haughton, I found to be convincing.  I also take account of the demeanour of the father and he also impressed me that he was now (with the benefit of hindsight) intent on mending some of his ways.

1. However, he has failed and fails to demonstrate insight for example, into his drinking. 

2. I have also looked to the language used by the child and in particular her use of the word “vagina” – and the father’s (proper) concession that he used that word with the child.

3. I take account of the child’s inconsistencies in her disclosures and of her reported demeanour in the presence of her father.  None of these things individually would establish a finding but my assessment of these and also Dr S’s qualified opinion[9] that

   … [the father] is considered [by her] to pose a Low to Low-Moderate risk of sexually abusive behaviour.

   [9] Ibid.

4. I note her reasons for arriving at that conclusion and accept them.  I also note her following comment that

   … any risk is likely to be related more to adult females than children.

5. I have taken all of these factors into account but in particular the fact that the only substantive evidence that any abuse occurred at all is in the statements made by the child.  It is possible that there is some corroboration that she was the subject of sexual abuse by reference to her masturbatory activities.  However, the Experts (Drs S and O) seemed to be agreed that while such activity may be apparent in children who have been the subject of sexual abuse, it is by no means confined to such children and at best the activity is equivocal. 

6. The inconsistencies in the language, the nature of the language and the fact that the child was reporting something that seemed to have happened quite a long time ago even for someone as young as she is, all suggests that it would be extremely difficult for a court (or a jury hearing the matter in a criminal proceeding) to be satisfied that the abuse occurred.

7. It was nevertheless urged on me by Ms Tonkin, on behalf of the mother, that even if I could not find that the abuse had occurred equally I could not be satisfied that it had not occurred.  I accept that submission and find accordingly. 

8. Although the child’s reports at interview to and with the police and to her statements to her mother would be far from being convincing if the evidence were given by an adult, in the context in which the statements were made the inconsistencies that the child expressed may be explicable.  Moreover, while I mentioned above that the child’s language was a factor which to some extent gave rise to concerns about the truth of her statement equally it must be said that the very adult nature of her terminology and the explicit description she gave could also properly be regarded as providing some form of credible support for the fact that abuse had occurred.

9. Moreover, I am satisfied that the mother did not coach the child to make her disclosures.  It seemed that a concession about that was made during the course of final submissions on behalf of the father.  The somewhat different submission that the mother had planted the seed in the child’s mind may possibly be true, but if it is I find that it was not done with any malicious intent on the part of the mother nor to further some project of hers to move from Town X. 

10. I am troubled in my decision making by the nature and extent of the fantasy world that the child from time to time inhabits.  Without exploring this in detail the description the child gave to Dr S including the unusual names of her imaginary companions and the comments otherwise made both to Ms O and to some extent her mother reinforced the proposition that what the child reports may not necessarily be fact. 

11. Given those findings, I cannot be satisfied to the requisite standard that the abuse had occurred and I cannot be satisfied to the requisite standard that abuse had not occurred. 

12. Given that conclusion, it is nevertheless imperative that I should ensure that any orders I make do not impose an unacceptable risk of further abuse (or abuse) on the child.

13. M & M[10] and B & B[11] in dealing with what is referred to as unacceptable risk provides as follows:

    In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare… 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.[12]

    [10] M & M (1988) FLC 91-979.

    [11] B & B (1988) FLC 91-978.

14. This “test” requires a balancing of risk that something might happen against the benefit to (or best interests of) the child.

15. Obviously if the father does not have any physical contact with the child there is no risk of any physical harm – but no (potentially countervailing) benefit to her of having a relationship with her father.

16. On the other hand, if the father has unsupervised time when he did in the past abuse the child, there is a risk he may do so again and if this were to occur, it is hard to see what if any countervailing benefit there might be.

17. It is however important to bear in mind that the admonition of their Honours in M & M was that the Court should not impose any orders (in essence about the time that the child would spend with her father) unless those orders did not impose an unacceptable risk of further abuse. 

18. As was suggested by counsel for the father, to some extent this is a synthesis of considerations including the circumstances of the child, the child’s age, the credibility of the allegations, other independent evidence about the proclivities or psychological profile or disposition of the father together with all the other relevant factors under s 60CC including, but not limited to, the desirability of the child’s having a proper relationship with her father. 

19. In this regard however there are other factors which bear upon the sort of orders that I might make in these proceedings and it is necessary that I should embark on a consideration of those matters and the sorts of orders that would logically arise from them before applying a final consideration of whether such orders would impose an unacceptable risk.

other factors

1. Under the Act s 65DA imposes on the Court an obligation to apply a presumption that the parents of a child should have equal shared parental responsibility of that child. That presumption may be rebutted. In this case now because of the decision of the father it is unnecessary further to consider this issue.

Best interests of the child

1. The Act defines in s 60CC the factors the Court must take into account in determining what is in the child’s best interests. Under the Act the matters to be taken into account in determining what is in the child’s best interests are divided into two categories: primary consideration; and additional considerations.

2. Within the primary considerations greater weight is to be given to consideration of s 60CC(2)(b)

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

3. This prescription fits well with the requirement that in child abuse cases the Court must not make orders which would impose an unacceptable risk of abuse on a child.  That broader consideration is still before me as I turn to other factors which would bear upon appropriate orders.

4. The other primary consideration is the benefit to the child in having a meaningful relationship with both of her parents.  Both parents are agreed that the child should live primarily with her mother. 

5. Dr S, in her report, gives consideration to this factor[13], among other places,

   It appears that [the child], however, has coped reasonably well with the disrupted contact with her father over the years.  She does, however, have an attachment to this man, as well as identifying Mr. [Carmain] as her father.  Therefore, although she might cope reasonably well with separation from him, this would probably have a negative impact on her identity formation. [emphasis added]

   [13]Report of Dr S dated 18 March 2013 [173].

6. For her part, the mother has now steadfastly set her face against the child’s spending time with her father.  This is partly because she believes possibly beyond the ability to concede otherwise that the child has been the subject of abuse from her father.  She has in this context a lioness’s ferocity in protecting her cub. 

7. Although suggestions were made that the child might, when for example she obtains fourteen years of age, be able in effect to protect herself, the mother would not accept that proposition easily saying that even when she (the mother) was nineteen years of age when she first went into her relationship with the father he was able, because of his personality, to overbear her and to in effect bend her to his will.  That analysis is of course denied by the father but given the shortness of the relationship and the father’s admissions about the nature of his conduct towards the mother there is some force in the mother’s proposition.  I am not prepared however to accept it on an unqualified basis and I will return to that consideration in due course when I come to make orders about what time the child might spend with her father and in what circumstances noting that the father no longer seeks such orders at least in any formal way. 

8. The other matters to be taken into account include the views expressed by the child.  The child expressed very strong views to the Single Expert.  She said that she does not want to see her father.  However, notwithstanding these views and the fact that they were to be given moderate weight[14] I agree with Dr S that

   … it is her emotional response that is prioritised over her views in the current assessment.

   [14] Ibid [173].

9. I should add that it is my view that her emotional response should be prioritised by me in the current assessment at least to the extent that when she grows older, if she wishes to re-establish her relationship with her father she should not be prevented from doing so as long as it is consistent with her safety. 

10. I have already expressed to some extent my assessment of the nature of the relationship of the child with each of her parents.  She appears also to have a good relationship with her maternal grandmother.  She appears to have some relationship with her paternal grandmother.  It does not appear from the evidence that there are any other persons who are particularly relevant to her wellbeing in the future.  That is not to say that they do not exist but rather that the evidence is not such that I can adequately take the relationship with such people into account. 

11. I am not satisfied that the father in this matter took opportunities to participate in decision making about the child.  His initial moving away for some months to Victoria while understandable at one level as the expression of his frustration, disappointment and possibly anger, does not negate the failure in responsibility that such a course of action represents.  His failure to pay child support is another example.  I accept also the careful analysis of his personality and his parenting abilities by Dr S and in particular her assessment that while he is capable of having a relationship with the child on a short term basis that his defects in personality and to some extent in character would need to be remedied before more substantial time with her might be successfully undertaken.  I am not convinced that the father will take the appropriate steps to rectify the problems identified by Dr S and sadly my observations of him accord with the conclusion reached

    [The father’s] responses … reflect someone who is not motivated for treatment and who is thus, happy with himself as he is and he does not see the need for change.[15] 

    [15] Ibid [178].

12. If the father carries out the recommendations and is able to produce evidence in due course to a Court that he is capable of a more substantial part in the child’s life then he may consider making an application to the Court. His abandonment of the supervised regime does not inspire hope. Notwithstanding the father’s belief that the mother has in a Svengalian way manipulated the child, I am satisfied that the mother has done what she considers to be best for the child. 

13. I regard the mother’s responses to the allegations of child abuse as being appropriate and restrained in the circumstances.  I accept the Single Expert’s assessment of the mother as having skills appropriate for the care and support both emotionally, intellectually and psychologically of the child. 

14. All of that having been said, I do not have confidence that the mother will necessarily adapt her protective attitude to one of pragmatism and realism as a result of this judgment and my orders.  I would hope that she will properly consider the relationship the child might enjoy with her father in the future and not impede the development of a proper relationship if the appropriate preconditions have been met. 

15. Little evidence was given during the course of the proceedings about how either of the parents proposed to meet the child’s intellectual needs and I have already dealt with how each of the parents has to some extent proposed to deal with her emotional needs. 

16. I share Dr S’s confidence that there is no doubt that the mother can adequately provide in all relevant respects for the child. 

17. There are no cultural or aboriginal matters that have been drawn to my attention which I should take into account. 

18. In this matter having taken account of the fact that I could not make a finding that child abuse did not occur and further taking into account the matters set out above relating to the child’s best interests, a proper consideration of all of these matters had led me to the conclusion that it would not pose an unacceptable risk to order the continuation of the existing arrangements at least in general terms for the time that the child would spend with her father. 

19. During the course of final submissions the Independent Children’s Lawyer was urging upon me a process which would in accordance with Dr S’s recommendations produce some form of report which would then be the source of the shaping of orders into the future. Those submissions must now necessarily be seen in the light of the father’s decision to abandon his quest to spend time with his daughter. I am not willing to consider that course in those terms. 

20. For the record, the recommendations made by Dr S were as follows:

    ·That [the child’s] residence remain with her mother,

    ·That [the mother] retain the primary responsibility for parenting decisions for [the child],

    ·That the current contact schedule between [the child] and her father remain and on a supervised basis for the time being,

    ·That [the father] engage in short-term intervention with a specialist clinician, perhaps over about six sessions, to cement a safety plan that documents the ways in which he will manage safe parenting and appropriate boundaries within the home.  This is not recommended as treatment per se but is a mechanism by which [the father] can be accountable for his understanding of safe parenting, which would also ideally give [the mother] some comfort, which will assist [the child] in being less anxious at spending time with her father.  A suitably trained accredited forensic clinician can be identified in [the father’s] local area through the Australian Psychological Society’s Referral Service ( Moreover, I would be able to recommend some clinicians local to Canberra if need be who could assist [the father] in this regard,

    ·That on completion of these sessions, a graduated transition plan be implemented whereby [the child] moves from supervised to unsupervised contact with [the father], firstly for short periods and in public areas, before being able to spend time with [the father] at his home for several hours at a time, progressing to overnight and ultimately weekend contact.  It is anticipated that this plan of transition may take a period of 12 to 18 months depending on [the child’s] progress,

    ·That after this transition is completed, [the father] to continues to have the same level of contact through school holidays, as well as sharing time with [the mother] on special occasions, such as birthdays, Christmases and Father’s Day,

    ·That [the father] abstain from consuming alcohol when in the company of [the child] or for 24 hours prior to having contact with [the child],

    ·That [the father] be allowed to attend school functions, concerts and the like with appropriate consultation and forewarning,

    ·That [the father] be encouraged to recognise his vulnerability under conditions of significant personal stress, when he should seek added support in caring for [the child], as well as likely gaining from engaging in psychological treatment to assist him in coping with these difficult situations, which will be quite destabilising for him. 

21. The recommendations of Dr S in their terms required at least one further report and further court proceedings to advance the programme. That is undesirable, particularly in the light of s 60CC(3)(l). These parties do not need further proceedings.

22. It seemed to me that once the child attained the age of fourteen years she should be able to determine what time she spent with her father in any event.

23. The choice of the age of fourteen years was not one on my part. It was a year or an age the subject of some evidence and cross-examination in the course of the proceedings.  

24. There is no doubt that as the child becomes older she is in a better position to understand if unwanted advances might be made to her.  Ordinarily, it might be reasonably assumed that the older the child the less potential opportunity there might be for predation by sexual abuse to occur.  Certainly, it is reasonable to assume that the older the child, the less likely it is that there would be any silence on the part of the child about any action threatened or undertaken.

25. I was conscious however in this matter that the mother having been faced with the prospect that as the child grew older she might be able to look after herself had responded by pointing to the fact that at age nineteen when she began her relationship with the father that she felt herself to be overborn by the father during the relatively brief period that they were together.  She reasoned from this that a teenaged Y might also be overborn by the father. 

26. This to some extent fails to take account of the fact that when the mother was living with the father as she pointed out in her affidavits she really had no one to turn to.  In these circumstances the child would have the mother to turn to and undoubtedly would do so.  In the end the determination of what constitutes an unacceptable risk involves a balancing of the whole sequence of items and in my opinion if I had been called upon to make contested orders in this matter the orders that I have outlined above would have balanced the questions of risk and benefit. 

27. However, the father’s decision not to pursue further time with the child effectively removes any benefit that may exist from making orders about the time that she spends with him. 

28. However, it may well be that at some point in the future the child will want to resume some form of relationship with her father or to communicate with him.  As she grows older she should be able to do this and allowing for the father’s undertaking such steps as may be necessary to enable him to be an effective father when he is with the child the possibility of her having a relationship with him in the future should not be entirely extinguished.

29. Accordingly while the mother sought in her orders that the child not have any time or any other communication with her father, I have formed the view that it is necessary to at least leave the door open for the child in the future.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 22 January 2016.

Associate: 

Date:  22 January 2016

[11] M & M (1988) Fam LR 606, 611