Rasul & Momin
[2022] FedCFamC1F 325
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rasul & Momin [2022] FedCFamC1F 325
File number(s): PAC 3390 of 2021 Judgment of: HANNAM J Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – Children – Interim parenting – where the mother seeks orders that the children spend no time with the father – where the ICL seeks orders that the children spend supervised time with the father – where the father seeks orders that the children spend graduating time with him increasing to alternate weekends – where the mother contends that the father may sexually abuse the children – Where the mother contends that the children may be exposed to family violence if orders are made as the father seeks – where in April 2020 the father was charged with two counts of sexually touching the parties’ older child who is severely disabled – where the father has not spent any time with the children since this time – where it was held that there was no prima facie case against the father and the charges were dismissed in the Local Court with costs – where the mother deposes to controlling behaviour by the father and numerous occasions of physical violence – where one occasion of violence resulted in the father being charged and convicted of assault occasioning actual bodily harm – where there is no need for an order for no time on an interim basis – where the need for supervision arises from a number of factors – where the ICL’s proposal most appropriately fosters the children’s relationship with both parents while protecting them from harm – where there may be practical difficulty and expense associated with the ICL’s proposal – where orders made which are consistent with the ICL’s proposal with some adjustment to account for practical difficulties Legislation: Family Law Act 1975 (Cth) ss 60CC & 65D Cases cited: Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 129 Date of hearing: 23 November 2021 and 24 February 2022 Place: Parramatta Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Walter & Elliott Family Lawyers Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: Lawbridge Lawyers & Consultants Counsel for the Independent Children's Lawyer: Mr Guterres and Mr Sperling Solicitor for the Independent Children's Lawyer: Legal Aid NSW Penrith ORDERS
PAC 3390 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RASUL
Applicant
AND: MS MOMIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT PENDING FURTHER ORDER:
1.X born in 2015 and Y born in 2017 (“the children”) shall live with the mother.
2.The children shall spend time with the father under the supervision of a contact centre or contact/supervision service as may be agreed to between the parties in writing and failing agreement as nominated by the Independent Children’s Lawyer in writing (“the contact service”), and to facilitate such time each party must;
(a)Contact the contact service within seven (7) days of the making of these orders to arrange an appointment for assessment for suitability for supervised contact;
(b)Attend the assessment;
(c)Comply with any appointment made by the contact service for supervised contact;
(d)Comply with all reasonable rules of the contact service;
(e)Comply with all reasonable requests or directions of the staff of the contact service.
4.If the parties are accepted by the contact service following the intake procedure then:
(a)The father is to spend time with the children for not less than two (2) hours each fortnight at such times and on such days, as the contact service can facilitate;
(b)The children’s time with the father is to be implemented by the mother and/or X’s carer delivering the children to the contact service at the start of the children’s time with the father, and collecting the children from the same place at the end of the children’s time.
(c)The parties shall equally contribute to the fees nominated by the contact service for the provision of its service.
5.If the contact service, following its intake procedure, is only able or willing to facilitate Y’s time with the father in accordance with these orders, such time is to commence as soon as practicable for Y alone.
6.If the contact service, following its intake procedure, is unable or unwilling to provide supervision as set out in these orders, then the Independent Children’s Lawyer has liberty to list a further court event before me by direct arrangement with my chambers.
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 Rasul & Momin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties (“the mother” and “the father”) cannot agree about the future parenting arrangements for their two daughters, aged six and four (“the children”) following the breakdown of their nine year marriage.
Shortly after the end of the parties’ relationship, the father was arrested and charged with two counts of intentionally sexually touching the parties’ older child (“the older child”), who is severely disabled. These charges were dismissed in February 2021 by a Local Court, but the father has spent no time with the children since being arrested and charged in April 2020.
The father commenced proceedings in June 2021 seeking a variety of orders including that the children live with the mother and spend time with him on a graduating basis commencing with daytime each Saturday and increasing to alternate weekends after a period of four months. The mother opposes the father’s application for interim orders and seeks that the children spend no time with him on an interim basis citing various risks that she contends he poses to the children.
The Independent Children’s Lawyer (“ICL”) does not agree with either of the parties’ proposals and instead contends that it is in the children’s best interests to spend time with the father at a contact centre or supervised by a professional supervision agency.
The question for me to determine is which of the proposals is proper having regard to the best interests of the children as the paramount consideration.
BACKGROUND
The mother and father, who are aged 35 and 45 respectively, were both born in a South Asian country and met in a different overseas country in 2010. They were subsequently married in 2011 in the country of their birth where they resided together for a month following their wedding, before the father returned to Australia where he had been previously living.
In October 2012 the mother’s visa application was approved and she joined the father and the paternal grandparents in Australia. At this time the parties lived with the paternal grandparents in a regional city.
The mother alleges that she was subjected to family violence at the hands of the father throughout the marriage. She says that throughout the relationship she was responsible for all household duties and also deposes to incidents such as in November 2013 when the father assaulted her when she complained about this matter.
In 2014 the parties moved to Sydney where the father had commenced employment.
It is contended by the mother that following the parties’ relocation it was still expected that she and the father spend each weekend with the paternal grandparents and that she continue to be required to complete household duties while at the paternal grandparent’s home. She deposes to another occasion on which she was assaulted for complaining about this expectation. This is a matter to which I will return when considering matters of risk for the children.
Both parties allege that throughout the relationship the other party was a perpetrator of emotional abuse.
There is no dispute between the parties that on 12 May 2015 a violent incident took place between them at their home.
The father was charged with assault occasioning actual bodily harm in relation to this incident and subsequently pleaded guilty to that charge. He was convicted and placed on a 12 month good behaviour bond and a 12 month Apprehended Domestic Violence Order (“ADVO”) was made against him for the protection of the mother.
While the mother was in hospital as a result of the May 2015 assault, she was informed by doctors that she was one month pregnant with the parties’ older child.
In 2015 the older child was born prematurely and as a result suffered from a number of medical issues. The older child was not discharged from hospital until 2016. Shortly after her birth she was diagnosed with Down Syndrome and at the age of eight months old was also diagnosed with epilepsy.
In October 2017 the father purchased a home with the paternal grandmother which became the family home for the parties and the older child. The mother also operated a business from this home.
In 2017 the parties’ second child (“the younger child”) was born.
It appears to be common ground between the parties that there were ongoing arguments between them in which each alleges that the other was the aggressor. The mother also alleges that the father was physically violent to her on other occasions which is a matter to which I will return.
Sometime in October or November 2019 the father became unemployed and he has not worked since this time.
In late 2019 the older child was also diagnosed with Autism Spectrum Level 3 and Profound Global Development Delay.
There was a further incident between the parties on 11 March 2020 which resulted in an ADVO being made against each party for the protection of the other on the basis of allegations of family violence made against one another. The mother subsequently consented without making admissions to a final ADVO being made for the protection of the father. The father challenged the application for an ADVO against him for the mother’s protection and a hearing in relation to that application was pending at the time of the application for interim orders, though an interim ADVO was in place at the time.
At around the time of the 11 March 2020 incident, the mother found messages on the father’s phone to sex workers and intimate text-messages between him and his former girlfriend. This issue, together with claims made by the father concerning the mother’s alleged misuse of the oldest child’s NDIS funding, caused the relationship between the parties to break down. The parties separated but both remained living in the former family home. In this context, the mother deposes that she began to become concerned that the father was sexually abusing the older child.
At the time of separation, carers funded through the NDIS were unable to provide services which had traditionally assisted both of the parents with the care of the older child in the family home due to the restrictions then in place associated with the COVID-19 pandemic.
The mother deposes that on 14 April 2020, while she was bathing the children, the father informed her that he wanted to dry and dress the older child. The mother refused and the father contacted police who attended at the home. The father made complaint that the mother had breached conditions of her ADVO by refusing to allow him to assist in the care of the child. Police records produced on subpoena indicate that the mother told police she had noticed that on occasion the father locked the door of the bedroom while he dried and dressed the older child. Records indicate that police informed the father that this was not a breach of the ADVO, and accordingly took no action.
On the following day, 15 April 2020, the mother concealed her phone in the older child’s bedroom where the child was taken to be dressed following her bath and recorded the interactions between the father and the older child (“the first video”). The mother deposes that she did so as her suspicions were aroused about the father because he had always ensured that the door was shut when he was dressing the child. The mother’s recording captured the father applying cream to the child’s naked body, which the mother asserts she found disturbing.
The mother deposes that she took the first video to her general practitioner for advice and asserts that the general practitioner advised her she should make another recording as the first video was not clear enough.
On 20 April 2020 the mother made a second video of the father’s interaction with the older child when dressing her after a bath (“the second video”). The mother deposes that this video showed the father “proceeding to rub his hands over [the older child’s] body, including her private parts, front and back and everywhere in between.” The mother asserts she was immediately repulsed and contacted a friend who advised her to contact police immediately. The mother met police at her friend’s home as the father had in the meantime reported the mother and children missing as he had awoken from a nap to find they were not home and the mother had not been answering her phone. While at the police station the father was charged with two counts of aggravated sexual assault of a child under 10. Subsequently, those charges were amended to two counts of intentionally sexually touching a child under 10.
In addition to being charged, the reports in relation to the events recorded on the first and second video also gave rise to an investigation by the JCPRP[1]. Subsequently, the allegations were substantiated by the relevant decision maker at the Department of Communities and Justice (“the Department”).
[1] The Joint Child Protection Response Team is made up of officers from police and the Departments of Communities and Justice and Health and investigates allegations of serious child abuse.
The father was acquitted on 19 February 2021 after a hearing in the Local Court on the basis that the prosecution had not established a prima facie case for the offences and the application for ADVO for the protection of the older child was also dismissed. The prosecution were also ordered to pay the father’s costs in relation to the hearing of the charges.
The father commenced parenting and property proceedings in June 2021 and the proceedings were transferred to the Magellan Program[2] in September 2021.
[2] The Magellan program is a fast–track case management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
Property proceedings between the parties were finalised on 1 October 2021 when final orders were made with their consent.
THE LAW AND DISCUSSION
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[3].
[3] (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346 (‘Goode’).
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s 65D(1), subject to certain sections which are not relevant for this application, a court may make such parenting order as it thinks proper.
There is a long line of Full Court authority to the effect that although when considering interim orders the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts, the Court may, and in some circumstances must, have some regard to the matters in dispute.[4]
[4] See for example SS & AH [2010] FamCAFC 13 at [100], Deiter & Deiter [2011] FamCAFC 82 (‘Deiter’), George & George [2013] FamCAFC 182.
The approach to be taken by a court in relation to interim orders where the contested facts relate to an assessment of risk was described in Deiter[5] as follows:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[5] Deiter at [61].
In these interim proceedings there are two main domains of risk alleged to be posed by the father. First, there are the alleged risks to the children associated with their exposure to family violence and the impact upon the mother of family violence. Second, the mother contends that there is a risk that the children may be sexually abused which she submits arises due to the father’s past actions. It is her contention that the risk posed by the father arising from each of these circumstances is so great that it cannot be mitigated by any means including supervision of any time the children are to spend with him.
The father does not dispute that there has been one occasion in May 2015 which resulted in him being charged and convicted for assault but he argues that this matter does not give rise to unacceptable risk of harm in relation to the children. He also denies having harmed the children in any manner, including in particular the alleged sexual abuse of the older child in April 2020. It is his case that there is no need to protect the children as proposed by the mother by denying their contact with him altogether or by the imposition of supervision upon his time as proposed by the ICL.
The ICL contends, as I understand it, that while an assessment of the risk said to be posed by the father arising from sexual abuse does not require that the children not spend any time with the father for their protection, the dynamic and relationship between the parties and risk of the children’s exposure to family violence is such that supervision of their time with the father is required to mitigate such a risk especially given the particular vulnerabilities of the older child.
Family violence
It is the mother’s case that the father has been the perpetrator of family violence against her throughout the relationship and that there is an unacceptable risk that the children will be exposed to family violence in the future if orders were made as sought by the father. It was also contended on the mother’s behalf in the course of oral submissions that her parenting capacity would be significantly compromised arising from her fears if the children were to spend unsupervised time with the father (though it was later conceded that there was no evidence in relation to this matter).
The ICL also attaches particular weight to the risk posed to the children by the father as the perpetrator of family violence in these proceedings.
In addition to alleging controlling behaviour by the father, the mother also sets out in her affidavit a number of examples of physical assaults. The first occasion deposed to is in November 2013 when she alleges that the father pushed her hard into a wooden bedframe when she made complaint that she was struggling with completing household duties for the paternal family. The mother explains in her affidavit that she did not report this incident to police as the paternal family threatened her with deportation or gaol if she made such a complaint. The father does not refer to this incident in his affidavit.
The mother next deposes to an incident after she and the father moved to Sydney in 2014. On this occasion the mother alleges that she made complaints about being required to visit the paternal grandparents each weekend and that in response the father punched her in the back. The mother again did not report this incident to police. The father’s affidavit is silent as to this incident also.
Although there is no dispute between the parties that the father assaulted the mother in May 2015, there appears to be a dispute between them about what occurred on that occasion. According to the father’s version of events in his affidavit, on this occasion he and the mother were arguing as she was denigrating him about his physical appearance, positioning her face very close to his face. The father deposes that he “pushed her away and she then pretended to faint”. The father deposes to calling an ambulance and to police attending, and claims that there were no physical injuries when the mother was taken to hospital. The father deposes to pleading guilty in relation to the offence “to avoid a potential gaol term”.
According to the mother’s affidavit, on about 12 May 2014 (which in the context must be a reference to 2015), the father became angry with her as a result of difficulties between the parties associated with their sexual life. She says he “began to strangle” her “placing his hands around my neck” before letting go. The mother had difficulties breathing and deposes to being taken by ambulance to a local hospital where she stayed for three days.
Police records produced on subpoena indicate that following an argument between them the father “grabbed [the mother] around the neck with both hands and applied pressure for 2 to 3 seconds”. Those records further indicate that the father told police “I lost it and put my hands around her neck”.
At the time this interim application was first heard in November 2021 the Court had only been provided with competing versions by the parties of the incident which led to the father’s conviction. However, the proceedings were reopened in February 2022 and further documents were admitted into evidence including the file from the Local Court at which the father was convicted. Records within that file include the statement of facts upon which the father was sentenced which are consistent with the police records and with the mother’s account.
The mother next deposes that in September 2018 an argument took place between the parties in the presence of the children where the father denigrated and physically struck her, causing the children to scream.
The next incident according to the mother’s affidavit occurred in February 2020 when she deposes that the father hit her while the family were travelling together in a car, after she informed the father that she did not wish to spend the weekend with the paternal grandparents. The mother annexes to her affidavit photographs of scratch marks that she says were occasioned in this assault. The mother deposes that she asked the father to let her out of the car but he refused and after she informed him she was going to report the incident to police he took her phone which he kept for several hours until she promised not to contact police.
The mother deposes that the following morning, while staying with the paternal grandparents she was subjected to 40 minutes of verbal abuse from the paternal grandfather during which he screamed at her and threatened to kill her and cut her into pieces.
In his affidavit, the father does not address any of the specific instances of family violence alleged by the mother other than the incident in May 2015 and an incident on 11 March 2020. According to the father, on this occasion he and the mother became involved in an argument about the use of the older child’s NDIS funds, which the father alleges were misused by the mother, and he confronted her in relation to this matter in the presence of one of the older child’s carers. According to his affidavit, the mother struck him in the side of his face with her handbag and spat on him. He felt dizzy and traumatised and contacted police.
In her affidavit, the mother deposes to the father yelling at her in the presence of the older child and the carer and that on the advice of a teacher, she reported the father’s conduct to a social worker at a local hospital. The mother deposes that when she returned to the home at around 9pm, she found that the father had locked her out and that she was only able to gain access to the house by contacting police. The mother denied hitting the father. The police sought an ADVO for the protection of each of the parties against the other as a result of this incident.
Submissions made on behalf of the mother were to the effect that it is more likely that the version of events deposed to by the mother in relation to family violence will be accepted by a trial judge at final hearing for the following reasons. First, the mother sets out a history of numerous events of family violence throughout the relationship including an explanation as to why she did not report the incidents to police at the time whereas the father’s affidavit is silent in relation to all alleged incidents of family violence other than the incident in May 2015 which led to the father’s conviction and the incident on 11 March 2020.
It is contended on behalf of the mother that the mother’s affidavit evidence concerning the May 2015 incident is consistent with police records while the father’s evidence that he did no more than push the mother away on this occasion is highly unlikely to have supported a conviction for a charge of assault occasioning actual bodily harm. Moreover, it is inconsistent with the father’s admissions to police that he “lost it and put my arms around her neck” which is more consistent with the mother’s version of events. Further, there is no dispute between the parties that an ambulance was called at the time and the mother hospitalised which appears to be more consistent with the mother’s version than the father’s. It is submitted on behalf of the mother that it is more likely that a court would find that the father’s conduct on this occasion amounted to a serious act of family violence, being an attempted strangulation rather than a push, as he now asserts.
The mother’s counsel also relies upon reports about the father’s aggression which she contends is likely to be accepted by a court as reliable and independent, apparently being made by a mandatory reporter. It is recorded in the Magellan Report[6] that in January 2016 (at a time when the premature older child remained in hospital) the father is reported as having been “yelling in the hospital ward” and that the mother and staff tried to diffuse the situation but that the father remained reportedly heightened. A second report in the same month was to the effect that the mother had no family supports, no access to money, transport or living arrangements and was frightened for herself and the older child.
[6] A Magellan Report sets out the involvement of the Department with the family.
It is also the mother’s case that the father poses a risk as an alleged perpetrator of family violence against the children themselves. It is her case that the father has handled the children “roughly” in the past which she contends amounts to perpetrating family violence against them. However, when this issue was the subject of interchange between counsel and the Court it became apparent that the only allegation of such rough handling arises from the alleged incident of sexual abuse of the older child. In summary, it is the mother’s case that the father’s family violence towards her in the past combined with his conduct in April 2020 which amounts also to rough handling of the older child, gives rise to a risk that the father may physically abuse the children in the future.
At hearing, the father’s counsel had little to say about the allegations of family violence and did not address the likelihood of the Court accepting one party’s version of events over the other in this regard. Written submissions received after the February 2022 resumed hearing in relation to the issue of family violence focused on the May 2015 incident as the court file had by that stage become available. While the tenor of submissions made on behalf of the father is to the effect that little weight should be attached to this incident as it was isolated and occurred some years ago, it does not appear to be disputed by the father that the facts upon which he were sentenced were correct (which are along the lines deposed to by the mother) rather than maintaining the accuracy of his claim that he only pushed the mother on this occasion. For this reason and given his silence as to most of the other acts of alleged violence (from which it may be inferred that he does not challenge the mother’s evidence), I consider it more likely that the mother’s evidence concerning a pattern of family violence perpetrated by the father to which the children were exposed on some occasions is likely to be accepted by a court at final hearing. I do not consider that there is sufficient evidence from which it will be found that the father has perpetrated violence against the children.
The sexual abuse allegations
It is the mother’s contention that notwithstanding the father’s acquittal with respect to the sexual abuse charges, his actions captured in the two videos gives rise to an unacceptable risk of sexual abuse. In relation to this matter, the mother relies in particular upon the two assessments of complaints about the father’s actions undertaken by Departmental officers including the second assessment in September 2021 following the father’s acquittal. In the course of that re-assessment the video recordings were apparently “reviewed” by a JCPRP case worker who assessed that the father’s actions in the footage were “inconsistent with providing personal care”.
It is the father’s case in relation to any alleged risk of harm arising from sexual abuse that his conduct on 15 and 20 April 2020 has been filmed, thoroughly investigated, subject to a two-day hearing and subject to very important findings of the magistrate who was unable to be satisfied of a prima facie case of any wrongdoing. The father contends that on this basis there is no evidence upon which a court in family law proceedings could find that he subjected the older child to any form of abuse including sexual abuse and no risk of harm of this nature arises. He contends that at this interim stage there is no risk which requires that the children spend no time with him or for such time to be supervised.
The mother’s evidence in relation to her concerns about sexual abuse is that for an unspecified period (inferentially prior to April 2020) the father “would take [the older child] after her bath into her bedroom and close the door to dry, massage and dress her”. The mother deposes that this was concerning because the normal routine after the child’s bath was to dry the child and to put a nappy on her before applying or massaging cream into the child’s joints as directed by the physiotherapist. In particular, she deposes that the cream was “not to be massaged into any private areas” which she appears to have suspected the father was doing.
In relation to the first alleged incident of sexual abuse, the mother deposes that on 14 April 2020 she was bathing the child and the father came into the bathroom and said that he was going to bathe, massage and dress the child which she did not want the father to do. She deposes that the father took the screaming child into the bedroom and shut the door. After dressing the child the father went to the police to complain that the mother had prevented him from touching the child. As indicated, the police declined to intervene in the matter. The mother deposes to becoming very concerned about the father’s reasons for closing the door when drying and dressing the child but claims to have been unable to confront him about her concerns for fear that a violent argument would ensue.
The mother then deposes that on 15 April 2020 she concealed her phone in the older child’s bedroom to find out what was happening behind the closed door. She deposes to discovering that the father “was massaging [the older child] while she was completely nude and did so in a disturbing way”. The mother took the video on which the father’s actions were recorded to her doctor for advice and claims that the doctor recommended that she should take another video because the first was not clear.
The mother then deposes that on 20 April 2020 she covertly recorded the father’s actions in a similar way. She deposes to being shocked when she saw the video as it clearly showed the father doing following:
…roughly handling my daughter [named], throwing her onto the bed and then proceeding to run his hands over her body, including her private parts, front and back and everywhere in-between. He then turned her over and did it all again. His hands entered areas of total privacy that they never should have entered. It was unnatural touching by a father to his child and was even more disturbing because [the older child] cannot speak or push someone away to stop their behaviour.
According to the mother’s affidavit she felt repulsed by what she had seen and raised her concern immediately by telephoning a friend who advised her to contact police immediately. The mother says that when she showed a detective the videos, the detective was also “repulsed” by the images and informed her that the father would be arrested without bail for sexual assault.
The mother does not depose in her affidavit to editing both of the video recordings before providing them to police or that the unedited versions were recovered from her phone by police using a particular application, though both these matters were not in dispute at the interim hearing.
There is also no dispute that the father was charged on the same day that the mother reported the incidents to police and that he was refused bail initially and remained in custody for a few days.
According to the father’s affidavit, the two covert recordings taken by the mother of his actions on 15 and 20 April 2020 depict him applying a particular named cream on the child after her bath. It is his case that there is nothing untoward about these actions and that as the child is doubly incontinent the application of this cream to the child’s anus and genitals is a necessary requirement of her care and forms part of the child’s NDIS plan.
It is the father’s case that an assessment of the strength and reliability of the evidence in support of the mother’s allegations can be gleaned from the transcript of his criminal proceedings. The same evidence was relied upon in those proceedings as in this application. In particular, the father relies upon the following matters in relation to that evidence:
·It became apparent in the course of the Local Court criminal proceedings that there were two versions of each of the video recordings in existence. First, there was an original unedited version of the two recordings made on 15 and 20 April 2020 which were about 12 minutes and about eight minutes in length respectively. These unedited versions of the first and second video recovered from the mother’s phone were tendered in the Local Court proceedings and viewed by the magistrate. Subsequently, for the purposes of the application under consideration the father’s lawyer was provided with two abridged or edited versions of the two video recordings of about three minutes each.
·The mother lied to police when she claimed when first reporting her concern about the father’s conduct that he had taken the child into the bedroom and locked the door. There is no dispute and it was conceded in the criminal proceedings, that there was no lock on the door and on one of the occasions of alleged abuse, the mother is seen in the video recording to leave the child and father in the room and close the door behind her.
·The mother’s evidence that she took the first video to her GP who told her to take another video is unsupported by the GP’s records produced on subpoena at the criminal hearing and in these proceedings.
·The magistrate who viewed the unedited versions of the two recordings in the criminal proceedings said when dismissing the charges that the video showed the father engaging in almost the same behaviour towards the child on each occasion. In particular, the magistrate stated that “the [father] is seen to be using his hands to rub or massage the child in both the anal and vaginal area” which the magistrate identified as “an act which may in some circumstances be considered to be sexual touching”. The magistrate went on to say that he saw in the video the application of the cream:
over every inch of [the older child]’s body on both occasions with a degree of focus on the task generally to each part of her body and without any particular attention given to the child’s anal or vaginal area or using any action that was different when applying the cream to all parts of her body.
·In defending the criminal charges, the father adduced medical evidence to the effect that the application of the particular cream to the vaginal and anal areas of a dually incontinent child was absolutely required and that it would be highly unusual for that not to occur. This evidence given by a paediatric specialist whose report was also relied upon in these proceedings was accepted by the magistrate in the criminal proceedings.
·When considering the prosecution evidence at its highest, the magistrate found that there was nothing depicted in the videos that a reasonable person would consider to be sexual touching in the context of the case. This included the unchallenged medical evidence that not applying cream to this particular child’s vaginal and anal area having regard to her disabilities would be highly unusual. Accordingly, the magistrate found no prima facie case in relation to each charge.
·When dealing with the father’s application that the prosecution pays his costs (which was successful), the magistrate was satisfied that questions arose from the outset about the mother’s motivation to make the allegations. She provided police with an edited version of her videos and lied about the circumstances in which she discovered the text messages between the father and a new partner at the time which gave rise to the breakdown of the parties’ relationship. The magistrate also raised other concerns about the veracity of the mother’s evidence.
It is also submitted on behalf of the father that the mother has been untruthful in her affidavit filed in these proceedings in two respects. First, the mother deposes that the cream to be applied after the child’s bath was “not to be massaged into any private areas”. This is inconsistent with the expert evidence to the effect that the application of the cream is absolutely required for a dually incontinent child and it would be highly unusual for that not to occur. Second, the mother continues to depose that the father ensured that the door was closed when he dried and dressed the child whereas there is no dispute that on at least 20 April 2020 it was the mother who left the room and closed the door herself.
In addition to matters arising from the Local Court criminal proceedings that the father contends are of significance, and untruthful matters in the mother’s affidavit, the father’s counsel also highlighted in the course of oral submissions various inconsistencies in the mother’s version of events in her interview with police on 22 April 2020 (part of Exhibit 4) and in her affidavit in these proceedings. For example, when asked in that interview about the child’s nappy rash the mother told the police that both she and the father “do massage” and that she had instructed the father how to apply the cream. Further, she told police that the father’s actions captured on the videos that caused her alarm were that he was “checking my daughter’s bum” as opposed to digital penetration which she did not allege at the time. When asked what it was that caused the mother to install the camera on the first occasion, she reported “because when I see all the dirty things from my husband’s mobile, then I have strong doubt he’s enjoying massage my daughter” (sic).
The position of the ICL in relation to the evidence said to ground the sexual abuse allegation is somewhat unclear. Initially it was contended by the ICL’s counsel that some weight should be attached to the view of Departmental officers who assessed that the father poses a risk of harm arising from sexual abuse on the basis of his conduct captured in the two videos. It was not submitted however that the Court should assess that the father poses an unacceptable risk of harm to the children on this basis. It was generally the approach of the ICL in relation to the risk of sexual abuse that the Court should take a particularly cautious approach.
The assessment of the relevant officers at the Department is contained in the Magellan Report dated 24 September 2021. It is recorded in this report that the assessment of the JCPRP in April 2020 was that the allegation of (actual) sexual abuse (against the older child) was substantiated as “there is clear evidence of sexual abuse, including video evidence, resulting in criminal charges”. The Department also substantiated a significant risk of sexual abuse in relation to both children on the same basis.
Although it is also apparent from the Magellan Report that some of the same incorrect information which grounded the police charge was also relied upon by the Department (such as that the father locked the door during these incidents), it is also clear that the most weighty evidence in relation to the two alleged incidents is the content of each of the video recordings.
However, the actions of the father reported in the Magellan Report to be shown on the video are entirely inconsistent with his actions as described by the magistrate who viewed both the edited and unedited versions of the two video recordings. I have some concerns that the maker of the Departmental record referred to in the Magellan Report, describing the behaviour of the father “shown” on the video recordings, may not have viewed either or both recordings of the video records him or herself but rather relied upon information given by others about the contents of the video recordings.
In particular, it is noted in the Magellan Report that in the second video the father is seen to place the older child on her back, that he “grabbed both sides of her bottom and pulled it apart looking into her vagina” and that he “then places his fingers on the outside of her vagina and pushes his fingers into her vagina”. In my view, it is inconceivable that the magistrate dismissed the two charges against the father on the basis that there was insufficient evidence at a prima facie stage if such actions are recorded on the video(s). Moreover, such actions would also sustain the more serious charge of sexual abuse which had been amended to the less serious charge of sexual touching prior to the hearing. Accordingly, this casts significant doubt on the accuracy of this record upon which the substantiation of the complaint was largely based.
After the criminal charges were dismissed in February 2021, a further risk of serious harm report was received by the Department. Subsequently, in September 2021 it is recorded that a caseworker at the local office of the Department carried out a further risk assessment. In relation to that further risk assessment, the following is recorded:
The video recordings were reviewed by the JCPR caseworker. The actions of [the father] towards [the older child] in the footage were assessed to be inconsistent with providing personal care.
Once again it is unclear whether the JCPRP caseworker who made this assessment viewed either or both the edited or unedited versions of the video footage. It is also unclear whether the JCPRP caseworker had regard to the findings of the magistrate as to the insufficiency of the evidence to support a prima facie case or to the expert evidence concerning the appropriateness of the father’s actions in applying cream to the child. The qualifications of the caseworker are also unknown. In any event, although in the course of the second investigation in September 2021 it is recorded that the video recordings were “reviewed”, there is no clear description of the father’s actions that are said to lead to the conclusion that those actions are “inconsistent with providing personal care”.
The report also indicates that in the course of this investigation the caseworkers and JCPRP team were unsuccessful in their attempts to make contact with the father and ultimately made their assessment without interviewing him.
In the course of oral submissions, it appeared that counsel for the ICL was reluctant to concede that the magistrate’s description of the father benignly applying moisturising cream to a child’s body is inconsistent with the reports of the April 2020 Departmental investigation that the father was seen to push his fingers into the child’s vagina. I am satisfied that these descriptions are inconsistent with each other.
In these circumstances, it is submitted on behalf of the father that unless I view the videos myself (noting that I was only provided with an electronic link to the edited versions), I should rely upon the magistrate’s descriptions of the father’s actions depicted in the video. It is also submitted that no weight can be attached to the description of the father’s actions on the video contained in the Magellan Report when it is not clear whether either the edited or unedited version of the videos were actually viewed by the person at the Department (whose identity is unknown) who made the record as to that matter.
Discussion
I accept the submissions advanced on behalf of the father in relation to the weight that should be attached to the findings of the magistrate as opposed to the assessment of a Departmental officer about the father’s actions captured on the two videos for the following reasons.
First, the magistrate viewed both the edited and unedited versions of each of the video recordings and gave a detailed description of the father’s actions, while it is not clear that any person from the Department actually viewed either or both of the edited and unedited video recordings. The only Departmental record of the father’s actions said to have been captured in one or both of the videos is entirely inconsistent with the father’s actions as described by the magistrate. Further, had the father been shown to engage in actions such as pushing his fingers into the child’s vagina, it is highly unlikely that the magistrate would have dismissed the criminal proceedings on the basis that the prosecution did not establish a prima facie case.
In assessing how the father’s actions shown on the two videos are likely to be assessed in these proceedings, I also attach weight to other findings of the magistrate who it is to be remembered was considering the prosecution evidence at its highest when it was determined that there was no prima facie case in relation to each charge. It is apparent from the magistrate’s reasons that the actions of the father may, in certain circumstances, be considered to be sexual touching. In determining whether that was the case in these circumstances, the magistrate had regard to the unchallenged medical evidence, to which I also attach weight in this application, that the application of cream to this particular child’s vaginal and anal area having regard to her disabilities was absolutely required and would be highly unusual not to have occurred.
In attaching weight to the magistrate’s findings in relation to the last two matters (the father’s actions shown in the video and the appropriateness of his conduct), it also appears to me that the mother’s evidence in these proceedings in relation to those matters is likely to be treated with caution by the trial judge. Her evidence that cream to be applied to the child after her bath was “not to be massaged into any private areas” is inconsistent with the medical evidence and to her answers given to police that it was she who taught the father how to massage the child. The mother’s evidence that she made a second recording of the father’s actions on the advice of her GP as the first recording was unclear, is also inconsistent with the magistrate’s description of exactly what the father is seen to be doing on each of the videos.
Other aspects of the mother’s evidence which in my view are likely to give rise to concerns about its reliability and accuracy include the context in which her suspicions about the father arose, uncontroversial inaccuracies such as that the father himself always locked or closed the door when bathing, massaging and dressing the child, and as her evidence concerning the advice allegedly given by her GP is not supported by the GP’s records produced on subpoena. I also expect that a trial judge would approach with particular caution the mother’s clams that a medical practitioner, having been alerted and shown a video said to depict a profoundly disabled and vulnerable child actually being abused, would then effectively encourage the mother to allow the child to be abused again in order to obtain more evidence, particularly as the medical practitioner would be a mandatory reporter in relation to child abuse.
Finally, I also consider that the mother’s actions in showing the unedited versions of the two video recordings to various people and then editing those versions, matters which are beyond dispute, give rise to concerns about the her motivations in making those recordings. This is especially the case when the portions of the videos that were removed in this process showed the father applying cream to the whole of the child’s body. The edited versions then depict the father applying cream to the older child’s anal and genital region only which I consider will be seen as a very significant and deliberate alteration in the circumstances.
In summary, I accept the submission of the father that the question of the father’s actions as captured on the two video recordings is the central factual issue related to risk in these proceedings. While making no definitive findings as to the father’s actions and whether they amount to sexual abuse, I consider that each of the foregoing matters are relevant to an assessment of that risk. In my view, having regard to these matters it is unlikely that at any final hearing the trial judge will find that the father sexually abused the older child as contended by the mother.
In these proceedings it was conceded by the mother’s counsel that the case of unacceptable risk allegedly posed by the father arises solely from the allegation that he sexually abused the older child in the past. Accordingly, I consider it unlikely that the trial judge at final hearing will find that the father poses an unacceptable risk of harm arising from sexual abuse.
THE COMPETING PROPOSALS
Section 60CA provides that 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.
In Deiter (supra), the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
It is likely that the interim parenting arrangement under consideration will be in place for many months if not years. An expert report has not yet been prepared and the children have already spent no time with their father for two years.
The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.
The primary considerations: s 60CC(2)
The primary considerations, which are contained in s 60CC(2), 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.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7]
[7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
If orders are made as sought by the mother the children will be deprived of any relationship with their father. Although it is contended on her behalf that the father poses an unacceptable risk of harm to the children arising from sexual abuse and exposure to family violence, the submissions do not go so far as to suggest that the children do not receive a benefit from having a meaningful relationship with him. It is implicit in the orders proposed by the father and ICL that the children do receive a benefit from having a meaningful relationship with both parents, a matter with which I agree.
In the circumstances under consideration, the children have already not had any contact with the father for two years and if orders were made as sought by the mother there may be a similar period where they will have no contact with the father in the future. If, as seems likely, that a court will ultimately find the children do receive a benefit from having a meaningful relationship with their father and they have continued to spend no time with him, there may then be so little foundation for those relationships that it will be extremely difficult, if not impossible, for those relationships to be rekindled.
If orders are made as proposed by either the father or the ICL (and in the case of the ICL’s proposal such orders are able to be implemented, a matter to which I will return), the children’s meaningful relationships with their father will be fostered through spending time with him. Although the ICL’s proposal does not provide for the children to spend extensive time with their father, the proposal still amounts to fostering meaningful relationships as this consideration has not been interpreted to require the Court to craft orders that promote an optimal relationship between a child and parent.[8]
[8] Godfrey & Sanders [2007] FamCA 102 at 36.
The second of the primary considerations looms large in this case. However, although it appears that the father has been violent to the mother on a number of occasions in the past, I do not consider it likely that at final hearing a trial judge will be satisfied that the need to protect the children from physical or psychological harm from being subjected to or exposed to family violence will justify an order for no time with the father. For this reason, I do not consider that the need to protect the children from being exposed or subjected to family violence requires that there be no time spent with the father on an interim basis.
As also explained earlier, I also do not assess that the allegations of sexual abuse give rise to such a magnitude of risk that cannot be mitigated except by the children spending no time with the father.
In my view, the proposal of the ICL appropriately balances each of the primary considerations while placing greater weight on the need to protect the children from harm as required pursuant to the Act. It was not contended at the interim hearing that the children do not receive a benefit from having a meaningful relationship with both parents and there is no dispute that the children have been exposed to significant conflict between the parents in the past. The ICL’s proposal provides for the children’s meaningful relationships with both parents to be fostered while safeguarding the risks of harm arising from exposure to family violence in the future through proposing supervised time. In my view, this domain of risk in the circumstances of these proceedings alone does not require that the children’s time with the father be supervised, though the need for supervision arises from this matter and a combination of other factors to which I will return.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant to these competing applications.
Views expressed by the children
Given the children’s ages, and in the case of the older child, her severe disabilities, the children have not expressed any views in relation to their parenting arrangements.
The nature of the relationships of the children with each of their parents, and other persons
Likely effect of any change in the children’s circumstances
These two considerations are interconnected. The children have spent no time with their father for just over two years and in my view it would be a significant change in their circumstances if orders were made that they spend time with him he proposes.
There is no dispute in these interim proceedings that the children are likely currently to have an attenuated relationship with the father given their ages, the older child’s disabilities and that it is now two years since they have seen him. It is possible that at least the older child may have no memory of the father at all. This is a weighty matter when considering the father’s proposal that the children immediately begin to spend a period of eight hours with him each week, that after two months a second block period of eight hours be introduced and that four months from the making of these orders they spend each alternate weekend with him.
Although there seems to be some dispute between the parties about the nature of the father’s previous involvement in the care of the older child, it appears beyond dispute that prior to physical separation both parents were significantly involved in the care of both children. In these circumstances it may be expected that prior to physical separation the children had meaningful attachment relationships with both parents. This is a particularly weighty factor when considering the proposal of the mother that the children spend no time with the father and there is no other means of fostering those relationships. For this reason, in my view, the proposal of the ICL which preserves the relationships between the children and their father while protecting them from harm through supervision is to be preferred over that of either of the parents.
Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children
These are not weighty matters in the competing applications for interim orders except to observe that the father has made diligent efforts as soon as his criminal proceedings were complete to participate in decision-making and spend time with the children through making this application for interim orders and appears committed to continuing that involvement in the children’s lives in the future.
Practical difficulty and expense of a child spending time with and communicating with a parent
As the mother proposes that the children spend no time with the father and have no communication with him, no associated practical difficulty or expense is entailed in her proposal. This is not, however, a weighty factor in favour of her proposal in the circumstances of this dispute.
The question of practical difficulty and expense under the various proposals is most weighty when considering the proposal of the ICL. Initially, the ICL’s proposed orders were for the children to spend time with the father at a designated contact centre. After it came to light in the course of the interim hearing that a vacancy for this family may not become available at this centre for up to 18 months the ICL explored other options with private supervision services and ultimately proposed in oral submission that a particular service be utilised to facilitate that time. The ICL did not however reduce this proposal to writing and various components of it were revealed in a somewhat ad hoc manner in the course of oral submissions. Of particular importance, it became apparent that the ICL’s amended proposal envisaged that a carer for the older child funded through that child’s NDIS funding be in attendance at each contact event even though there was no evidence that such arrangements could be made or funded by the NDIS.
I accept the submission made on behalf of the father that as various components of the ICL’s proposal emerged in the course of oral submissions without any evidence to suggest that such a proposal was practicable or affordable, there is a real risk that the ICL’s proposal may result in the children spending no time with the father on an interim basis. This is a matter to which I will return when considering other factors in relation to this application.
Capacity of each parent to provide for the children’s needs, including emotional and intellectual needs
Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the children and parents
Attitude to the children and responsibilities of parenthood demonstrated by each parent
In my view, these three interrelated matters are particularly salient in this application. Although the family are yet to be assessed by an expert for the purposes of the proceedings there is no dispute between the parties that the older child in particular has significant vulnerabilities and needs due to her extensive disabilities. There is also no dispute that the older child’s vulnerabilities have been challenging for the parents but they appear to have been capable of providing appropriate care both individually and as a couple to meet both of the children’s needs when the relationship was intact.
There is no evidence to support the submission made on behalf of the mother that her parenting capacity may be compromised if the father is to spend unsupervised time with the children as he proposes as she continues to hold a belief about the risks posed by the father to the children. Even if this were the case, it is not submitted on her behalf that the mother’s parenting capacity may be significantly compromised if the children were to spend supervised time with the father.
Some weight in my view must be attached to the ICL’s submission that the father’s low tolerance for frustration can be seen from the fact that some of the family violence perpetrated by him in the past occurred in the presence of the children and that such behaviour may be considered as a shortcoming in his parenting capacity.
Although each of the parents make competing contentions about the capacity of the father to meet the children’s needs and in particular the needs of the older child, this is yet to be assessed by an expert. In the circumstances of this case given the vulnerabilities of the older child in particular and the extensive time that has elapsed since the father has been involved in the children’s care it is in my view appropriate to take a cautious approach.
However, unless the father were to be found to have sexually abused the older child which would undoubtedly reflect very adversely on his parental capacity and attitude to the child and responsibilities of parenthood, it is unlikely that his alleged shortcomings in this regard would justify an order that the children spend no time with him. For the reasons given it is my view that a court at final hearing would not make such a finding.
Conversely, I am unable to conclude on the available evidence at this stage that the father does have the capacity to provide the particularly high quality of parenting that these children require. Given the children’s vulnerabilities, the father’s admitted engagement in family violence and the period of time which has elapsed since he has had actual day to day care of the children, I have concerns about his capacity to meet their needs if orders were made as he proposes.
Family violence
Any other fact or circumstances the Court thinks relevant
The issue of family violence featured significantly in submissions made on behalf of the mother and ICL. As discussed previously, at the initial hearing in November 2021 there were significant differences in each party’s account of the incident of family violence in May 2015. At the time of that hearing the court file in relation to the father’s plea of guilty to a charge of occasioning actual bodily harm was not available. When the proceedings were reopened in February 2022 (following an Application in Proceeding for unrelated reasons) further documents were admitted including correspondence between the parties’ legal representatives and the Local Court file associated with the father’s conviction.
In relation to the criminal charge, the father submits that it was an isolated incident, he acknowledged the inappropriateness of his behaviour at the time, through his guilty plea he expressed his genuine remorse and spared the mother the stress of criminal proceedings and has been held accountable for his conduct through those proceedings. Further, it is submitted that there has been no allegation of similar conduct for the ensuing years and as the incident took place prior to the birth of each of the children they were not exposed to the incident. It is argued that all of these matters should be taken into account when considering the weight that should be attached to that matter in these proceedings.
Further, it is contended on the father’s case that the May 2015 incident of family violence was not the primary reason for the mother’s opposition to the children spending time with him as at November 2021, and that he had significant involvement as a parent with each of the children prior to the mother’s allegations of sexual abuse in April 2020. For these reasons, it appears to be suggested that the mother herself cannot have particular concern about family violence sufficient to justify the children spending no time with the father.
Further, the other documents admitted into evidence in February 2022 include an email from the mother’s solicitor dated 18 February 2022 (at a time when judgment was initially reserved) advising that the mother had instructed her lawyers to “convey that she wishes the father to spend time with the children”. It is submitted on the father’s behalf that this reflects the mother’s shifting position in relation to this matter and raises questions about the genuine nature of her concern about risks posed by the father.
It is submitted on behalf of the mother that no weight should be attached to the contents of the email of February 2022 on the basis that if this document is taken at face value it can be misleading, especially as there is no evidence before the Court concerning the context in which it was written. In particular, it is submitted that the Court should not draw an inference that the mother is disingenuous when expressing concern about alleged risks posed by the father arising from family violence, or that the allegations of family violence are baseless. I was not invited to draw these particular inferences by the father’s legal representative arising from these documents and do not at these interim proceedings make any findings of this nature.
For the reasons given when earlier considering the question of family violence, I am satisfied that the father was the perpetrator of a serious incident of family violence in May 2015 as there is no dispute that he pleaded guilty to and was convicted of a criminal offence at the time. As also previously indicated, there is other evidence in support of the mother’s contentions in relation to other family violence perpetrated by the father which may lead a trial judge to find that his conduct in May 2015 formed a part of a pattern of behaviour rather than an isolated incident. These matters are relevant to the question of interim parenting responsibility for the children and the need to protect them from harm arising from potential exposure to family violence in the future.
In the circumstances of this interim dispute, I am unable to be satisfied that the father’s violence in May 2015 is an isolated incident a long time in the past as the father contends nor do I consider that it is a matter that justifies the children spending no time with the father as contended by the mother.
CONCLUSION
In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred. In my view, neither of the proposals of the parties in the circumstances are proper or in the best interests of the children having regard to the various best interests considerations as explained.
As explained, the ICL’s proposal that would see the children’s relationship with their father fostered through spending time in a supervised setting. This arrangement preserves the children’s relationships with their father while protecting them from harm, and thus most appropriately meets the best interests of the children.
However as also explained, the ICL did not proceed with seeking orders as set out in the Outline of Case filed at the commencement of the interim hearing and the amended proposal emerged in the course of oral submissions.
Orders are made in accordance with that amended position as can be gleaned from oral submissions. These orders also include a mechanism for the parties to agree to any supervision service as may be available that will result in the children’s time with their father recommencing as soon as practicable. I have some confidence given the contents of the email sent by the mother’s legal representative in February 2022 that the parties will be able to reach agreement about such an appropriate supervision service or in the event that no such agreement can be reached, such service is to be nominated by the ICL.
For the foregoing reasons, I make the orders as set out at the forefront of this judgment.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 13 May 2022
0
6
0