Reynolds and Eslake

[2015] FamCA 1125

FAMILY COURT OF AUSTRALIA

REYNOLDS & ESLAKE [2015] FamCA 1125      

FAMILY LAW – CHILDREN – the mother to have sole parental responsibility – where the matter proceeded undefended – where serious allegations of impropriety against the father – where family violence occurred.

Family Law Act 1975 (Cth) ss 4 4AB 60B 60CA 60CC 61DA 65DAA 65DAC
Evidence Act 1999 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Harridge & Harridge [2010] FamCA 445

B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT: Mr Reynolds

RESPONDENT: Ms Eslake

INDEPENDENT CHILDREN’S LAWYER: Ms Wallace

FILE NUMBER: TVC 40 of 2015

DATE DELIVERED: 16 December 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 7 December 2015

REPRESENTATION

THE APPLICANT: No appearance

SOLICITORS FOR THE RESPONDENT: Gun Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: McDonald & Leong

Orders

1. All previous parenting orders and parenting plans be discharged.

2. Ms Eslake (“the mother”) have sole parental responsibility for B born … 2009 and C born … 2010 (“the children”).

3. The children live with the mother.

4. The Independent Children's Lawyer is forthwith discharged with the thanks of the court at the later of the expiration of the appeal period from these orders, or the determination of any appeal that may be brought from them.

5. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reynolds & Eslake 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 TOWNSVILLE

FILE NUMBER: TVC40/2015

Mr Reynolds

Applicant

And

Ms Eslake

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the parties’ two children, being B (born in 2009, and hence presently 6 years of age) and C (born in 2010, and hence presently 5 years of age) (collectively “the children”).

2. By his Amended Initiating Application filed 9 July 2015, Mr Reynolds (“the father”) sought orders that Ms Eslake (“the mother”) and he have equal shared parental responsibility for the children, who should live with the father, not see or otherwise spend time with the mother for four months from the date of orders, but thereafter spend (it seems) alternate weekend time with her.

3. By her Amended Response filed 12 November 2015, the mother seeks orders that she have sole responsibility for the children, who would live with her and neither spend time nor communicate with the father.  She justifies those orders on the basis that the father presents an unacceptable risk of harm to the children, such harm said to be physical, emotional and sexual.  However up until 12 November 2015, whilst the orders which she had sought by an earlier Amended Response provided for her to have sole parental responsibility and the children to live with her, she did not seek an injunction restraining the father from spending time or communicating with the children.  That was the state of her application when, unexpectedly, on 10 November 2015 the father filed a Notice of Discontinuance. In consequence of that, the matter proceeded before me by way of an undefended hearing of the orders sought by the mother.

4. The Independent Children's Lawyer ultimately did support the mother’s proposed injunction, but otherwise agreed with her proposal.

BACKGROUND FACTS

The father

1. The father was born in D Town in 1987, and hence is presently 28 years of age.  When he was 5 years of age, his own father committed suicide and he was subsequently raised by his mother and step-father.  He completed school to year 10, and commenced a traineeship.  He was so working when he met the mother and commenced a relationship with her in D Town in February 2008, when he was 20 years of age.

The mother

1. The mother was born in E Town in 1989, and hence is presently 26 years of age.  She moved with her mother and step-father to F Town, and later to D Town where, when aged 18, she commenced her relationship with the father.

The relationship

1. Initially the relationship seems to have revolved around the mother watching the father play his sporting interests of cricket and football, although from an early stage the mother was concerned about the amount and regularity of alcohol consumption by the father.

2. In late September 2008 the mother discovered she was pregnant with B.  Although up until then the parties had been living independently in their own unit, they then made a decision to move into the mother’s parents’ home, although it seems that may have been only short-lived.  From about that time, the mother says that she noticed the father commenced to engage in controlling behaviour, although initially she thought it was “purely to stir me.”

3. In late 2008 the parties began to struggle financially.  Firstly, although the father had by then just qualified in his trade, he did not continue on in employment in that industry.  Additionally, the mother suffered complications with the pregnancy, and she resigned her employment in a nursing home.  They started to borrow money from their respective families.  However the mother alleges that the father spent much of the parties’ money on alcohol.  She also says the father began to control the parties’ finances to enable him to meet the costs of alcohol.

4. B was born in 2009, and after his birth, the parties resumed living with maternal family.  The mother says that the father would not help much with the care of the child, and would only assist in bathing him.  She also says that the father commenced to regularly verbally abuse her, and in October 2009, first assaulted her by punching her in the left arm which caused a bruise.  After that assault, the mother attended a community support centre and was put up in a motel by that organisation for three nights.  Although the mother was advised to obtain a domestic violence order against the father, she did not do so, and the parties reconciled.  The mother says the father promised to stop drinking and to help more with the care of the child.  She seems to concede that for some period of time – perhaps three months – the father did indeed moderate his drinking, and she recalls that his temper and behaviour improved.

5. In January 2010 the parties moved to Victoria for two months and stayed with members of the mother’s family there.  There was an altercation between the mother and her brother’s wife, on the one hand, and the father on the other, which, on the mother’s version, ended with the father throwing some personal belongings that he had taken at both of them, hitting the mother’s sister-in-law in the head.

6. In March 2010 the parties returned to D Town, and the mother says that the father continued his heavy drinking and became increasingly verbally abusive.  He became intolerant towards any annoying behaviour of B.

7. In 2010 C was born, and although the mother says the father was initially highly supportive of her and the infant, after they returned home he continued drinking and physically abusing the mother.  Particularly she says that he would block her in the hallway by positioning his body in the middle, and would push and shove her if she tried to get past him.  This much was indeed admitted by the father both in his affidavit material and to the Family Report writer.  However the mother also says that the father also, on occasions, hit her, either slapping her with an open hand or alternatively using a fist.  The mother says that this occurred in front of the children, and she recalls an occasion when the father punched her in the arm and pushed her into the wall, when B put himself between them and cried “daddy, don’t hit mummy.”

8. The mother says that there was a further occasion when the parties were driving and B was crying in the back seat, when the father became annoyed and said “I’m going to kill myself, I am going to put my hand through the saw blade at work and kill myself.”  At the time the father was working at a butchers.  The father denies in his affidavit material that he said that.

9. At a stage which the evidence does not permit me to determine with clarity, the mother says that the father commenced excessive physical discipline on B.  In evidence before me were some photographs which the mother had taken from time to time of B, which appear to show adult sized hand shaped discolorations on his skin.  The mother says she took those photographs after the father had slapped the child.

10. The mother says that on an occasion in about March 2011 the father refused to let her attend for medical treatment in relation to a bladder issue, and after she was eventually hospitalised, the father refused to care for the children.

11. On 6 April 2011, shortly after being released from hospital, the mother left the father and travelled to Victoria with both of the children.  Two days later, on 8 April 2011, she obtained an Interim Intervention Order against the father from the G Town Magistrates Court.  It restrained the father from committing family violence against the mother or approaching within 100 metres of her.  Notwithstanding that, the parties re-negotiated their recommencement of their relationship, with the mother saying that she only agreed to reconcile because the father agreed to stop abusing her and the children, stop drinking, see a doctor and attend couples counselling.  In fact the father travelled to Victoria and the family spent Easter together in Melbourne.  At the conclusion of that time, the mother and children returned with the father to D Town.

12. At about this time the mother recalls that the father was watching a lot of pornography on his computer.  The father appears to concede that indeed he did regularly have recourse to pornography.  The mother also says that at this time the father introduced her to some sexual fetishes of his, to which the Family Report writer applied the label of paraphilia.  It does not appear to be in dispute that indeed the parties did engage in such fetish behaviour; however they are in dispute as to who introduced the other to it, and whether it was undertaken consensually.  Little turns upon this in the context of these parenting proceedings, save that plainly the father does have an interest in some species of paraphilia.

13. The parties attended relationship counselling and it appeared to have some success.  However in September 2011 the mother says that the father struck B with a fist, and in consequence she attempted to leave the house with the children.  She says that the father grabbed her around the throat, and refused to let her take B to the doctor.  The mother in fact did not do so, as she says she was seriously fearful that the father would kill her and the children if she did.

14. The maternal grandmother took some photographs of the mark on B’s body from where the father struck him, and they were in evidence before me.  They are plainly able to be dated 4 September 2011 and appear to show a welt consistent with the child having been struck with force.

15. The parties remained separated for some short time thereafter.  The father sought to reconcile again, and said that he would go to a doctor and seek help.  Indeed he did and was given some medication for depression.  The mother and children went back to live with the father, although he shortly thereafter stopped taking the medication.  Far from the situation improving, the mother says that the father became more abusive towards the children and the parties continually argued.  Marks continued to appear on the children consistent with them having been struck by the father.

16. On 15 January 2012 the parties again moved back to live with the maternal grandparents.  That did not cause the father’s abuse and violence to abate.  On 9 February 2012 the mother obtained a temporary protection order against the father which required him to be of good behaviour and not commit domestic violence against her.  It also restrained the father from going to, or entering or remaining in, premises where the mother resides or works, or from having or attempting to have any contact with her.  On 8 March 2012 a final order was made by consent, save that the father made no admission.  That order only required the father to be of good behaviour and not commit domestic violence towards the mother.  In fact it appears as though the terms of the interim order restraining the father from approaching or communicating with the mother where never complied with, as indeed the parties were still living together at the mother’s parents’ home at the time.

17. The mother asserts that the father thereafter became more sexually demanding of her, and his paraphilia interests expanded to include an occasion when he had the mother vomit for his sexual pleasure.  The father appears to accept that indeed did occur on one occasion.

18. From about the end of 2012 it appears as though the father would regularly shower the children.  The parties did not have a bath and hence an adult had to shower the children with themself.  The mother says (and she is supported by her mother) that the father would take the child into the shower and lock the bathroom door.  After the shower had ended, he would then take the child into the parties’ bedroom and again lock the door.  Sometimes the children could be heard screaming and there were also banging noises from time to time.  On occasions the mother became so concerned that she would use a bread knife to unlock the bathroom door, but never observed anything untoward going on.

19. In June 2013 the mother was diagnosed as being pregnant again, however the child had a genetic condition which the doctor said gave him only a 1 per cent survival rate if born full-term.  In fact the child was stillborn.  Both the mother and father were very distressed by this.

20. After they returned home from hospital, the father was initially highly attentive upon the mother, but then relapsed into abusing the children and herself, both physically and verbally.  The mother commenced to make handwritten records of occasions of physical abuse of the children.  For instance she records that on 11 March 2014 the father “slapped/hit B on his lower back leaving a welted hand mark.”  She also took more photographs of the red marks which she observed from when the father hit the child.

21. On 19 June 2014 the parties finally separated.  It appears as though by then the mother had commenced to have feelings for another man, Mr H, who subsequently became her partner.  When she told the father of her feelings, he became very upset.  The mother says that he told her he was going to kill the children and her, and would not allow Mr H “to get the children.”  In his affidavit filed 27 July 2015, the father says “I recall I may have threatened to kill the mother and the boys,” however went on to say that if he did “it was out of hurt and frustration” and was “purely reactionary.”

Post-separation

1. In view of the father’s threats, the mother went to F Town, and stayed at the house lived in by Mr H.  She denies that she was then in a relationship with him.  She returned to D Town on 23 June in order that B could continue with his schooling.  The father sought to re-negotiate reconciliation, but the mother refused. 

2. On 12 July 2014 the mother received a letter from solicitors then acting for the father, objecting to what was said to be her unilateral relocation of them to F Town without the father’s consent.  It threatened an urgent application in the event that the children were not returned to D Town, although it never eventuated, perhaps because the mother was still in D Town.

3. On 19 July 2014 the mother sought and obtained a temporary protection order against the father from the Magistrates Court in D Town.

4. In August the mother moved to F Town with the children.  On 30 September 2014 the parties agreed a parenting plan.  It provided for the children to live with the mother, who would also have sole parental responsibility for the long-term decisions in respect of the children’s educational, religious, cultural and health issues.  Additionally, it provided for the father to spend two hours of supervised time with the children each Saturday, initially in D Town, but upon the parties being accepted, at the F Town Contact Centre.  It also provided for the children to communicate with the father for half an hour each Tuesday and Friday evening.  The mother says she agreed to supervised time because she had “concluded that it was in the best interests of the children to spend at least supervised time with [the father] as I then felt they should have a relationship with their father.”

5. On what appears to be the first occasion of telephone communication on 7 October 2014, B did not wish to speak with the father and kept walking away from the telephone.  Subsequently he began having nightmares and wetting the bed.  He became aggressive.  He would kick, punch and throw things at people and at the wall.  C also reacted adversely to the telephone communication.

6. After three telephone calls, the mother took the children to a psychologist, who it is said advised her to cease all contact between the father and the children for a month, which she did.

7. Further, although the father was due to first spend supervised time with the children on 18 October 2014, the mother did not permit the children to spend time with the father, and emailed him to that effect.  In fact it appears as though the father did not ever spend time with the children pursuant to the parenting plan.

8. On 13 December 2014 B was constantly crying and inconsolable.  Once he calmed down, he told the mother that he had been upset because “he was constantly thinking about how [the father] used to hit him and grab his legs and smack his head into the bed.”  The mother says B became “more upset and said he could not tell me the rest.”  Later B disclosed to Mr H that “dad used to touch my private parts.”  He motioned that these were his bum and his penis.  The mother contacted the police, although she did not take B to either the police or DoCS until sometime after she had seen B’s psychologist on 18 December 2014.

9. On 19 December 2014 the mother made an application to vary her domestic violence order to name the children as aggrieved.

10. On 15 January 2015 the father commenced these proceedings in which, he sought orders for equal shared parental responsibility, and for the children to live with the mother, but spend alternate weekend and one half of school holidays with the father. 

11. The children were eventually interviewed by police in February 2015.  Between December and when they were interviewed, B had continued to make further disclosures against the father, including that “[the father] used to put his willy in my bum where my poo comes out” and that this occurred in the locked bedroom, and further he said that the father “used to do the same thing to C in front of him.”

12. I will discuss the interviews of the children later, but suffice to say that ultimately no charges were proffered against the father, whether in relation to sexual assault, or assault simpliciter.

13. In March 2015 the mother became concerned when some pornography was found on computers in her house which she thought contained naked images of boys between the ages of 12 to 14 years.  She believed them to have been downloaded by the father, and took them to police.  No charges were ever brought against anyone in relation to that material.

1. On 8 April 2015 the maternal grandfather passed away, in what has been described as “suspicious circumstances.”  It appears as though the apparent cause of death was suicide.

2. In the latter stages of 2014 the mother had become pregnant to Mr H, with what was to prove to be her youngest child, J.  Whilst heavily pregnant, on 10 May 2015 there was considerable turmoil at the mother’s home in consequence of which she became so distressed that she “started crying hysterically and picked up the hair straightener cord and put it around [her] neck.”  Mr H, who was by then her partner, grabbed the cord saying “what are you doing! Stop!”  The mother then broke down crying and lay on a bed.  She was later psychologically assessed in consequence of her behaviour and has thereafter engaged with counsellors and commenced to take anti-depressant medication.

3. On 22 May 2015 she gave birth to J.  Since then however, the mother and Mr H have terminated their relationship, although the mother did say in her affidavit sworn 12 November 2015, that she “wouldn’t say for certain that there is no chance of us getting back together.”

4. On 16 September 2015 the Family Report interviews and observations took place.  This included the children being re-introduced to the father.  That was the first time they had spent any time with him since June 2014.  B appears to have been less engaging with the father than was C, but both of the boys at the end of the session gave their father a hug goodbye. 

5. The mother says that after those interviews B “played up badly.”  He was initially quiet, but for the next couple of days “was extremely agitated, aggressive and upset, and regularly engaged in temper tantrums.”  It required him to take two days off school.

6. Ms I’s recommendations in her Family Report were that until the father undertook a sexual risk assessment by forensic psychologist, that the children spend no time and have no communication with him.  She contemplated preparing an addendum or updated family report once that risk assessment had been received.  However before the risk assessment could be undertaken, the father discontinued his proceedings, and thereafter disengaged from the proceedings altogether.

THE ISSUES

1. This case involves the balancing of the two primary considerations in s 60CC, namely, on the one hand, the benefits to the children of having a meaningful relationship with the father, and on the other hand, the need to protect them from such harm as he poses to them from abuse or family violence.  I will consider those issues once I have discussed the relevant statutory provisions and legal principles, but in advance of determining the appropriate parenting orders in this case.

LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]  In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

   [1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

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

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

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

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family … or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence.  Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence. 

The standard of satisfaction required

1. S 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

WHAT RISK DOES THE FATHER POSE TO THE CHILDREN

Overview

1. The mother asserts that I should be satisfied, on the balance of probabilities, that the father poses an unacceptable risk of physical (with consequent emotional) and sexual harm to the children.  The assessment of the risk which the father poses to the children is made all the more difficult by him having disengaged from the proceedings, in somewhat unusual circumstances.  I will consider the asserted risks individually.

Physical and emotional harm

1. Appended to the mother’s trial affidavit were photographs which she took in August and September 2011, which show marks on both children, said to have been caused by the father excessively disciplining them.  The photographs of B particularly appear, at least to my mind, to clearly show the imprint of an adult hand at the centre of an area of reddening or inflammation.  There is no reason to think that the mother took photographs of those marks for any purpose other than to provide contemporaneous evidence of the father having struck the children.  The photographs are plainly focussed upon those features of the children, and are not otherwise in the nature of “happy snaps.”

2. I am therefore satisfied that on occasion, at least in 2011 and probably thereafter, the father has excessively physically disciplined both of the children by slapping or hitting them.  It is both abuse and family violence as those terms are defined in the Family Law Act. 

3. The father concedes that he was physically violent to the mother during the course of the relationship.  I am satisfied that indeed he was, and more, that it was regularly played out in front of the children.  It is family violence as defined in the Family Law Act. 

4. The father concedes that on the occasion of separation he was very angry and threatened to kill the mother and children.  I accept that he did so.  Again, it comprises family violence.

5. Even accepting that at the time of the family violence, the parties were no doubt under a great deal of personal strain, there is nothing in the father’s material which would persuade me that he has changed his ways since then, or that he no longer presents a risk of either physical violence by way of excessive discipline of the children, or family violence towards the mother.  I would assess the risk of him so behaving again as real and substantial.

6. The physical and emotional harm which can flow from excessive physical discipline to a child, or from the child being exposed to family violence, are well known and do not need to be repeated.  I am satisfied that indeed the risk of that harm eventuating, should there be excessive physical discipline or exposure to family violence, is substantial.

7. There are however, means by which the risk which the father poses to the children in this regard can be sufficiently mitigated, as indeed the parties themselves recognised on 30 September 2014 when they agreed their parenting plan.  I will discuss those mitigatory measures when considering orders in due course.

Sexual harm

1. It has to be said that there are some quite unsatisfactory aspects about the mother’s claim that the father presents an unacceptable risk of sexual harm to the children.

2. The first is that the first disclosure was not until some six months after separation on 13 December 2014, in the context of the mother having only recently unilaterally suspended the father communicating with the children, and unilaterally determined that the time that the father was to commence spending with the children under the parenting plan would not take place.

3. Moreover, the mother’s response to the disclosure made on 13 December was a little unusual.  Although she did telephone the police, she wanted to seek assistance from B’s psychologist before proceeding further, and there was some difficulty arranging that appointment.  Further, before she ultimately took the children to the police, she sought to vary the domestic violence order to include the children, which does at least carry with it the suspicion that the disclosures were seen as in some way forensically advantaging her.  Moreover, there was then difficulty in teeing up an appropriate appointment for the children to be interviewed by police, notwithstanding that B continued to make further disclosures.  That interview could not occur until February 2015.

4. A precis of the 93A interview conducted on 18 February was in evidence before me (exhibit 1).  B did indeed provide some limited specificity about his father having touched him, and having physically disciplined him, but much of the surrounding detail was confusing and little context was able to be given.  C’s interview appears to have gone nowhere.

5. The police records note that “police are of the belief that sexual/physical has occurred but that they may not have been sufficiently detailed for police to be able to take formal action and charge the suspect.”

6. Further, notwithstanding the fact that the children’s allegations were well known by the time the mother came to file her Response on 12 March 2015, the mother did not then seek any injunction restraining the father from spending time with the children, albeit that she did not seek any orders for contact either.  In fact she did not formally change her position until after the father had discontinued his application.

1. That said there are a number of matters of concern in relation to this aspect of the case.  The first is that the father does appear to have some atypical sexual interests.  The second is that plainly B was able to tell police about the father having touched him on his penis and anus.  The third and most complex is the father’s disengagement from these proceedings, once a sexual risk assessment of him had been recommended, and was being organised. 

2. It is difficult to know what to make of the father’s disengagement in those circumstances.  On one hand it may be an acknowledgment that the risk assessment would be adverse to him, and would likely legitimately found a conclusion that he presents an unacceptable risk of sexual harm to the children.  On the other hand, given his atypical sexual interests, it may be that the father did not wish to be forced to be examined by a psychologist in relation to them, or indeed that he simply formed the view that the litigation did not seem to be going in a favourable direction for him, and lost interest in it.  It is difficult to know.

3. Plainly there are serious questions raised on the material in relation to the father being a risk of sexual harm to the children, but those questions, of themselves and without more, do not provide the answer.  That is no doubt why the Family Report writer wanted to have the father assessed by an appropriate expert.

4. A risk of sexual abuse to a child is one of the most grave allegations that can be made against a parent.  I would need to be satisfied to the requisite standard.

5. Whilst it is beyond question that sexual abuse of a child is likely to profoundly harm them, it is the magnitude of the prospect that the father would so abuse the children which is problematic in this case.  In the unusual circumstances of this case, I do not presently assess the risk of the father so abusing the children as real or substantial, although that is not to say that an assessment of him by an appropriately qualified psychologist may not have produced material from which I could have been so satisfied.  Even given the likely serious harm suffered by a child if they were to be abused, I am not persuaded that the father is an unacceptable risk of harm to the children, at least on the material presently before me.

Evaluation

1. It can therefore be seen that I am of the view that the father presents a real and substantial risk of physical and emotional harm to the children, but am not currently satisfied that he presents an unacceptable risk of sexual harm to them.

WOULD THE CHILDREN BENEFIT FROM A MEANINGFUL RELATIONSHIP WITH THE FATHER

1. The children appear to have become distressed upon commencing communication with the father last year and upon having been reintroduced to him in the Family Report interviews in September 2015.  Because the hearing before me proceeded by way of an undefended hearing, the causes for that distress and agitation were not seriously explored, and particularly whether the children were adversely reacting to bad memories of the father, or simply being distressed by his reintroduction into their lives.  Certainly it appears as though by the time of the conclusion of the Family Report interviews, the children were prepared to give the father a hug goodbye.

2. Ordinarily one would assume that children would indeed benefit from a meaningful relationship with their parents.  At the very least, they benefit from it by knowing that part of their genetic makeup, at the time when they come to formulate their own adolescent identity.  However there is no reason to think that this father would not have other things to offer his children, and that therefore, provided that the children experience him in a safe environment which protects them from any risk of harm which the poses to them, that they would not benefit from a meaningful relationship with him.

SECTION 60CC CONSIDERATIONS

1. I have already addressed the two primary considerations, but should expressly advert to s 60CC (2A) which obliges me to give greater weight to the need to protect the children from a risk of harm.

2. Because there is only one proposal for orders on the table, I make the following brief observations in relation to the relevant additional considerations. 

3. Both children are too young to express any views.

4. I infer that the children are likely to have intact relations with both of their sets of grandparents, but beyond that I know little of them.

5. Since separation in June 2014 the father has not been involved in the children’s lives in any meaningful way.

6. I have no idea as to the father’s satisfaction of any obligations in relation to child support.

7. There is a serious question mark over the father’s capacity to provide for the emotional needs of the children. 

8. Plainly, on any view, there has been family violence in this family.  Beyond that there is no relevant inference that can be drawn from the family violence orders that have applied in the past.

9. Whilst it would be preferable to make orders which would be least likely to lead to the institution of further proceedings, that is not a matter which I give much weight in this case.

PARENTAL RESPONSIBILITY

1. I am satisfied that there are reasonable grounds to believe that there has been family violence perpetrated upon the mother by the father.  The presumption of equal shared parental responsibility does not apply.  In any event, I am not satisfied that such an order would be in the children’s best interests, because there is no recent indication that the parties are able to communicate in a way that would meet their obligations under s 65DAC if there were equal shared parental responsibility.  Indeed I note that the parties appear to have implicitly conceded that by the terms of the parenting plan reached 30 September 2014, which provided for the mother to have sole parental responsibility.

WITH WHOM SHOULD THE CHILDREN LIVE

1. The only proposal before me is that the children should live with the mother.  They have always lived with her, and since June 2014, have not even seen the father with the exception of during the course of the Family Report interviews.  There is every reason to think that their primary attachment remains with the mother, and such attachment as they had with the father is diminishing.  Whilst I do have some serious concerns about the mother’s willingness to facilitate a meaningful relationship between the children and the father, absent any competing proposal by the father, there can only be an order that the children live with the mother.

TIME AND COMMUNICATION WITH FATHER

1. Again the father does not prosecute any proposal for spending time or communicating with the children.  However the mother seeks a positive order that the father be restrained from spending time or communicating with them.  Ultimately that order was not supported by the Independent Children's Lawyer, who conceded that the evidence fell short of being able to satisfy me that the father presents an unacceptable risk of sexual harm to the children, and that any risk of physical or emotional harm could, potentially, be sufficiently mitigated by supervision, of the kind which the parties themselves contemplated in their parenting plan.

2. As has been seen, I am not satisfied that the father presents an unacceptable risk of sexual harm to the children, and conversely, I am satisfied that supervision would sufficiently mitigate the risk of the father excessively physically disciplining the children or otherwise abusing them in a way which might affect emotional harm.  Whilst I accept that s 60CC(2A) requires me to give greater weight to the primary consideration of needing to protect the child from harm, and I do so, in my view nonetheless providing that that risk can be sufficiently mitigated by, for instance, supervision, then there is simply no basis upon which to order that the father be restrained from spending time or communicating with the children.  Moreover, I am positively satisfied that there is a sufficient prospect of the children obtaining some benefit from having a meaningful relationship with the father, that such an injunction should not be ordered.

3. It is interesting to review the mother’s affidavit in which she sets forth the reasons why she sought the injunction.  At paragraph 213 she said:

   .. I feel it would be useful to have such an Order included so that it is clear that [the father] is not to have any contact with the children.  In essence, such an Order would show [the father] that it (sic) is (sic) this Honourable Court that (sic) has decided he is not to have contact with the children based on the evidence before it, and not just me (in the event that [the father] contacts me in the future and requests contact).

4. I have not decided that the father is precluded from the prospect of having further contact with the children in the future, and therefore decline to make such an order.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on ??.

Associate:

Date:  16 December 2015