Salt and Salt

[2017] FamCA 570

FAMILY COURT OF AUSTRALIA

SALT & SALT [2017] FamCA 570

FAMILY LAW – CHILDREN – Amendment of orders

APPLICANT: Ms Salt

RESPONDENT: Mr Salt

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAC 1754 of 2016

DATE DELIVERED: 1 August 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 31 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Simpson, Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:	Ms M Davis
SOLICITOR FOR THE RESPONDENT:	Claire Naidu & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs J Lloyd

Orders

IT IS ORDERED THAT

1. The orders of 15 December 2016 are amended to insert the following orders:

   1.1The mother may on four occasions per year suspend the Saturday and Sunday time with the father, provided that the suspensions do not occur more than two weeks running and provided the mother gives the husband 28 days’ notice in writing of the suspension.

   1.2The father may not continue to use supervisors pursuant to this Order, namely:

   (a)       Mr B;

   (b)       Ms C;

   (c)       Ms D;

   (d)       Mr E;

   (e)       Ms F; or

   (f)        Ms G

   unless and until each supervisor has been provided with a copy of these Orders and acknowledges in writing that they have read the following notation and that such acknowledgement has been provided to the solicitors for the mother.

IT IS NOTED THAT

ASupervision of the father’s time with H is required as an issue before the Court is whether the father has had possession of child exploitation material, being literature describing sexual abuse of children by adults, and sexual conduct between children, and whether the father has engaged in sexual contact with minors through the Internet.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1754 of 2016

Ms Salt

Applicant

And

Mr Salt

Respondent

REASONS FOR JUDGMENT

1. This matter concerns the arrangements for H (the child), who is almost 3 years old.  The child lives with the mother and spends time with the father.  The matter is in the context of issues of risk said to arise from the father to the child and in the context of temporary orders that were put in place in December 2016.

2. The scope of the dispute before the Court is currently narrow.  The time that the father spends with the child is currently supervised by nonprofessional supervisors.  He asks that this continue, the mother asks that they be replaced by professional supervisors.

3. There is also a dispute as to the duration of the time that the father would spend with the child.  The mother seeks to shorten the time and to decrease the frequency to fortnightly as opposed to the current weekly frequency.  The father seeks to retain the current frequency and timeframe but to remove a mid-visit break for breastfeeding for the child. 

4. The mother relied upon her affidavit of 27 July 2017 and the affidavit of Ms J, psychologist, dated 27 July 2017. 

5. The father relied upon his affidavit from 14 September 2017 and from each of the supervisors that he currently uses.

6. The key issues that have been identified firstly by the mother are the efficacy of having less than professional supervision in protecting the child from risk and also distress or upset or the unsettled nature of the child coming from visits.  For the father, again it was the efficacy of having a nonprofessional supervisor in its presentation of the more natural environment for the time that he is to spend with the child. 

7. The issue as to the effects upon the child of the time with the father include, according to the mother, changes in the child’s behaviour since the nonprofessional supervision commenced.  She says there has been extended breastfeeding time at the child’s insistence of up to four hours on return to the mother, a reluctance to unlatch during breastfeeding breaks during the visits, that the child appears quiet on return and does not speak of his father, that he exhibits some distress if his mother is to leave and that he has displayed some degree of regression in terms of walking and toileting.  In contrast, the father says that the child’s behaviour appears quite normal on visits, he appears settled and happy and smiling and laughing and he describes a positive interaction in activities.  That is, in this case there is contention as to the impact on the child from the visits.  Even if I accept the mother’s descriptions at face value, at present the source of such issues could not be positively identified as flowing from the father and the time with the father.  What is proposed in part is a change to supervision and it is unclear what change this would work on what behaviour is supposed to be occurring to cause such matters.  That is, it is unclear how a change in supervision would affect a change in these matters that the mother says that she is experiencing.

8. I was taken to some specific risks to the child particularly as put forward by the mother.  These flow from a history of the mother discovering and dealing with child exploitation material alleged to have come from the father.  Specifically, these involve apparent interactions over the Internet with minors in chat rooms being sexualised interactions.  They also allegedly involve written stories that involve sexual acts or abuse being committed upon children and sexual acts occurring between children.  The risk issue that appears to be raised from these matters is the potential that the father sexualises children.  The mother also puts forward a history of the father playing with the child while the father is nude and permitting the touching of his genitals, permitting the child to touch his groin area while the father was clothed, the manner of the father’s kissing of the child, an occasion where it is alleged that the father had an erection while the child was on his lap, the touching and rubbing by the father of the child’s penis area over his nappy, the child making reference to the father tickling his bottom in the context of nappy changes by the mother and the child open mouth kissing the mother post time with the father.  These other matters have some degree of ambiguity as to whether or not they exhibit inappropriate behaviour.  The father denies any inappropriate behaviour towards the child. 

9. The mother raises particular issues or concerns about supervision.  She makes a number of criticisms.  She points to the fact that Ms C posted to an app during supervision, that Ms C drove separately to the father on 15 January 2017, that the child has on occasions been distressed and been refusing to go with the father, that Ms D showered during a period of time when she was supposed to be supervising the father with the child, that the child has asked be patted or kissed or hugged on his tummy or genital area, and that he has acquired on occasion a dairy rash.  She alleges that Mr B travelled in a separate car to the father and the child on 12 March 2017, she alleges that the child has stripped off in her presence, that she has found a piece of cereal in his nappy, that he has pressed his nipples and made monkey sounds and that Ms C has been observed by her as affectionately hugging the child which she asserts is beyond the role of a supervisor.  She has further expressed concerns in relation to Ms K and the other supervisors not knowing the nature of the reason for the supervision or in Ms K’s case, apparently holding it against the mother.  Ms K is, by the agreement of the parties, no longer to conduct supervision following an exchange between herself and the mother.  The father asserts, and is not contradicted on this, that the undertakings given by each of the nonprofessional supervisors are in accordance with requirements imposed by the mother.

10. Turning to the post by Ms C, this does not appear to be a problematic matter regarding supervision that is it does not appear to undermine her role as a supervisor.  Ms C accepts on one occasion she travelled in a separate car to the father and the child.  This did not constitute appropriate supervision, however, in context did not appear to give rise to a relevant risk.  It does call into question her consistency as a supervisor.  Having been identified as an issue Ms C says it has not occurred since. 

11. Ms D accepts that she had a shower whilst she was supposed to be supervising.  She asserts that she was still able to supervise while having the shower in that she says that she could hear what was going on.  This too demonstrates an inadequacy in supervision and calls into question her consistency as a supervisor.  She too has asserted that it will not occur again.

12. Mr B denies that he travelled in a separate car to the father. 

13. The cereal, nipples and monkey issue and the patting do not imply, as far as I can ascertain, a current sexual abuse risk arising out of the supervised time.

14. The affidavit material from each of the supervisors displays how, in some detail where it was necessary, that supervision has been undertaken.  Although much of the affidavit material from each supervisor replicates the affidavit material from the other supervisors, this is not surprising if the supervisors were given common instructions as to the reasons for the supervision.  The deficits identified by the mother do not constitute appreciable risk to the child in the instances that she has set out for example, the travelling in separate cars.  However, they do call into question the degree of vigilance given by these supervisors. 

15. Importantly it seems what is lacking is an understanding on the part of these supervisors as to the current nature of the allegations in respect of the father being allegations that may not have been fully articulated at a previous point, and that is that the allegations include the possession of child exploitation material.  The mother further asserts a high degree of impact of anxiety which is in part connected to doubts on her part about the child’s safety.  It is not clear the place to be assigned to this issue in these interim proceedings.  It does not seem that the mother suggests that her anxiety is a cause of the behaviours described regarding the child.  It may be accepted the professional supervision may alleviate that anxiety although that too is far from certain. 

16. In weighing the critical factors in this interim hearing and bearing in mind the limitations of an interim hearing which means that I must be cautious as to being drawn into contentious and substantive matters, the key matters are the importance of protecting the child from harm and the importance of maintaining benefits for him in meaningful relationship with his father.  That is to be done in the context of the limited parameters of the dispute before the Court.

17. The key issues then resolve to the risks to the child of not having professional supervision, as opposed to professional supervision.  That is to be considered in the light of the benefits to him of not having professional supervision, to consider the potentially adverse effects of the current frequency as opposed to the benefits to him from the current frequency of time. 

18. The risk to the child, if ultimately established, appears to be one where the father regards children as sexual objects - that appears to be the potential effect of the child exploitation material.  Accompanying that risk, in combination with the other complaints raised by the mother as to his conduct, is a risk that he may deal with the child sexually.  If he was to do so there is a high risk of terrible harm being done to the child.

19. Professional supervision in the interim would provide a solid safeguard against this.  However, the interactions and ease of interactions described by the father give a good basis for the maintenance and facilitation of his relationship and the benefits that the child gets from that in the current regime of nonprofessional supervision.  That is, they occur in the context of nonprofessional supervision.  The question then arises, does the child’s safety mean that should be disturbed.  That in turn is a question as to whether or not there is adequacy in the nonprofessional supervision in protecting the child.  There have been some deficits in that supervision - there has been travel in a separate car or cars; there has been the showering by one of the supervisors and there have been comments made by another supervisor who has since ceased to supervise. 

20. But given the identification of the issue of child exploitation material there is now a further deficit in that regime.  None of the affidavits from the supervisors refer to an understanding of the matters that are currently being alleged against the father.  That scope has now been explained but did not appear to be apparent at an earlier stage, or at least not as apparent as it was yesterday.  That material raises a question of a risk of the father considering children as sexual objects.  The failure of that to be drawn to the attention of the supervisors is a deficit in their understanding of the necessity for supervision and the need for vigilance.  Provided this matter is addressed, then nonprofessional supervision by those who have provided affidavits does provide a sufficient protection while also presenting an environment which enables the relationship between the child and his father to be fostered.  If this matter is not addressed then the current orders which allow a fall-back position of professional supervision or supervision by the grandparents remain operative. 

21. As to the question of a change of frequency, the father sought a removal of breastfeeding time.  The evidence is that is still being used for that purpose and that breastfeeding appears in some ways to be an increasing, not a decreasing issue.  I will not make orders that will remove the breastfeeding time during the father’s time.  The parents are always at liberty to make other arrangements should they become necessary. 

22. The mother seeks a reduction in the father’s time.  I am not prepared to reduce that time in the context of the benefits that accrue to the child from that time.  The mother seeks a decrease in the frequency.  Again, generally, I am not prepared to do so for the same reason.  However, the mother identifies that the issues that are occurring around the time that the child spends with his father mean that time has become particularly onerous.  The mother should have the opportunity to have relief from those obligations on occasion in order to relieve that burden. 

23. I make orders that will provide that the mother may suspend that time on four occasions a year, not more than two in a row, provided 28 days’ notice is given to the father.

24. The final issue to be dealt with is the issue of the fees for Professor Boer, who is preparing the Single Expert’s report.  A dispute has arisen between the parties as to whether or not the father agreed to pay for the fees or the parties together have agreed to pay for the fees.  Subsequent to any assertion that the father had agreed to pay for the fees, orders were made that provided for the parties to share the fees.  I am not prepared to interfere with those orders on the basis of the evidence currently before me.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 August 2017.

Associate: 

Date:  7 August 2017