SEBASTIAN & SEBASTIAN

[2018] FCCA 3034

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN [2018] FCCA 3034

Catchwords:
FAMILY LAW – Parenting – interim hearing – the mother having a relationship with her uncle – whether the mother should be restrained from bringing the children into contact with her uncle.

Legislation:
Evidence Act 1995 (Cth), s.55
Family Law Act 1975, s.60CC

Cases cited:
Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249; (2004) FLC 93-192; [2004] FamCA 768
Theophane & Hunt (2014) FamCA 1038

Applicant: MS SEBASTIAN

Respondent: MR SEBASTIAN

File number: MLC 5765 of 2018

Judgment of: Judge Riley

Hearing date: 18 October 2018

Date of last submission: 18 October 2018

Delivered at: Melbourne

Delivered on: 18 October 2018

REPRESENTATION

Counsel for the applicant: Mr Kirkham of Queen’s Counsel

Solicitors for the applicant: Clark Family Lawyers

Counsel for the respondent: Mr Mort

Solicitors for the respondents: Lander & Rogers

Independent children’s lawyer: Ms Trapski

Solicitors for the independent children’s lawyer: Trapski Family Law

ORDERS BY THE COURT

1. Order 6 in the minute attached to the orders made on 29 May 2018 be vacated.

ORDERS BY THE COURT UNTIL FURTHER ORDER

1. The mother be in substantial attendance at any time when [X] born on 2012 and [Y] born on 2010 or either of them are in contact with Mr W.

IT IS NOTED that publication of this judgment under the pseudonym Sebastian & Sebastian is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5765 of 2018

MS SEBASTIAN

Applicant

And

MR SEBASTIAN

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

Introduction

1. Before the court is an interim application to dissolve an injunction that was made by consent on 29 May 2018.  That injunction restrained the mother, without admissions, from bringing two children into contact with a person by the name of Mr W.  The children are [X], born on 2012 (“[X]”), and [Y], born on 2010 (“[Y]”).

2. The parents agreed on 29 May 2018 that [X] and [Y] would live with their mother and spend time with their father on alternate weekends from Saturday at 11am until Sunday at 5pm for a period, and then from Friday at 4.30pm until Saturday at 4.30pm and Tuesdays after school until Wednesday before school.  Both parents were restrained from consuming alcohol to a degree that would result in them having a blood alcohol content in excess of 0.05% and consuming any illicit substances 24 hours prior to [X] and [Y] being in their care and during [X] and [Y]’s time with them. Various other orders were also made on 29 May 2018.

3. The issue relating to Mr W is that the mother has commenced a relationship with him and he is her maternal uncle.  The mother is 40 years old and Mr W is 55 years old.  The father was very concerned about that relationship. As a result of the father’s concerns, apparently, the mother consented to the order made on 29 May 2018 that she not bring [X] and [Y] into contact with Mr W until further order.  The parents also agreed to both of them attending upon Dr S for a risk assessment and the preparation of a family report.

4. The parents did attend upon Dr S and a family report and risk assessments in respect of both parents were prepared.  The risk assessment noted that both parents had psychological problems in the past and a history of alcohol and drug abuse.  The father also has a significant media profile.  He has been admitted to the Psychiatric Clinic with suicidal ideation.  The mother had a very unfortunate childhood involving sexual abuse. The maternal grandmother seems to have had very poor boundaries, including by having sex with one of the mother’s boyfriends when the boyfriend was 16 years old. 

5. In addition to assessing the parents, Dr S also prepared a psycho-sexual assessment of Mr W.  Obviously, Mr W was not a party to the proceedings and there was no order requiring him to undertake a psycho-sexual assessment. Mr W voluntarily submitted to that assessment. 

6. The result of the assessment is that Dr S assessed Mr W as being a low risk to [X] and [Y] and at a low risk for sexual offending.  The conclusion expressed by Dr S was that there was no indication that [X] and [Y] should not have contact with Mr W. However, Dr S recommended that the mother be present when [X] and [Y] were with Mr W.

7. Dr S noted that Mr W had been married for many years and had two adult children with whom he had ongoing relationships, and the children appeared to be, from Mr W’s reports, psychologically sound. The family report also recommended, notwithstanding that both parents had various deficits, that [X] and [Y] should live with their parents in a nine/five arrangement with the majority of their time being with their mother.

8. The matter came back before the court on 21 September 2018 with the benefit of Dr S’s reports.  However, at that point the father wanted the injunction restraining the mother from bringing [X] and [Y] into contact with Mr W to continue, whereas the mother wanted that injunction to be dissolved.  The parents agreed on that occasion for [X] and [Y]’s time with their father to be increased to alternate Fridays at 5pm to Sundays at 5pm and alternate Thursdays from after school until the following Friday and alternate Tuesdays from after school until the following Wednesday. The court also ordered on 21 September 2018 that an independent children’s lawyer be appointed.

9. The evidence before the court on 21 September 2018 consisted of the father’s concerns and Dr S’s reports.  Given the extent of the father’s concerns, the court considered it appropriate to give the father an opportunity to obtain some additional evidence.  An order was made that each parent file and serve any evidence relating to the effect on children of a parent having a relationship with an aunt or uncle.  What I had envisaged was that there may be some academic articles dealing with that issue.  Neither parent was able to find any such evidence.

10. However, the father was able to obtain a report from a Dr P.  Dr P is from (country omitted).  He is apparently a psychologist who does work substantially similar to work done in Australia by family consultants.  Dr P said that he was not aware of any academic articles on the issue.  He also said, entirely frankly, that he had not been able to interview the parents or [X] and [Y].  He also said that he was unable to review Dr P’s reports because no order had been obtained from the court permitting him to look at them.  He was given a letter of instruction by the father’s solicitor that set out some of the facts of the case. 

11. Senior counsel for the mother said the court should not place any weight on Dr P’s report because under s.55 of the Evidence Act 1995 it was not relevant evidence. Subsection 55(1) of the Evidence Act 1995 provides that:

    The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

12. Senior counsel for the mother said that Dr P’s report could not meet the criteria of relevance because his report was entirely speculative and was based on conjecture, as Dr P had not interviewed the parents or [X] and [Y], and he was unable to refer to any academic articles that dealt with the issue in the present case in general terms.  In the alternative, senior counsel for the mother argued that Dr P’s report should be given very little weight. 

13. The father’s counsel argued that the report of Dr P should be given weight and that it could indeed assist the court. 

14. It seems to me that Dr P’s report can only be of very limited weight.  Dr P was not able to refer to any academic studies that deal with the impact on children of a parent having a relationship with an aunt or uncle.  He has not interviewed the parents in this case.  He has not interviewed [X] and [Y]. He has not read Dr S’s report.  It also seems obvious that Dr P would not have read the affidavits in this case, given that there was no order permitting him to do so.

15. Having said that, Dr P was able to say some things of a very general nature about what he described as potential risks.  They were, for example, that:

    a)[X] and [Y] might be confused and wonder why a parent would have an intimate relationship with a relative;

    b)[X] and [Y] might have a need to have explained to them the nature of their mother’s relationship with their uncle and explore their thoughts and feelings about that relationship; and

    c)[X] and [Y], as they get older, may be at risk of confusion in their own intimate relationships and who it would be appropriate to form such a relationship with. 

16. Dr P also noted that there were known protective factors relating to those issues.  Dr P then spent a good deal of time talking about the issues in relation to boundaries. That issue to a large extent concerned the mother’s serious problems in her childhood connected with her own sexual abuse.  Some of what Dr P then said related to the difficulties that the mother might have because of her own childhood problems and how these could impact on [X] and [Y].  However, Dr S was well aware of those issues and reached his conclusions, notwithstanding the matters raised by Dr P. 

17. Dr P did emphasise that he had no knowledge of the particular individuals in this case.  He also said that he understood that Dr S performed risk assessments.  However, he raised various issues about whether Dr S’s risk assessments would have been adequate, thorough and proper. In its essence, Dr S challenged Dr S’s capacity and expertise.  Those concerns were not emphasised by counsel for the father.  I think we can take it, at least for the purposes of an interim hearing, that Dr S does have the necessary capacity and expertise.

18. The father in submissions today emphasised that Mr W was not on affidavit.  That is so.  There actually have not been very many affidavits filed in this proceeding.  There are two sworn or affirmed by the mother, one sworn by the father and one affirmed by Dr P.  In any event, the real answer to that submission is that Mr W has voluntarily submitted to a psycho-sexual report.  That is a very significant step.  He was exposing himself to the potential for all sorts of criticism.  However, he came through that process without any significant criticism at all. In many ways the psycho-sexual report is of more assistance to the court than Mr W’s own affidavit would have been because the psycho-sexual report is an expert report from an independent third party. 

19. Nevertheless, counsel for the father said that we do not know Mr W’s family background.  In fact, we do have some evidence about that based on the mother’s own family background and based on the reports, albeit not on oath, that Mr W was married for many years and has two adult children with whom he has ongoing relationships and who seem to be psychologically sound. 

20. The father also conceded that Dr P acknowledged that there was no research on the issue presently before the court of an academic nature.  The father emphasised that there were nevertheless risks identified by Dr P.  However, as I have mentioned, the risks that Dr P identified were of a potential, hypothetical nature.  They were not based on [X] and [Y]’s own experience and were not based on any interviews with the parents, [X] and [Y] or Mr W. 

21. The father also emphasised the issues raised by Dr P about boundaries. However, as I have mentioned, Dr S certainly was aware of all the factors that concerned Dr P and expressed his opinion in relation to them.

22. The father submitted that the evidence in this case has not been tested.  That is entirely correct. However, the matter is at an interim stage.  It is not customary for evidence at this point to be tested.  It was argued that dissolving the injunction at this point would be prejudging the matter. However, that is not correct.  What the court does at interim hearings such as this is ascertain whether there is an unacceptable risk based on the evidence that is available to the court at the time. 

23. The father also emphasised the mother’s alcohol problems. As I have said, Dr S was well aware of those problems, and he also spent some time assessing the father’s alcohol and drug issues and his general psychological issues.  Dr S assessed both parents as having moderate parental risk issues.  

24. The father submitted that the court had to weigh up the mother’s convenience in having a relationship with her uncle, as opposed to [X] and [Y]’s best interests.  However, the father did not home in on any particular best interests of [X] and [Y], apart from the potential risks nominated by Dr P in a hypothetical and somewhat speculative manner.

25. When asked whether the father considered that Mr W was a risk for [X] and [Y] in the sense of sexually abusing them, counsel for the father said that the father did not know enough about Mr W to know whether he might sexually abuse [X] and [Y].  However, the fact is that we do have the psycho-sexual report from Dr S which has assessed Mr W as being a low risk in that regard.  That assessment is as low as such assessments go.  Psychologists do not assess people as being no risk at all.  Notwithstanding the father’s fears, there is evidence before the court that Mr W poses a low risk to [X] and [Y] of sexually abusing them.

26. The mother’s senior counsel emphasised that the father had not clearly identified what the risk to [X] and [Y] was, or indeed who might pose the risk.  It is true that some of the submissions from the father blurred the question of whether it was the mother and her possible boundary issues that were the risk to [X] and [Y] or the uncle directly.  Dr S has assessed those risks to be low. 

27. In relation to the risks posed by the relationship between the mother and Mr W, the mother’s senior counsel emphasised that Dr P’s report was essentially conjecture, which I accept it is.  The mother’s senior counsel also noted that Dr S’s report indicated that [X] and [Y] had met Mr W on a couple of occasions and there was no evidence that they were adversely affected in any way by their meetings with their mother’s new partner or her relationship with him. 

28. The family report indicated that the father told Dr S that the mother’s relationship with Mr W was a crime.  As all parties now accept, the relationship is not criminal.  The father also told Dr S that Mr W evidently thinks it is alright to have sex within the family.  Obviously, there are different degrees of family connection. An uncle is not part of the immediate family. 

29. The mother’s senior counsel emphasised the law in relation to the assessment of unacceptable risk and the need for evidence of some description to be made available to the court.  In particular, the mother’s counsel noted Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249; (2004) FLC 93-192; [2004] FamCA 768 at [38] where the Full Court of the Family Court warned about giving weight to expert evidence of a psychiatrist who had not seen the children or the parties. Clearly, the report of Dr P is in a similar position in that Dr P has not interviewed [X] and [Y] or the parents.

30. The mother’s senior counsel also emphasised that Dr P’s report only dealt with potential risks and hypothetical possibilities and generalisations.  The mother’s senior counsel referred to Theophane & Hunt (2014) FamCA 1038, where it was said that there was no material, in that case, from which a conclusion could be drawn that there was a sexually predatory history within the mother’s family (at [114]-[118]).

31. Senior counsel for the mother said that the authorities showed that what the court has to do is identify what the harmful outcome is, assess the probability of that outcome and weigh the risk of that outcome occurring in the short, medium and long-term.  In the present case, the identified harmful outcomes were that [X] and [Y] might have some confusion about who it was appropriate to have a relationship with and have some boundary issues at some point in their lives.  There is nothing before the court to indicate that there is a significant probability of those things occurring.  Dr S did not seem to consider that there was a significant risk in that regard.  Dr P’s evidence was, as I have said, based on generalisations and conjecture.  Consequently, there is nothing at present to say that there is a real risk in the short, medium or long-term of [X] and [Y] being harmed by the relationship.

32. The independent children’s lawyer said the two matters that took this case outside the normal run was that the mother was having a relationship with her maternal uncle and the father has a high media profile.  The independent children’s lawyer considered that Dr S’s recommendation should be adopted, namely, that [X] and [Y] should be permitted to see Mr W in the mother’s presence and that the injunction should be dissolved. 

33. The independent children’s lawyer also noted that the major risk in this case is the same as the major risk in many of the cases that come before the court, and that is the risk to [X] and [Y] posed by the conflict between their parents.  It is very important that the parents in this case recognise that real harm can be done to [X] and [Y] by ongoing conflict between their parents. Conflict does not need to be overt violence or abuse to damage children.  Even continuing litigation can amount to conflict between the parents that could cause [X] and [Y] serious harm in the long-term. 

34. In any event, the independent children’s lawyer also noted that the father had not spoken to [X] and [Y] about the mother’s uncle. The independent children’s lawyer said that the father was deserving of credit for exercising restraint in that regard.

35. The independent children’s lawyer noted that the risks to [X] and [Y] were that they might mimic the type of relationship that the mother was having with her uncle, [X] and [Y] might take their morality from their parents, and [X] and [Y] might be confused.  The independent children’s lawyer thought that those risks were manageable through having appropriate conversations with a psychologist if need be.  The independent children’s lawyer indicated to the court that she would speak to Dr S and ascertain an appropriate person to have those conversations with [X] and [Y]. 

36. The independent children’s lawyer emphasised that there was no evidence of any boundary problems for Mr W and no evidence that [X] and [Y] should not have contact with Mr W.  The independent children’s lawyer emphasised that a significant risk to [X] and [Y] would occur if the media became aware of this matter, and, in particular, the mother’s relationship with her uncle.  The independent children’s lawyer considered that media scrutiny could pose very real risks to [X] and [Y]. However, the independent children’s lawyer did not consider that the risk to [X] and [Y] of the mother allowing them to come into contact with Mr W reached an unacceptable level, provided that the mother was in substantial attendance as recommended by Dr S.

37. It seems to me that, on the evidence that is before the court in this case, there is simply nothing upon which the court could conclude that the risk to [X] and [Y] of the mother bringing them into contact with Mr W, provided that she was in substantial attendance, was unacceptable.  I accept that the relationship between the mother and her uncle is unusual and could raise eyebrows.  However, it is not criminal and it is not, in my view, something that, on the evidence, would pose an unacceptable risk for these particular children. 

38. There are risks facing [X] and [Y] in that both of their parents have moderate deficits as parents.  They both have a history of psychological problems and they both have a history of drug and alcohol abuse.  It seems to me that these things are much more significant for these children than the mother’s relationship with her uncle.  It is also a significant risk for these children that their parents have significant ongoing conflict.  As I have mentioned, conflict between parents is a well known risk factor for children.  If the parents are able to moderate their conflict, that would be very much in [X] and [Y]’s best interests. 

1. Obviously, the court must give paramountcy to the best interests of [X] and [Y]. In determining their best interests, the court has to consider the factors set out in s.60CC of the Family Law Act 1975.  Those factors are largely directed to the amount of time that a child should spend with one parent or another.  It seems to me that there is no real benefit in addressing those factors in the present case.  In my view, it is appropriate that there be orders dissolving the injunction subject to an order that the mother be required to be in substantial attendance when [X] and [Y] are brought into contact with Mr W.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 25 October 2018