Sewell and Anor and Newnham and Anor

[2012] FMCAfam 933

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEWELL & ANOR & NEWNHAM & ANOR [2012] FMCAfam 933

FAMILY LAW – Parenting – whether unacceptable risk of abuse from step-father – whether mother’s reaction to risk of abuse appropriate – alignment of child – role of adherence to (religion omitted) faith – high conflict.

Evidence Act 1995 (Cth), s.140
Family Law Act 1975, ss.60B, 60D, 64(1)(a), 69ZT(3), 69ZV, 100A
Family Reform Act 1995

A. v. A. (1976) V.R. 298
B and B [Access] (1986) FLC 91-758
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Briginshaw v. Briginshaw (1938) 60 C.L.R. 336
Brown and Pedersen (1992) FLC 92-271
Goode & Goode (2006) FLC 93-286
J. v. Lieschke (1987) 162 C.L.R. 447
K v B
Leveque v. Leveque (1983) 54 B.C.L.R. 164
M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 McKee v. McKee (1951) A.C. 352
N and S and the Separate Representative (1996) FLC 92-655
Re C and J
Re G. (a minor) (1987) 1 W.L.R. 1461
Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192
Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318;
S v S [1993] NZFLR 657
TF and JF and Children’s Representative [2005] FamCA 394
V and V [2004] FamCA 1081
Vasser & Taylor-Black [2007] FamCA 547
W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129
WK v SR (1997) FLC 92-787, 22 FamLR 592

First Applicant: MR SEWELL

Second Applicant: MS SEWELL

First Respondent: MS NEWNHAM

Second Respondent: MR NEWNHAM

File Number: NCC 13 of 2011

Judgment of: Altobelli FM

Hearing dates: 12 September 2011, 13-15 June 2012, 31 July – 1 August 2012

Date of Last Submission: 30 August 2012

Delivered at: Sydney

Delivered on: 1 November 2012

REPRESENTATION

Counsel for the Applicant: Mr Davies

Solicitors for the Applicant: Vomina Law

Counsel for the First Respondent: Mr Graham

Solicitors for the First Respondent: Flintoff Lawyers

Counsel for the Second Respondent: Mr Wilkinson

Solicitors for the Second Respondent: Lindeman Lawyers

Counsel for the Independent Children’s Lawyer: Ms O’Rourke

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission of New South Wales

THE COURT ORDERS THAT:

1. There be equal shared parental responsibility.

2. The Child X born (omitted) 2005 live with the Mother.

3. Unless both parents otherwise agree, the Child spend time with the Father:

   (a)Each alternate weekend during school terms from after school on Friday to before school on Monday, commencing on the first weekend following the resumption of school but suspended during school holidays; and

   (b)For half of each of the mid year school holidays commencing from immediately after school on the last day of X’s attendance at school and concluding at 12 noon on the middle day of the said school holidays;

   (c)For half of the end of year school holidays commencing from immediately after school on the last day of X’s attendance at school and concluding at 12 noon on the middle day of the said school holidays;

   (d)On Father’s Day between 10.00am and 4.00pm.

4. In relation to the Father’s time with X:

   (a)Until X attains the age of eight (8) years, the Father’s time at the end of year school holiday periods shall be taken in blocks not exceeding seven (7) days;

   (b)Notwithstanding the orders made above, in each even numbered year X will spend time with her Mother from 2.30pm on Christmas Eve until 2.30pm on Boxing Day;

   (c)The Father will be responsible for all travel associated with a changeover at X’s school.  All other changeovers are to take place at the McDonald’s Family Restaurant closest to the Father’s home.

5. The Mother is restrained from:

   (a)Causing or allowing X to spend time with or communicate with Mr Newnham; and

   (b)Herself spending time with or communicating with Mr Newnham except for the specific purpose of giving effect to the legal and social reorganisation of their relationship brought about as a result of these orders.

6. Both parents are restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child;

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child or permitting any other person to do so.

7. Both parents are to forthwith comply with any reasonable request of the Independent Children’s Lawyer for either them or X to attend counselling or any course of therapy, and they are to diligently attend such courses or therapy and comply with the directions of the counsellor or therapist.

8. When X is in the care of either parent, the other parent shall be entitled to ring her at least once weekly, and unless otherwise agreed, on Tuesday evenings at 7.00pm for a period not exceeding 15 minutes.  The parent caring for X is to do all things necessary to facilitate such telephone communication.

THE COURT NOTES THAT:

1. The Legal Aid Commission is requested not to discharge the Independent Children’s Lawyer until three (3) months after the date of these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 13 of 2011

MR SEWELL

First Applicant

MS SEWELL

Second Applicant

And

MS NEWNHAM

First Respondent

MR NEWNHAM

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about X who is 7 years old.  She presently lives with her mother and step-father who are the respondents in this case.  X’s father and step-mother have applied to the court for her to live with them.  They say that X’s current care arrangements expose her to an unacceptable risk of abuse.

Background

1. X’s father is 29 years old.  He lives with his wife, the second applicant, in a northern NSW coastal town.  They have two daughters of their own, and the father has a son from a previous relationship, Y, living with them.

2. X’s mother is 28 years old.  She lives with her husband, the second respondent, in another northern NSW coastal town.  X lives with them, and they have no other children.

3. In these reasons for judgment the mother’s husband, Mr Newnham, is referred to as the step-father, and the father’s wife, Ms Sewell, is referred to as the step-mother.

4. The mother and step-father apparently had a relationship before she met the father and later married him.  One suspects that the seeds of enmity between the father and step-father were sown at that time, and have flourished into a toxic hatred for each other.  The mother and father separated in 2007 at a time when X was not yet two years old.  By 2008 the mother and step-father had married.

5. In 2007 the parents entered into consent orders that provided for X to live with her mother and spend time with her father.

6. In July 2009 the father asserts that X made disclosures to him about the step-father playing games with her that involved licking each other on various parts of her body, kissing her and placing his tongue in her mouth.  There were subsequent disclosures – the father reported this and later disclosures to the police, and the New South Wales Child Protective Services became involved as did the police.  It is the father’s case that the step-father poses an unacceptable risk of abuse to X and that the mother is unable to protect X from this risk.

7. The father commenced proceedings in the Local Court at Kempsey.  On 23 December 2010 the parents entered into interim consent orders restraining the step-father from having any contact with X.  In response to this the mother and X moved out of their family home and moved in with the maternal grandparents.  On 10 March 2011 further interim consent orders were made the effect of which enabled the mother and X to move back in with the step-father, but on the basis that any contact between them and X be supervised by the mother.

8. Throughout this period contact continued between X and her father, but changeovers seem to have been stressful opportunities for conflict between the father, mother and step-father.

Proceedings in this court

1. After some case management the matter was set down for hearing before me in Newcastle on 12 September 2011.  At that stage the parents had attended a Child Dispute Conference and a memorandum dated 30 May 2011 was the only expert evidence before the court.  On 12 September 2011 the court heard evidence from the step-father and interim orders were made by consent for X to continue to live with her mother, for contact with her father, and a number of other restrictions.  In particular Order 12 states:

   The stepfather acknowledges the applicant father’s objections is restrained from kissing or hugging X in an in appropriate manner and to that extent shall not:

   (a) Use his tongue when kissing the child;

   (b) Refrain from kissing the child on the lips.

2. The court also ordered a limited issues Family Report dealing with the length, frequency and timing of school holiday contact with the father.  As at 12 September 2011 the issue seemed to be contact with the father as opposed to unacceptable risk of abuse by the step-father.  Indeed Order 12 was, the court suspects, a response to comments from the bench after hearing the step-father’s evidence.

3. The case took a somewhat dramatic turn as a result of the release of the first Family Report dated 14 November 2011 prepared by Family Consultant Mr C.  On 30 November 2011 the court appointed an Independent Children’s Lawyer, and set the matter down for further hearing on 19-21 March 2012.  On 1 March 2012 a further Family Report was ordered, the March 2012 hearing dates vacated and new dates appointed on 13-15 June 2012.  On 6 June 2012 the second Family Report was released to the parties.  The evidence did not conclude on the allocated days.  The court heard an application for interim orders on 15 June, and delivered oral (later written) reasons on 18 June 2012.  Orders were made excluding the step-father from any home occupied by the mother and X and limiting nay contact to supervised contact.

4. The evidence was completed on 31 July to 1 August 2012 and written submissions were provided with the last one received 29 August 2012.

The issues

1. This is a case where the real issues did not become apparent until the Independent Children’s Lawyer had been appointed and conducted some of the forensic enquiries that the other parties had either failed to, or declined to do.  By the close of the evidence the issues before the court included:

   a)Whether there was an unacceptable risk of harm to X in her mother’s household arising from her step-father, or alternatively from her mother’s inability to protect her; and

   b)Whether there was a risk of harm to X arising out of her alignment with the mother and her family, and her resistance to spending time with the father; and

   c)The impact on X, and the risk issues pertaining to her, of the religious beliefs as a (religion omitted) that she shares with her mother, step-father, and maternal family;

   d)If there are risks to X, how these risks are best managed in a way that minimises any adverse impact on her of disruption to the main relationships she has in her life.

   Within this broad description of the issues is located a number of other significant related and derivative issues which will emerge from the reasons below.

The competing proposals in final submissions

1. The Independent Children’s Lawyer proposed that X live with her father and have substantial and significant time with her mother but to the complete exclusion of the step-father.  The father and step-mother’s proposal was consistent with that of the Independent Children’s Lawyer with some slight variations to the contact proposal.

2. The mother’s proposal was that there be no restriction on the step-father, and that X’s contact with her father continue as present.  In the alternative, and if the court finds that the step-father does pose an unacceptable risk of abuse to X, the mother indicated a willingness to end the relationship with the step-father, and exclude him from X’s life.

3. The step-father’s proposal was consistent with the mother’s main proposal – that all restrictions on him be lifted, and that contact with the father continue as present.

4. Whereas the Independent Children’s Law and the applicants submit that there is an unacceptable risk to X, the respondents deny any such risk.

The evidence

1. Expert evidence in this case was given by Family Consultant Mr C.  His reports were in evidence.  He was extensively cross-examined on two different occasions.

2. The parents and step-parents provided affidavits and were cross-examined.

3. The maternal grandfather Mr G, and two court Client Service Officers, Ms A and Ms L, provided affidavits and were cross-examined.

4. What purported to be expert evidence by Dr S was led in the father’s case.  Dr S’s report, and the oral evidence he gave on 31 July 2012, was of such little forensic value that the court stopped his cross-examination.  No further reference will be made to this evidence.

5. A substantial quantity of documents was tendered into evidence.

6. The written submissions provided on behalf of the parties were comprehensive and helpful.

The Applicable Law

1. A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:

   92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.

   Unacceptable risk test

   (a) What is meant by “unacceptable risk”?

   93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.

   94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:

   “(i) The reality of sexual abuse

   The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.

   ...

   It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”

   95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:

   “courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”

   96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:

   “In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.

   Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:

   ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

   His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

   No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.

   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) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 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.”

   97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.

   98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:

   “The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-

   ‘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.’ (at page 77,081)

   The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   ...

   It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”

   99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.

   100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.

   101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.

   102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:

   “With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”

   103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:

   “Coleman J, as well as Dr F, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”

   104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:

   “Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”

   105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

   “In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

   This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”

   106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:

   “There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”

   107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:

   “...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”

   108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:

   “Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”

   109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.

   110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:

   “Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”

   111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

   (b) The contact issue

   112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.

   113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.

   114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.

   115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

   In WK v SR (1997) FLC 92-787, 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para.47:

   In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

   In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras.18 and 19:

   18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in

   
   WK v SR

   where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

   19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.

   In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38 and 39:

   38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."

   39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.

   Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.

   45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.

   It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.

   Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:

   At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:

   When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent.  In order to weigh the competing risks, the court should analyse what the risk is.  To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk.  (paragraph 5).

   It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.

Evidence of Family Consultant

1. Family Consultant Mr C has been involved in his capacity as Family Consultant with this matter since 30 May 2011 when he conducted a Child Dispute Conference and provided a Family Consultant Memorandum to Court.  He subsequently provided two further Family Reports, one dated 14 November 2011 and the next one 5 June 2012.  Mr C gave oral evidence and was cross-examined on 14 June 2012, 15 June 2012 and then on the last day of the hearing 1 August 2012. 

2. The Family Consultant Memorandum to Court of 30 May 2011 was in evidence and is uncontentious.  He met with both applicants, and both respondents, but not with the child.  He correctly indicated that the main issue appeared to be whether or not there is an unacceptable risk of harm for X if she was to spend unsupervised time with her step-father, Mr Newnham.  The third point in the memorandum states as follows:

   It is noted that the current interim Court Orders were made By Consent 15 March 2011 inter alia that ‘all time between Mr Newnham and the child be supervised by the mother’.  Mr Newnham and Ms Newnham stated that they believed the Court Orders to mean that X could spend time with Mr Newnham if another adult was present and accordingly they have arranged for the maternal grandmother (or other persons?) to be present when X was with Mr Newnham.  This appears to be contrary to the Court Order.

   This passage is significant because, as it turns out, one of the main issues for the court in assessing the risk to X is to understand the extent to which Mr Newnham and X’s mother, Ms Newnham, accept that there is a legitimate risk and their capacity to comply with orders of this court the purpose of which is to manage that risk.

3. The first Family Report dated 14 November 2011 was expressed as a limited issues report to assist the court in determining the parenting arrangements for X, a tentative finding having been made on the first day of evidence (12 September 2011) that there was no unacceptable risk to X, on the evidence before the Court at that time.  At that stage, therefore, the case presented primarily as one involving high levels of conflict between the parents, and the focus was on crafting appropriate parenting orders to facilitate contact in what was, even at that early stage of the proceedings, undoubtedly a toxic context.

4. The report nonetheless records the father’s continued belief that there was a risk of harm to X if left unsupervised with Mr Newnham, and the mother and Mr Newnham’s continued belief that there was no need for supervision.  As it turns out, the report, even though it was of limited scope, raises some quite serious issues.  Paragraph 12 sets out the Family Consultant’s opinion about X’s views:

   X expressed a clear view that she wanted to live with her mother and Mr Newnham (whom she consistently refers to as ‘Dad’ or similar).  X appeared keen to volunteer that she does not like visiting with Mr Sewell (whom she consistently referred to as Mr Sewell) and when asked to explain this simply stated that he was ‘mean sometimes’ and when pushed for reasons, X provided very mild general criticisms about Y or Ms Sewell or to a lesser extent about Z or about Mr Sewell telling lies about Mr Newnham and trying to get Mr Newnham in trouble and make him go to gaol so that X would live with Mr Sewell.  It is noted that X’s affect did not indicate that she had any significant concerns in Mr Sewell’s household.  When later asked about what she did when visiting with Mr Sewell, X stated that she sometimes did not want to go because she wanted to play with her friends or do things with her mother and Mr Newnham.  At other times X spoke in a relaxed and happy way about various activities she enjoyed whilst spending time in Mr Sewell’s household.  X was also able to comfortably talk about activities she enjoyed in her mother’s household and stated that she did not have any favourite things to do and that she mostly went to (religion omitted) meetings or went (omitted) with Ms Newnham and Mr Newnham or played with her friends and cousins.

5. It is noticeable that the Family Consultant observed the difference between what X was saying about her time with her father and her affect.  In paragraph 13 of the report the Family Consultant records what X said after he asked her more about her involvement in the (religion omitted) religion:

   When asked about her religion X stated that she was a (religion omitted) and comfortably gave a detailed response to what that meant (for her) and was able to comfortably describe daily practices within Ms Newnham’s household as well as volunteering in detail what would happen at (omitted).  X explained that (religion omitted) people would live for eternity and that everyone who was bad – being everyone who was worldly (all people that were not (religion omitted)) who celebrated Christmas and birthdays and similar would die.  X explained that all of her family were (religion omitted) and when questioned about Mr Sewell, X explained that he was a worldly person (and volunteered) as was Ms Sewell, Y, Z and A and that Mr Sewell was only half her family and that her mother and Mr Newnham were her full family.  When subsequently discussing the different views that she had been given by her mother (and Mr Newnham) and her father (and Ms Sewell) X was totally dismissive of the possibility that Mr Sewell’s view may be more accurate and confidently stated that what her mother and Mr Newnham had told her must be true because (religion omitted) don’t lie and therefore Mr Sewell must be lying (although she was quick to note that not all worldly people lied and not all worldly people were bad and gave examples of her neighbour and a friend from school).  X then volunteered examples of Mr Sewell lying including saying things about Mr Newnham in an attempt to get him in trouble.  X summarised the main differences between (religion omitted) and worldly people as worldly people were mean sometimes and (religion omitted) were nice.

   As it turns out, this becomes a very significant passage of evidence.  No part of this evidence was challenged, or challenged successfully, insofar as it relates to it being an expression of what X said and appears to believe.  I accept this evidence as accurately reporting what X told the Family Consultant in relation to her faith as a (religion omitted), and an accurate statement of what she believes, at her age.

6. The Family Consultant made the following observations at paragraph 15, in terms of X’s interactions with the others around her:

   During formal observations, X was initially very standoffish.  X tended to play with A and sit by herself rather than with Mr Sewell or Ms Sewell.  After four minutes, Mr Sewell sat next to X and they chatted and played happily including frequent incidental mutual touching and X was obviously happy to be with Mr Sewell and very comfortable with him.  X happily played with A and Mr Sewell and chatted comfortably with Mr Sewell and to a lesser extent Ms Sewell.  X remained standoffish with Ms Sewell throughout the 30 minute observation and their interaction could be characterised as neutral rather than negative in any way.  When it was time for Mr Sewell, Ms Sewell and A to leave, Mr Sewell requested a cuddle which X warmly gave.  X subsequently initiated hugs with Mr Sewell and A and was very friendly in her verbal goodbyes with Ms Sewell.

   The Family Consultant goes on to describe the observation with all relevant parties as being “very comfortable”, “happy and relaxed”.

7. At paragraph 16 the Family Consultant records observations reported to him by third parties.  This evidence is also significant and, as it turns out, the observations recorded below are confirmed in affidavits by the parties in question who were, in fact, cross-examined.  Paragraph 16 notes:

   It is noted that prior to the formal observations occurring, the child care officer and administration officer had briefly spoken with the Report Writer and advised that throughout the day they had each separately become uncomfortable about some aspects of the behaviour of Mr Newnham and some aspects of his interaction with X.  No details were discussed at that time.  The following day the Report Writer spoke separately with the child care officer and the administration officer who advised that on several occasions Mr Newnham appeared to go out of his way to unnecessarily take control of a situation and assert his dominance over Ms Newnham and X (such as Mr Newnham answering simple questions that had been asked of Ms Newnham or Mr Newnham walking across a room to supervise Ms Newnham’s filling in of the sign in register or Mr Newnham being very resistant to allowing X to be escorted to the bathroom by the child care officer to wash her hands and insisting on following and loitering nearby).  Concerns were also raised that Mr Newnham was cradling X in his lap with her head resting on his shoulder ‘like she was a baby’.  The child care officer felt uncomfortable and chose to repeatedly pop in and out of the child care room while Ms Newnham was being interviewed by the Report writer.  It is noted that neither the child care officer or the administration officer has any knowledge of any of the issues in this matter.  It is also noted that it is very unusual that a child care officer or administration officer would approach the Report Writer with such concerns.

8. The Family Consultant’s evaluation is found at paragraphs 18-20 inclusive.  These are significant, and are reproduced here:

   X was aged 18 months when her parents separated and she has no recallable memory of when she lived with her parents.  X has lived predominantly with her mother post separation and from May 2008 (when aged two years and nine months) with Mr Newnham as well.  Ms Newnham has actively encouraged and supported X referring to Mr Newnham as ‘Dad’ or similar and simultaneously promoted and encouraged X referring to her biological father as ‘Mr Sewell’.  X has readily accepted Mr Newnham as her father and correspondingly that Mr Sewell is somewhat less than her full family.  These views appear to be strengthened by the religious differences between the parents with X identifying strongly as a (religion omitted) and defining her mother and Mr Newnham as being (religion omitted) and her full family and defining her father and Ms Sewell as not being (religion omitted) and her half family.  X’s religious beliefs, including her developmentally immature and naïve over generalisations such as (religion omitted) don’t lie and worldly people do lie appears to strengthen her alignment with her mother and Mr Newnham and against her father and Ms Sewell.

   Ms Newnham appears to have been happy to quickly replace X’s biological father with a new father figure and now consistently presents Mr Newnham as being X’s actual father.  X holds a very strong belief that Ms Newnham does not want X to spend any time with Mr Sewell whom X refers to as ‘Mr Sewell’.  X is strongly aligned with her mother and Mr Newnham and appears very eager and willing to please Ms Newnham and Mr Newnham.  X also accepts without question that any information that Ms Newnham or Mr Newnham tell her must be the truth and that if there is any conflicting information or disharmony between either her mother or Mr Newnham and Mr Sewell, then Mr Sewell must be lying.  It is not at all surprising that Ms Newnham reports that X tells her negative information about the time that X spends in Mr Sewell’s household as it would be all but impossible for X to report positive (or even neutral) things when X believes that Ms Newnham does not want X to spend any time in Mr Sewell’s household. 

   Mr Newnham expressed a strong view at interview that he was at the head of his household and as such it was his right and his responsibility to be involved in discussions and decision making regarding X.  Ms Newnham is accepting of this position.  Mr Sewell finds Mr Newnham’s insistence on being involved in parenting matters regarding X as unnecessary and inappropriate.  Mr Sewell believes Mr Newnham has admitted acting indecently with X on a number of occasions and does not acccept Mr Newnham’s statements that he was not aware that his behaviour was sexual in nature or inappropriate and further Mr Sewell does not believe that Mr Newnham has stopped or will stop this inappropriate behaviour.  Mr Sewell believes that X needs to be protected from Mr Newnham and further that Ms Newnham is unwilling or unable or both unwilling and unable to provide such protection for X.  Mr Newnham is frustrated at what he believes are Mr Sewell’s ongoing campaign to discredit him and believes that Mr Sewell’s repeated notifications to Human Services and the resulting JIRT involvement is very upsetting and unnecessary for X.  It is noteworthy that both Mr Sewell and Mr Newnham point out that the subpoena material and also the evidence recently given as part of this matter vindicate their respective positions.

9. The evaluation raises issues about X’s alignment with her mother and stepfather, and the significance of the religious beliefs held by her mother and stepfather, as well as by X herself, as compared to that of her father.  The Family Consultant was concerned about the extent to which Mr Newnham, X’s stepfather, appears to have replaced the father as X’s biological father.  There are emerging themes about the mother’s failure to support the father’s relationship with X.  Another major theme is whether the stepfather’s perceived role as head of the household was an appropriate one in the context of X’s relationship with her father.

10. The Family Consultant’s recommendations are found at paragraphs 21 to 24.  In short, Mr C recommended that if the court finds that X is at an unacceptable risk of harm from Mr Newnham, then X should live with her father.  In this situation, however, this would “involve an enormous change for X and she is likely to require very long-term counselling to assist her through what would be a monumental emotional adjustment”.

11. However, if the court considers that X is not at an unacceptable risk of harm from Mr Newnham, then it would be appropriate for her to continue to live with her mother, and Mr Newnham, but spend significant and substantial time with her father.

12. The Family Consultant recommended that irrespective of where X were to live, it was important that she be encouraged to refer to her father as such and not as “Mr Sewell”.  The Family Consultant also recommended a full Family Report.

13. In the circumstances, the court had no hesitation in ordering a full Family Report.  At paragraph 18 of the report dated 5 June 2012 the Family Consultant records the information provided to him by Mr Newnham, and otherwise available to the Family Consultant by way of subpoenaed information, about Mr Newnham’s mental health and criminal record.  This passage also becomes significant in cross-examination so it will be reproduced:

    Subpoenaed information indicated that Mr Newnham has a very long history of psychiatric health problems and involvement with counselling, psychologists and psychiatrists including diagnosis of anxiety in 1992 and depression and paranoia traits in 1996, anxiety related insomnia in 2008.  In 2008 Mr Newnham was having angry aggressive thoughts and suicidal thoughts and in 2010 was feeling anxious and depressed Mr Newnham advised that in 1997 he was convicted of improper use of telecommunication equipment.  Subpoenaed information indicated that in 1999 Mr Newnham was also convicted of behaving in an offensive way in a public place.

14. As it turns out, and after hearing all of the evidence, the court will find that Mr Newnham’s disclosure about these matters was minimalist, and that the Family Consultant did not have before him, at the time of the report, relevant information that would inform the risk assessment process.  The Family Consultant, of course, met with X and he says in this regard at paragraph 21:

    X confidently presented her views with extremely minimal prompting and her views had changed very little in the five months since 9 November 2011 when she was last spoken with by the Report Writer.  X is very strongly aligned with her mother and step-father and has a negative view of her father and step-mother in so far as any matter is concerned where her parents (and their respective partners) are in disagreement.  X’s views are both driven by and reinforced by her naïve views on spirituality and religion.  X believes that (religion omitted) people are good and don’t lie and (some) worldly people (anyone who is not a (religion omitted)) do lie.  It is a logical consequence of this belief system that if her parents are in dispute about any matter, her mother and step-father must be telling the truth and her father and step-mother must be lying.  X has the view that her father has lied to deliberately get her step-father into trouble and understandably X is angry with her father because of this.  It is noted that X generally speaks positively about specific aspects of her interaction with her father and his household and it is mainly in broad general comments that she is critical of him and his household.

    This is another important piece of evidence from the Family Consultant.  As it turns out, the court will accept that in view of all the other evidence there is a complex link between X’s naïve religious beliefs and a greater risk to her in her mother’s household.

15. The Family Consultant goes on to record concerns about X continuing to refer to her father as “Mr Sewell” rather than as her father, but calling her step-father “Dad”.  The Family Consultant states at paragraph 22:

    X considers her stepfather as part of her full family because he is (religion omitted) and considers her father to be only half family because he is not (religion omitted).

16. The Family Consultant’s evaluation commences at paragraph 25.  He notes some important limitations in the evidence available to him, eg, the absence of records from a psychologist who X had been consulting, the absence of material relating to Mr Newnham’s mental health from his treating practitioners, the absence of material from the (religion omitted) Church about historical incidents involving the stepfather, as well as the absence of subpoenaed material about the father’s previous treating mental health professionals.  Nonetheless, he noted that X continued to be closely aligned with her mother and stepfather, and this was based on “her naïve beliefs about religion”.  He was of the opinion that the mother, and Mr Newnham, continue to encourage X to refer to her stepfather as her father and “to refer to her father as something less than a full member of her family”.  He had little doubt that X was well aware of the ongoing tension between her father and stepfather, and that X continued to express negative feelings about her father.

17. Mr C’s recommendations commence at paragraph 33.  His recommendations again depend upon whether or not the court finds that X is at an acceptable risk of harm from Mr Newnham.  He makes further detailed recommendation about contact.  This will be discussed in greater detail later in these reasons.

18. It is therefore very clear from the Family Report that the Family Consultant’s recommendations depend on the court’s finding about unacceptable risk of abuse to X.

19. When the Family Consultant gave oral evidence on 14 June 2012 it is clear that the Independent Children’s Lawyer was very keen for him to identify the nature of the risk to which X would be exposed if she remained primarily in a household consisting of her mother and stepfather, Mr Newnham.  Mr C’s answer commences at line 45, page 17 of the transcript, and concludes at line 23 on page 18:

    The risk, as I see it, is that the relationship that X has with significant others is such that she is unlikely, in my view, to disclose inappropriate behaviour or situation or circumstances that she may feel uncomfortable because of her past experience and because of her belief systems regarding the behaviour of people of the (religion omitted) faith compared to people who are not of the (religion omitted) faith.  X has had an experience of raising a concern with a trusted adult, her father, and as a result of her raising that concern or the feelings that she had, a number of things have occurred and she has summarised those as people making things up about her step-father and him being in trouble when he had done nothing wrong.  It’s my view that X is at more risk than any other child on the basis that she is largely isolated.  She is in no way geographically isolated, she attends a public school with many children, she engages in the community, but her belief system is such that she places greater value and worth on the statements by those within the (religion omitted) faith as opposed to those without - sorry, outside the (religion omitted) faith.  I think it would be very difficult for X to show what she believes is appropriate loyalty to her family - and by family for X, that means her mother and her step-father - if she was to disclose information that may get them in trouble, in her mind.  So I think it places her at more risk than any other child.  In addition, irrespective of what the motives may or may not have been for past behaviours, X has been exposed to behaviour from her step-father, who she considers to be her full family, as opposed to her biological father, who she considers to be her half family.  She has been exposed to behaviour that - and been told that that behaviour is okay and right and normal and not a problem and not anything wrong, where it’s my view that that behaviour that she was exposed to is not appropriate or okay.  So on that basis, I would think she is at more risk than any other child.

1. Mr C then said a short while later:

   I think it’s much less likely that she would risk getting her stepfather or someone else into trouble by disclosing something that she felt uncomfortable about. 

   I then said to him:

   So it’s almost like, as a result of past events, she may have become conditioned not to disclose in future.  Is that what you’re saying?

   The Family Consultant replied: 

   That’s exactly what I’m saying, your Honour.

   (Transcript, page 18, lines 34-39.)

2. As the Family Consultant’s evidence in response to questions by the Independent Children’s Lawyer continued, it seemed that he was cautious and, therefore, uncertain about what the court might describe (they are not his words) as the stepfather’s selective disclosure of information relating to his mental health history.  The Family Consultant explained that an adult’s mental health and general functioning was a relevant consideration on the issue of assessing the risk of harm to a child.

3. He was asked questions about his view about his opinion that X was closely aligned with her mother and stepfather.  He confirmed his opinion and, indeed, appeared to have no doubt that X knew what her mother’s views were about contact with the father and that her mother did not want X to spend time with her biological father (transcript page 23, lines 28-32).

4. At page 24, lines 33-40 Mr C again describes the risk to X, this time in the context of there being no change to her living arrangements:

   I’m saying that given the dynamics of households and given X’s current relationship with each of her parents and other significant persons the risk in common terms is that it will become too difficult to move between the households and she will make a choice and I am very confident that if she was forced to make a choice at this stage she would choose to live with her mother and step-father who she believes to be her full family because they are (religion omitted) as she is and she would choose not to live with her father and step-mother because they are worldly people and not her full family, they are in fact her half-family.

5. The following passage is also significant, in the court’s opinion, because of later events.  The following exchange took place between the Family Consultant and myself at page 25 transcript lines 4-14:

   But I may ask again Mr C based on all the information you’ve seen is there any evidence of her, for example, not going to contact, resisting going to contact when you’ve looked at the affidavits of both sides in this case, have you seen evidence that supports a concern that today she is resisting contact?

   ---     Yes, X’s view that this matter before the court is a matter between her father and her step-father.  They don’t like each other.  They have different views and it’s X’s belief that where there is a discrepancy between those views by those two men that her step-father would be the one telling the truth and therefore her father being the one lying.  Now, whether that has manifested yet in X voting with her feet if I could use that term, the risk is very real and strong that that’s exactly what will occur when she is of an age where she feels the confidence to do exactly that.

6. It is clear that as at 14 June 2012 that the Family Consultant was concerned about the risk of X “voting with her feet … when she is of age where she feels the confidence to do exactly that”. 

7. At page 26 of the transcript there is a passage in which I ask the Family Consultant to explain the potential impact on X of reversing the existing custodial arrangements:

   Can I ask would you comment along the same lines of the impact on X if I take her away from her mother and step-father and place her in her father’s care?

   ---     Yes, if she maintained the current belief system that she has then it would be extremely difficult for her.  Not only would she – in the identical or reverse circumstances where she had no relationship with her parent – my earlier comments weren’t specific to one or other parent.  The comments I make about the disadvantages of children not having a relationship with a parent refer to both parents but for X at the moment given that her views are so closely or that – I beg your pardon, given that X is very closely aligned with her mother and step-father and that her beliefs are so rigid and inflexible regarding religious matters then it would be very difficult for her to be living in a household that didn’t concur with her current beliefs and I think I indicated in my report that if that was the case then X would benefit from ongoing counselling and support to assist her to make what would be a massive adjustment. 

8. Mr Davies, counsel for the father, cross-examined the Family Consultant along similar themes.  Mr C confirmed that X had absorbed the mother’s views and that that was the result irrespective of the means used to reach that situation.  The Family Consultant confirmed that he had not had access to various records about the father’s mental health that had been produced on subpoena since the date of preparation of the second Family Report.  After having had the updated material made available to him, Mr Davies elicited the following evidence commencing at page 34 line 36 and concluding at page 35 line 5:

   Now, having read now all that material which you didn’t have before, are you able to give us any opinion in relation to whether or not you have any concerns as to whether that history, over a period of years, caused you some concern?

   ---     It causes me significant concern.

   And can you explain what that concern is, please?

   ---     Well, firstly, Mr Newnham failed to disclose that information to me, so there’s the possibility that there is other information that Mr Newnham may not have disclosed, or misled me in some way, so I’m cautious about relying upon the statements that Mr Newnham has made to me.  If Mr Newnham is still experiencing the distress that’s evident in those documents that I read, that causes me some concern.  There were several references in the documents to Mr Newnham’s negative views about mental illness, and his strong reluctance to disclosing mental illness or issues of mental health to other people.  There are several references to Mr Newnham not following up with recommended treatment, and all of those things cause me concern.  If Mr Newnham’s mental health currently or at some stage in the future was to be poor, I would be concerned as I would of anyone in a household with children, because that would impact on their ability to parent.

9. Interestingly, in cross-examination by Mr Graham, counsel for the mother, the Family Consultant explained that the risk arising out of Mr Newnham’s past mental health problem was that his demonstrated reluctance to disclose this information, together with the evidence suggesting he failed to follow through with recommended treatments, suggested that if he experienced mental health problems in the future he might, once again, be reluctant to disclose, or reluctant to follow through (transcript page 35, lines 19-30).

10. The Family Consultant continued to give evidence on 15 June 2012.  In a passage at page 42 line 26 to page 43 line 15, I sought to clarify some of the evidence that he gave in cross-examination:

    HIS HONOUR:   Mr C, just a couple of questions from me if I may.  During cross-examination by Mr Graham, you made a comment to the following effect.  You said that there are some aspects of her personality – that is, referring to X – that are not in the usual range.  Do you recall making that comment?‑‑‑Yes.

    Can you tell me what you meant by that, please?‑‑‑X’s views on religious matters are such that it influences the way that she views other people including her family and it influences the relationships that she has with others including her family.  The influence is of a degree that is significantly greater than what would be usual or common in other children her age.

    Thank you.  Thanks for that.  And, again, in cross-examination by Mr Graham and now we’re talking at about probably 4 o’clock yesterday afternoon.  You were asked a question to the effect you don’t disagree with the JIRT findings and you said words to the effect, “Some of their findings I would have a different view”?‑‑‑Yes.

    Do you recall that interchange?‑‑‑I do.

    What do you mean by, “I have a different view”?‑‑‑My recollection is that the JIRT officers formed a view that Ms Newnham had acted in a protective and appropriate way and would do so if there was any need to protect X from Mr Newnham.  I disagreed with the JIRT findings in that regard.  I don’t believe Ms Newnham would do so if there was a need to do so.

    So are you saying that you have concerns about whether Ms Newnham would intervene to protect X from inappropriate by Mr Newnham?‑‑‑Yes.

    What makes you say that, Mr C?‑‑‑Ms Newnham indicated to me that she didn’t believe that Mr Newnham had done anything wrong and she indicated that she believed that this was simply Mr Sewell attempting to stir up trouble and – not my words, not hers but – mischiefly [sic] cause disharmony because of Mr Sewell’s negative feelings toward Ms Newnham.

    Which might possibly be interpreted as minimising the nature and extent of the risk to X?‑‑‑It is my view that Ms Newnham has minimised the seriousness of the behaviour that has occurred and, therefore, minimised the potential risk.

11. In view of the evidence that the Family Consultant gave in response to questions from the court itself, raising issues about the mother’s capacity to protect X, further cross-examination was allowed.  In further questioning by Mr Graham, the mother’s counsel, the Family Consultant emphasised his concern about the mother’s “future protective behaviour … outside of the gaze of the court”.  (page 45 lines 20-21).  He confirmed this concern about the mother’s capacity to act protectively once the proceedings were concluded because of his assessment that “she does not believe that there’s any risk” (transcript page 46 lines 23-33).

12. Consistent with the theme of the mother’s capacity to act protectively, he was asked questions about the mother’s compliance with orders for supervising X’s contact with the stepfather, and the very issue raised at point 3 of the Family Consultant Memorandum to Court dated 30 May 2011.  At a passage in the evidence at page 54 of the transcript lines 9-32, Mr C explains that further:

    So what did she tell you?‑‑‑Well, words to the effect that X hadn’t been alone with Mr Newnham and that if ever the mother was not there, then there was another adult there and Ms Newnham was explaining, you know, how difficult and awkward that was for their family and how disruptive it was.  Ms Newnham was offering this information as part of her account of the impact of the orders on herself and it was an unpleasant and difficult thing for her.

    What she said you, was it not, that she was not on all occasions supervising the time that X spent with Mr Newnham ­ ­ ­?‑‑‑That’s right.  Words to that effect, but yes that was clearly the thrust of the comments.

    You’ve – in answer to Ms – sorry, his Honour’s question about why you would consider that Ms Newnham would not intervene to protect X from Mr Newnham, you said it was because she didn’t believe that Mr Newnham had done anything wrong and it was simply because trouble was being stirred up by Mr Sewell?‑‑‑Yes, certainly words to that effect.

    Words to that effect.  Would you agree that another reason why Ms Newnham may not be protective of X in relation to Mr Newnham, is because of the role that Mr Newnham plays in the mother’s household, and I’m referring particularly to your first report and paragraph 20 of your report, where you’ve referred to Mr Newnham’s expression that he was the head of the household?‑‑‑Yes, that partially influences my thinking in regard to whether or not Ms Newnham would – sorry.  Yes, that is a factor in my thinking about whether Ms Newnham would act protectively or not.

13. Mr C then, finally, gave evidence on the last day of the hearing, 1 August 2012.  One of the major themes of his evidence on this day was the impact on risk assessment for X of her stepfather’s selective disclosure of past matters.  For example, the Independent Children’s Lawyer asked Mr C what would be the potential significance of findings that the stepfather’s 1997 and 1999 convictions had sexual elements to them.  Mr C agreed this was a relevant detail but would not criticise the stepfather for failing to disclose, particularly in circumstances where he did not ask for details about the offences.  Nonetheless, he insisted that if it is the case that the convictions have a sexual element to them, it is relevant to risk assessment.  This was potentially exacerbated if the stepfather was denying that his actions in the context of these convictions had a sexual element to them.  I record here that, as it turns out, and after considering all of the evidence, I accept that both the stepfather’s 1997 and 1999 convictions did have elements of inappropriate sexual behaviour.  In any event, the Family Consultant emphasised that if the stepfather was denying the sexual aspects of these convictions, it raised questions not just about his honesty but about his ability to accept responsibility for past actions, his understanding of wrongdoing, about his capacity to identify and maintain boundaries between appropriate and inappropriate sexual behaviour and that, in any event, a person’s past behaviour was a strong indicator of future behaviour.  Nonetheless, and the Family Consultant was quite categorical about this, there were no direct links between 1997 and 1999 criminal convictions with sexual aspects to them, and a risk of harm to X.

14. The Family Consultant was asked to comment further particularly in relation to the evidence of what was submitted to be an inappropriate cuddle of X by her stepfather in the context of the Family Report interviews.  The Family Consultant said it was not a usual pose for a child of that age, and that he thought it was entirely reasonable for Ms A, who had observed that behaviour, to be concerned by it.  He emphasised, however, that the behaviour viewed in isolation was not of concern and it only became of concern in the broader context of the issues raised in this case.  The Family Consultant was emphasising the totality of the evidence which informs the court’s finding about unacceptable risk of abuse, and not isolated factors.  All of the matters referred to above increased the risk.  The risk of abuse to X was increased in view of her stepfather’s past mental health history, particularly if his mental health deteriorated in the future.

15. The Family Consultant was then asked to comment on the possibility that the mother would change the nature of her relationship with Mr Newnham and the extent to which this would reduce the risk to X.  He explained that if the mother were to physically separate from Mr Newnham but not end the relationship, he doubted if the marriage would survive and, in any event, the risk to X is that she would be wondering why this was happening and could potentially blame herself, as well as possibly both her mother and father for this.  And if, however, the mother ended her relationship with the stepfather, then provided the mother did so as a consequence of unacceptable risk of abuse, then this would be appropriate protective behaviour from her part, though a very significant change in X’s life, because of the importance to her of her stepfather.

16. The court finds the Family Consultant’s evidence to be both convincing and useful in terms of informing the assessment of risk process.  The court accepts Mr C’s evidence.  Nothing that was put to him in cross-examination detracted from the evidence he gave.  Ultimately, however, whether or not there is an acceptable risk of abuse to X depends on findings the court makes about the other evidence before it.

Mr Sewell: Applicant Father

1. The applicant father swore two affidavits (6 December 2010 and 31 March 2011) and was cross-examined on 13 and 14 June 2012.  His affidavits are quite brief.  He sets out his concerns arising from the disclosures that X made to him about her “stepfather kissing her and placing his tongue in her mouth, biting and kissing her on her top inner thighs, playing games that include trying to touch each other’s genitalia…” (affidavit 6 December 2010, para.2).  He proposed that X live with him on the basis that he could protect her properly, something the mother was not doing.  He gives evidence about his report to the Police in 2009 and 2010 arising out of X’s disclosures to him.  Indeed documents tendered in evidence indicate that his first report of X’s disclosures were on or about 10 July 2009.  The clear focus of the father’s affidavit evidence is to raise concerns about X’s safety and wellbeing, and that this should precipitate a change in where X lives.  Curiously, however, given that his proposal was for X to live with him, there is a notable absence of evidence about what life would be like for X in the father’s home.

2. In cross-examination a number of matters soon became quite clear.  Based on the father’s own evidence his relationship with the mother is a poor one, manifested by low trust, high conflict (especially at changeover, and in X’s presence) and low ability to communicate.  It was clear he had not really thought through the implications on X, and on the father’s own household, of X coming to live with him.  For example, whilst accepting that his son Y suffers from a number of serious behavioural problems, he showed no insight into the impact on both X and Y of X coming to live with them.  The strongest impression formed in the father’s evidence was of his deep antipathy for Mr Newnham, X’s step-father.  He agreed that he had a lasting, deep-rooted hatred for Mr Newnham, and that he was convinced of the truth of X’s allegations about him.

3. In cross-examination it also became apparent that the father had not been forthright about his own past mental issues.  He found the separation from the mother very stressful.  The fact that the mother re-partnered with Mr Newnham created intense anger issues, the management of which was problematic.  The father demonstrated that he could be controlling (eg. in unilaterally retaining X contrary to the Orders), manipulative (eg. in making a report to JIRT four days after Interim Orders were made by the Court in 2011) and lacked insight into X’s needs (eg. allowing arguments to occur in X’s presence).

4. The court was surprised to learn that the father had no concerns about X’s involvement in the (religion omitted), given the concerns that Family Consultant Mr C expressed in this regard.  The father was himself a (religion omitted), but is no longer so.

5. Whilst the father presents himself as the person who, together with his wife, would best meet X’s needs, the proposal lacks detail, shows little realistic consideration of the impact of this on X and others around her, and seems to be premised on this being the only way to protect X from harm.  The situation is in fact much more complex. By the final day of hearing it was clear from the evidence that X was demonstrating disconcerting behaviour the effect of which was to resist contact and possibly reject the father.  The father did not demonstrate that he had the parenting capacity and insights to be able to manage this.  Indeed, whilst the father expressed concerns about whether the mother was facilitating X’s relationship with him (a concern I find was based on fact), he did not provide much reassurance that he would be able to facilitate X’s relationship with her mother if she lived with him.

6. The father’s proposal, therefore, viewed from the perspective of the father’s own evidence, raises many difficult but unresolved issues.

Ms Sewell: the step-mother

1. X’s step-mother swore an affidavit on 25 August 2011 and gave evidence on 31 July 2012.  I found to be the most impressive of the lay witnesses in the sense that she demonstrated more insight into X’s needs than the father, and appeared not to have invested in the parental conflict to the same extent as X’s parents and step-father.  She too has suffered from past mental health issues, and clearly needs to focus her efforts on her son Y who has severe emotional and behavioural issues.  The court finds that Ms Sewell would be a willing co-parent to X should the court decide that X live with her father.  However the step-mother probably minimised the impact on her, the father, Y and X herself, of X living with them.

1. Ms Sewell gave quite worrying evidence of changes she has noticed in X’s behaviour over the six week period before 31 July 2012, the day she was giving evidence.  She described X becoming inconsolably upset and distressed during contact, especially at the beginning.  This behaviour includes hyper-ventilating and dry-retching.  She described X as sad, wanting her mother and saying words to the effect “I want this to stop…I do not like the fighting…I know you have been to court”.  This evidence is consistent with the mother’s own evidence about a change in X’s behaviour in recent times.

Ms Newnham – respondent mother

1. The applicant mother swore two affidavits in these proceedings, on 11 February 2011 and 1 September 2011.  Her first affidavit contains much biographical and background material.  She deposes, however, to her relationship with the father not being a happy one, as he had a bad temper, exacerbated by drinking, and was often violent towards her.  She deposes that in May 2007 they entered into consent orders in relation to X, whereby X was to live with her, and spend time with Mr Sewell.  Both parents were living in (omitted) until the end of 2008, when the father moved to (omitted) to pursue employment.  This created logistical problems in terms of contact.  The mother deposes that, initially, she drove halfway to (omitted) where changeover took place, a distance of about 54 kilometres from (omitted).  The parents later agreed to change the transport arrangements so that the father picked X up from (omitted), and then the mother collected her from (omitted).  The distance was about 115 kilometres, or an hour and 10 minutes by car each way.

2. The mother deposes that it was in about July 2009 that she first became aware of the father’s allegations against Mr Newnham, arising out of X’s disclosures to him.  This occurred as a result of a visit by representatives from the Department of Human Services who interviewed both the mother, and Mr Newnham.  As the allegations were not taken further the mother deposes to life simply continuing in the family that consisted of X, Mr Newnham, and herself.  She noticed nothing unusual in terms of the relationship between X and Mr Newnham and indeed deposes it to being a close one.

3. The mother then deposes to hearing further from the Department of Human Services in November 2010 as a result of what, she understood, were further allegations made by the father.  Later that month she was informed by the Department that no action would be taken.  However, the current proceedings were commenced in December 2010.  When the matter first came before the Local Court at Kempsey she entered into consent interim orders on 22 December 2010 to the effect that Mr Newnham have no contact with X, pending the transfer of the matter to the Federal Magistrates Court in Newcastle.  At paragraph 37 the mother states:

   I consented to this order as I always put X first and understood that this was my only real option in the circumstances on such short notice.  I do not believe that the allegations made by Mr Sewell are true.  I trust Mr Newnham with X and believe that he would not do anything to harm her.

   She explained that as a result of those orders she and Mr Newnham lived separately, causing strain on their relationship, and also having a serious effect on X who clearly was missing Mr Newnham.

4. Paragraph 25 of the mother’s first affidavit is significant.  She deposes:

   Mr Newnham and X get along well.  At some point early in my relationship with Mr Newnham I heard X refer to Mr Newnham as “dad”.  This is how she now refers to Mr Newnham.  When she is at our house X refers to Mr Sewell as “Mr Sewell” even though we have tried to discourage this.

   Later in the affidavit the mother seeks to normalise this by explaining that X has spent more time in her life with Mr Newnham, than with her father.

5. Amongst other things the mother’s first affidavit is significant because it records that in February 2011, and notwithstanding allegations made and communicated to her in July 2009 and November 2010, she had no concerns about X’s safety in the presence of her stepfather.  Indeed as the extract from paragraph 37 of her affidavit indicates, she did not believe that the allegations made by the father were true.  The clear inference here is that the allegations were a fabrication of the father and were not disclosures made by X.

6. In her affidavit of 1 September 2011 the mother deposes that on 16 March 2011 consent orders were made in the Federal Magistrates Court at Newcastle discharging the Local Court orders and with her agreeing to supervise the time between X and her stepfather.  This is a clear, unequivocal statement from the mother as at 1 September 2011 acknowledging that she “agreed to supervise the time between Mr Newnham and X” (paragraph 5).  Despite agreeing to do so, paragraph 7 makes it abundantly clear that she did “not agree that Mr Newnham needs to be supervised when he is around X”.  Several paragraphs of the affidavit set out evidence about the inconvenience caused to her, in terms of her work hours, as a result of that order.

7. Another important paragraph in this affidavit is paragraph 15:

   X calls Mr Newnham “dad”.  She refers to Mr Sewell as “Mr Sewell”.  I don’t have a problem with her doing this because she is only young and the male person that has lived in the household for the majority of her life is Mr Newnham.  I have said to her things like, “You are lucky to have two daddies.  You can call Mr Sewell daddy.”  X says words to the effect of, “No, I don’t want to.”  I don’t make a big deal about this.  I figure it is up to her to do what she likes.  She has a close relationship with Mr Newnham.  She knows that Mr Sewell is her father.

8. The mother deposes to X’s reluctance to go on contact with her father, and the efforts she undertakes to encourage this.  She asserts that X is upset when she leaves Mr Newnham behind, and is fragile when X returns from contact.

9. At paragraph 27 of the affidavit the mother describes the father’s concerns in relation to X’s disclosures as “a preoccupation with sexual abuse.”  She explains in her affidavit the problems caused by this preoccupation.

10. At paragraph 33 the mother states her belief that X is acutely aware of the conflict and the litigation about her.  This is undoubtedly so.

11. Whilst the mother acknowledges that she and the father do not communicate she asserts that they are “Civil with each other at changeover.  We don’t glare at each other but we don’t speak to each other either.  We simply meet with the purpose of handing over X”  (paragraph 40).  The court has reservations about this evidence.  The mother told the JIRT team on 21 November 2010 that at changeover “Mr Sewell was aggressive and intimidating in the past”.  She explains that she never attends changeover on her own and prefers to have Mr Newnham with her.  The court finds that the mother was minimising the extent of conflict at changeover.

12. The mother gave oral evidence for the first time on 15 June 2012.  By this time Mr C, the Family Consultant, had given evidence about what she told him during the course of the Family Report interviews.  I granted leave to the mother’s counsel, Mr Graham, to lead evidence-in-chief in response to this.  When given the opportunity to comment on Mr C’s evidence about what she said the mother’s evidence was to the effect that on both times she told Mr C that if she felt there was anything at all sexually inappropriate as between X and Mr Newnham, she would go to the police.  In the next moment, however, she seemed to correct herself and said “anything inappropriate”.  She also gave evidence-in-chief that although she knew there was an order in place requiring her to supervise Mr Newnham’s contact with X she had sought advice from her solicitor at the time and she concluded as a result of that advice that it was in order for her mother to supervise X if she had to work.

13. The mother was cross-examined by Mr Davies, counsel for the father.  She agreed in cross-examination that possibly after the first JIRT investigation, and definitely after the second JIRT investigation in 2011, in discussions with Mr Newnham he had told her that he had put his tongue in X’s mouth.  She explained that she had seen it happen and had formed the view that it was not done in a sexual way, but accepted that it was inappropriate after the JIRT interview.  She agreed that she did not consider it inappropriate before then.  She also indicated that she did not see Mr Newnham licking X in the manner alleged, but considered that behaviour inappropriate.  In relation to the “snuggle cuddle” allegation, she thought that was not inappropriate.  She was aware of the Independent Children Lawyer’s contention that it could be grooming behaviour, but the mother agreed it had never occurred to her that that might be the case.

14. When the first order was made requiring Mr Newnham to leave the home, the mother agreed that in fact it was she and X who left the home, moving to the home of her parents.  She felt that was best, even though it meant moving X.  Whilst the mother emphasised in evidence her belief that X was very comfortable in the maternal grandparents’ home, the fact is that this move was a significant change to X’s routine, and it is still not clear to the court why Mr Newnham would not move out of the home.

15. The mother agreed in cross-examination that she was aware of Mr Newnham’s past mental health history.  She also confirmed that, even after hearing all of the evidence in the case as at that time, she had not changed her view that Mr Newnham was not a risk to X.  Mr C’s view that the mother was minimising the risk to X from Mr Newnham, and therefore would be unable to protect X from him was put to the mother.  She disagreed, fundamentally, with the proposition that just because she did not believe there was a risk, that she could not protect X.  She said after the allegations were made she did certain things including, for example, moving out of the house with X, becoming more aware of her behaviour, and being vigilant. 

16. Nonetheless, she agreed that because she was working she had left X in the home with Mr Newnham and that she was, in effect, relying on X saying something to her in order to alert the mother about things that happened when the mother was not physically present.  The mother explained that X said nothing to her in this regard.  She acknowledged, however, that the Family Consultant’s view was that X was, in all the circumstances of this case, unlikely to make further disclosures in any event.

17. The mother was cross-examined by Ms O’Rourke, for the Independent Children’s Lawyer.  She explained that she was not concerned about the observations of Ms A and Ms L when the father was cradling X like a baby, during the course of the Family Report observations.

18. There was then some important cross-examination about the mother’s response to the two JIRT investigations, and her subsequent involvement with a Sexual Assault Clinic.  She explained that her involvement with the Clinic commenced after the second JIRT investigation and involved meetings with Ms R.  She believed that there were eight meetings, some involving her, but mostly involving X.

19. As the issue of the mother’s protective capacity is a major one in this case, I will include extracts from the transcript of the mother’s cross-examination.  The first passage is at page 82 of the transcript of evidence 15 June 2012, from lines 1 to 35 inclusive:

    MS O’ROURKE:   You would agree that you did have a conversation with both Ms O and Mr M together with your husband after the second JIRT interview?‑‑‑Yes.

    And you would agree that they told you that they considered the evidence – sorry, they considered that what X had disclosed about your husband putting his tongue in her mouth indicated or they had formed a view that that was sexually inappropriate behaviour?‑‑‑Yes.

    And they advised you.  They gave you some advice about what you should do?‑‑‑Yes.

    And what was the nature of that advice?‑‑‑Well, you know, be aware.  Supervise.  I can’t really remember everything that they have told me. 

    So they certainly did suggest that you would be to supervise Mr Newnham’s physical contact with X, didn’t they?‑‑‑Yes.

    And you – your initial response was, was it, to say that you didn’t think that it was inappropriate behaviour?  Was that your first response?‑‑‑Yes.

    When you were having the conversation with the JIRT officers did you maintain that belief throughout the entirety of that conversation, that you didn’t the behaviour to be sexually inappropriate?‑‑‑I can’t remember if it was the entire conversation.

    You did tell them though that you would agree that – to supervise your husband’s contact with your daughter in the future?‑‑‑I can’t overly remember it.  I am sure I would have.

    Yes.  Well, if the JIRT record and the DoCS record indicate that the JIRT officers were satisfied that you were protective because – that you would supervise Mr Newnham’s contact with your daughter in the future, would you accept that that is likely to be their understanding of what you had said to them ­ ­ ­?‑‑‑Yes.

    ­ ­ ­ in the interview?‑‑‑Yes.

20. The documents produced by JIRT and DoCS are consistent with what was put to the mother in the above passage and I accept the Independent Children’s Lawyer’s contention that after the second JIRT investigation, both JIRT and DoCS were satisfied that the mother was adequately protective because she would supervise Mr Newnham’s time with X.  It is interesting to note, however, that the records of the first JIRT interview on 22 November 2010 reveal that the mother “initially made light of Mr Newnham and X licking faces and putting tongue in each other’s mouth, however after explaining the seriousness of what was occurring, she quickly acknowledged that this was inappropriate…”.  In other words the mother had already been warned about the inappropriateness of Mr Newnham’s behaviour in the first JIRT interview. 

21. The questioning then turned to her sessions with Ms R.  The mother accepted the accuracy of Ms R’s notes of an appointment on 15 February 2011 for X and the mother. 

22. The mother accepted that as at February 2011, when she met Ms R, she was still of the view that X’s disclosures were merely allegations that the father was making.  The mother agreed that Ms R raised the issue of “grooming tactics” in the context of Mr Newnham’s behaviour towards X.  The mother agreed that the JIRT officers had also said that to her.  The mother also agreed that by February 2011, and over a period of a few months, she had been told by two sets of professional people, namely the JIRT officers and Ms R, that the behaviour described by X was sexually inappropriate. 

23. Nonetheless, she maintained her view that the behaviour described by X in respect of Mr Newnham was not sexual.  It was inappropriate, the mother contended, but not sexually inappropriate.  When asked to explain why it was not sexually inappropriate the mother said, “Like I said, I had witnessed it.  And I did not feel at all that it was done in a sexual way.  Inappropriate in hindsight” (transcript page 84, lines 23-25).  The mother also agreed that she had observed the behaviour in question between X and Mr Newnham perhaps five times up until the second JIRT interview, but said it was not a regular thing.  The following exchange then took place between the mother and myself:

    HIS HONOUR:   So, Ms Newnham, you were saying that it could have been five times when you saw Mr Newnham with his tongue in X’s mouth;  is that right?‑‑‑It could have been.  I – yes.

    All right.  So it could have been more.  It could have been less?‑‑‑It could have been.

    All right.  Do you remember the context of it.  For example, what were they doing at the time?  Where they playing?  Was it bedtime?  What was happening at the time?‑‑‑They were playing or it would be if X and I were, you know, going into town X would initiate it too and, you know, do it.

    Did she do it with you too?‑‑‑No.  No, I don’t think so.

    (Transcript page 85, lines 11-22.)

24. It should be noted that after the mother’s evidence on 15 June 2012 I made the orders on 18 June 2012 excluding the stepfather from any home in which the mother and child lived and requiring any time between X and her stepfather to be supervised.  As I explained in my reasons, I was concerned about the mother’s protective capacity given what I would now describe as ambivalence in relation to whether there was any risk to X, and the nature of such risk.

25. The mother gave evidence again on 31 July 2012.  I granted leave to the mother to adduce evidence-in-chief about events since the making of my orders on 18 June.  She explained that pursuant to those orders, Mr Newnham had left the home and went to live with her parents who had agreed to supervise Mr Newnham’s time with X.  She explained that this had been very difficult for her as she was left to do everything around the house including caring for X.  She explained that X had become anxious, cried a lot, appeared to miss Mr Newnham, had difficulty going to sleep and remaining asleep, and had problems at school.  She said this behaviour was not apparent before the orders were made.  The mother also explained that she had commenced an online course through TAFE about identifying and responding to children and young people at risk.

26. The mother was cross-examined by Mr Davies, counsel for the father.  She once again expressed her belief that what she had seen of the stepfather’s action indicate that it was not done sexually.  She did not believe it was grooming behaviour.  She did understand, however, that Mr Newnham was putting his tongue inside X’s mouth.  When asked whether it had happened since when the mother said that she had made sure it never happened again.  When pressed about this she agreed that X had said nothing and that is how she was so sure that it had never happened again.  She explained that she does not ask X about these things.  When pressed, the mother conceded that nothing has happened to X in her presence.  She continues not to ask X whether things have happened, and she continues to trust Mr Newnham.

27. When cross-examined about her religious beliefs she agreed that she had told X that (religion omitted) are persons of truth, but denied that she had ever told X that persons who are not (religion omitted) tell lies.  The mother was also cross-examined about an incident that took place at changeover at McDonald’s in which she hid herself from sight whilst seeking to videorecord the changeover.  I will deal with this incident in another context.

28. The mother also gave evidence that during the three day hearing in June she had taken X out of school for three days and brought her to (omitted).  The mother agreed that X must therefore have been quite aware of the court case.

29. Going back to the changeover incident the mother agreed that “she did not make her presence felt” till shortly before the father was about to leave because the mother was not present to facilitate X’s return to the mother.  This incident is less than flattering for the mother, and stepfather and gives an insight into the antipathy that exists between the applicants and the respondents.  Again, the mother reiterated that she believed there was no need for X’s time with Mr Newnham to be supervised and that the entire litigation is about the father and his enmity towards her and Mr Newnham.

30. The mother agreed in cross-examination that after I made the orders on 18 June 2012 excluding Mr Newnham from the house that both she and Mr Newnham sat down with X to tell her about the orders.  The mother said that X became upset and asked whether this was happening because of the court order to which they said yes.  This incident again raises issues about the mother’s insight and understanding of risk issues.  It raises issues about the mother’s willingness to involve X in this litigation, indirectly, if not directly. 

1. At paragraph 11 of her affidavit, Ms A describes the conversation with her colleague, Ms L:

   To the best of my memory it was around this time that, Ms L said to effect: “Did you do protective behaviours in your studies?  What do you think of him?”  I recall saying to effect: “Are you talking about Mr Newnham?  I am not feeling comfortable either.”  We both decided to keep the venetian blinds open (to view into the room) and we agreed that Ms L would pop in and out of the room more regularly.

2. The last relevant paragraph is paragraph 12, dealing with Mr Newnham’s cuddle of X:

   It was some time after that, when I was walking down the hallway, that I observed through the venetians that the child was lying across his lap in a fairly firm cuddle.  I recall that her head was on his upper left arm, his left arm was under her head, his right arm was stretched across [her] left thigh, his left hand resting on the top of the buttocks and the lower of her back.  I would describe this as the same as you would cradle a baby.  X presents as a child between 4 and 5 physically.  I walked in.  X had no expression on her face and she was blank.  It appeared that she was lying out of compliance.  I said: “Is everything alright?”  I remember thinking at the time:- “This child is not involved in this cuddle.”  Mr Newnham answered in a pleasant manner: “She wanted a cuddle” or words to that effect.  X’s eyes turned towards me and then turned back with the same blank expression.  I felt uncomfortable by the presentation of this situation.

3. In cross-examination, Mr Davies, counsel for the father asked Ms A what caused her to say at paragraph 11 that she was feeling uncomfortable when discussing the situation with Ms L.  She explained that she felt that Mr Newnham was being overprotective and “over the top” a little bit more than is usual in these cases.  She was concerned about his insistence of wanting to be with X, though she readily accepted that Mr Newnham and X would not have been familiar with the process.  She explained that her discomfort was based on instinct, and her impression that Mr Newnham did not appear relaxed or normal.

4. Mr Davies asked Ms A to explain why, in paragraph 12, she refers to X “lying out of compliance”.  Ms A explained that what concerned her was the absolutely blank look on X’s face.  She explained that she had worked with children for more than 30 years.  She said that children either want a cuddle or they do not want it.  In relation to X, “She was blank, there was nothing.”

5. Ms A was cross-examined by Mr Lindeman and Ms Flintoff for the stepfather and mother.  Nothing she said detracted from her evidence.

Ms L – client service officer

1. Ms L is a client service officer with the Family Court of Australia in Newcastle.  She affirmed an affidavit on 16 April 2012.  In cross-examination she too explained that she had never given evidence in a court case, and that she had been employed as a client service officer since June 2011.

2. At paragraph 4 of her affidavit she described what she saw when the parties first came to the counter:

   I can remember the stepfather, mother, the maternal grandfather and the child approaching the counter.  I am required to check the names and the details of the parties.  I recall that the step-father answered the questions.  I attempted to get the mother to answer the questions, but the step-father answered the questions on her behalf.  The way he behaved at the counter, by answering my questions, I assumed that he was the father.  I identified who he was only when I asked: “Who are you?”

3. She explains that she then led the group into the childcare room, explaining to them what was available for X to play with.  At paragraph 6 she then says:

   I concluded by saying, “I just need mum to sign X in.”  I handed the clipboard to X’s mother who was standing.  I then explained to X’s mother where she was to sign.  The stepfather then walked over and he stood looking at the clipboard watching the mother fill in the sheet.  I concluded by saying, “Mr C won’t be long.”

4. Ms L then explained that Mr Newnham spoke to Ms A about taking X to the toilet.  At paragraph 8 she says in this regard:

   I am unable to recall the exact exchange between Ms A and the step-father, but I recall that a discussion took place where the step-father questioned Ms A about the other family in the other child care room and why it was that he could not go with X.  The conversation concluded with Ms A saying to effect: “There is another family in the room and you are not allowed to go in – and she’ll come back to the room.”  I escorted X to the toilet.  I recall that she had just been eating fruit and she needed to wash her hands.  I showed X to the room, showed her where the toilet was, and I waited outside the room as X went in.  I then walked X back to the child care room.  The step-father was loitering around the entry to the child care room.  I found this unusual behaviour because Ms A reassured him earlier.  I expected him to be waiting in the room.

5. Ms L explains in her affidavit that after the toilet visit she decided that the blinds should be partially opened into the childcare room so that it was possible to glimpse down into the room when walking by.  Then, at paragraphs 10 to 12 she explains what she observed and what happened:

   On one of these occasions, I looked through the window.  X was sitting on the lap of the step-father on one of the two-seater sofas.  X was being cradled by the step-father on his lap.  X was positioned right-angled on the step-father’s lap, who was sitting on the left cushion.  X was leaning in on the step-father.

   I observed that this behaviour was inconsistent with other families that I have observed.  Often it is the case that parents and children actively interact and play games in the playroom as they await a Family Consultant.  I then spoke to Ms A.  Ms A suggested we get more toys for her to play with.  I entered the room and said to effect: “Do you need something else?”  I would have been suggested other activities such as the movies, Lego, drawing, craft.  I then left.

   More time elapsed, and I recall checking the room more frequently through the blinds.  Walking past again, I observed that X was lying across the lounge and her head was resting on his upper right leg.  X was staring at the roof.  At this point, I took the doll’s house in and started playing a little bit on the ground with X.  I heard the step-father encourage X to “go and play”.  Shortly afterwards the mother came back into the child-care room.

6. Mr Davies cross-examined Ms L about what she meant in paragraph 8 when she said that Mr Newnham was “loitering” around the entry to the childcare room.  She explained that from her experience parents sit in the lounge and wait, but he, Mr Newnham, was standing at the door.

7. In cross-examination by Ms Flintoff and Mr Lindeman, Ms L conceded that X may well have been tired, a possible explanation for her behaviour.

Unacceptable risk of abuse?

1. This is a case where no single fact or finding can result in the assessment of risk to X as being unacceptable. The Briginshaw standard applies. One must have regard to the totality of the evidence.  By looking at past events the court has the best opportunity to assess future risk.  The totality of the evidence does lead the court to conclude that there is a risk of abuse to X from her step-father, and that for as long as he remains a part of her life, and therefore the mother’s life, this risk remains an unacceptable one.  The risk is accentuated by the mother’s failure to adequately appreciate the past risk to X, and thus failure to protect her.  Regrettably, it is only by removing the step-father from the mother’s life that the court can be satisfied that she is adequately protective towards X.

2. A complex constellation of facts leads to the conclusion about unacceptable risk of abuse.  Focussing firstly on the step-father, his evidence about licking and kissing X was troubling at several levels.  He disingenuously changed his evidence between the first and last days of the hearing.  On day one he clearly acknowledged that he did put his tongue in X’s mouth.  By day 6 he was asserting it was only to her teeth or just past her teeth.  In a case where there is such a strong link between assessing risk to a child, and assessing the credit of the alleged perpetrator, the step-father demonstrated that his evidence could not be believed.  It must be acknowledged, however, that even before day 6 there were serious issues about the step-father’s credit.  It beggars belief to accept his evidence that he did not consider his actions inappropriate, let alone to have a sexual dimension, at the time he committed them, or later when confronted by child professionals about his actions.  It is troubling that he continued in what he described as this “game” with X even after she asked him to stop.  The step-father consistently minimised the significance and potential impact of his actions throughout his evidence.

3. The court finds deeply troubling the step-father’s failure to disclose his mental health history in his evidence.  The focal point of the criticism here is not that he did not volunteer information to the Family Consultant, but rather that he did not voluntarily disclose in his affidavit evidence that was clearly relevant to the context of a risk assessment exercise.  There are three issues here.  The first one is that the step-father has a long and potentially complex mental health history that includes relapse and failure to comply with professional direction.  This is in itself a risk factor as regards X.  The second issue is that when confronted with this evidence he tried to minimise the extent of his problems.  The third issue is that by failing to disclose relevant information about himself the inference may reasonably be drawn that he is not being full and frank with the court.  Indeed an interesting sub-theme in the step-father’s non-disclosure of aspects of his past life is that the mother appears to have been a victim of this too.  Whilst she valiantly and out of loyalty at times sought to gloss over what she had only learned during the course of these proceedings about her husband, the court finds she did not know the full extent of the step-father’s mental health history.

4. The theme of the step-father’s non-disclosure extends to his criminal antecedents.  Both the 1997 and 1999 convictions have a sexualised component to them, a fact the court is satisfied the mother did not know about herself.  These are matters that are relevant to risk assessment.  The mere fact of these convictions, even with a sexualised component to them, does not make the step-father a sexual predator of children.  Nor does an undisclosed mental health history.  When these factors are compounded, however, by failure to disclose, and minimalisation, issues of risk assessment become starker.  The situation is rendered even more fraught in view of the step-father’s denial that he committed the 1999 offences, when the evidence so clearly indicates that he entered a plea of guilty, having had the benefit of legal advice.

5. Another factor in this complex constellation of facts is the step-father’s emotional and psychological dominance of the mother.  He was dogmatic in his view about being head of the family, even though X was not his natural child.  He had a sense of entitlement in relation to X calling him “dad”.  His controlling behaviour of the mother during the intake procedures for the Family Report is worrying.  His deception of the mother in relation to important details of his criminal antecedents and mental health history also smacks of dominance and control.  The mother’s capacity to appreciate risk to X, let alone protect her from the step-father, is almost neutered by her inability to stand up to him.  Indeed given his passive but nonetheless pervasive dominance over her, it is perhaps unsurprising that the court has concerns about her protective capacity.  A further stunning insight into this dominance issue is that the mother and the step-father would, together, explain to X that he had to leave because of a court order.  Absent from this event must have been any hint to X that it was the step-father who was the potential risk to her, and not her father.  Yet another example of this is when the mother and X moved out of the family home when the first restraining order against the step-father was made, and not the other way around.

6. Yet another complicating factor is X’s blind but child-like adherence to what she considers to be a tenet of the (religion omitted) faith in relation to right and wrong, and truth and fiction.  Whilst the step-father, mother, and indeed the (religion omitted) of which they are a part can hardly be blamed for how a child internalises a particular interpretation of a teaching, the fact is that X is much less likely to report inappropriate behaviour, let alone abuse, in that family and church context where she believes her step-father can do no wrong.  This makes X extremely vulnerable.

7. The incident when the step-father was seen cuddling X during the second Family Report interviews is disturbing at a number of levels.  Ms A’s reported discomfort about what she observed is shared by the court.  The father was alone in a room cuddling a 6 year old child as if cradling a baby, in the context of report interviews in a case where it was alleged he was a risk to that child.  Quite apart from the step-father’s assertion that he was not alone in the room, an assertion the court rejects, one must wonder what the step-father was thinking?  On 12 September 2011 the step-father signed a consent order that restrained him from “hugging X…in an inappropriate manner…”.  Even if he considered the hug as not inappropriate, why would he take the risk of it being misconstrued?  Was it monumental lack of insight, or was it (like the evidence of the “snuggle cuddles”) possible grooming behaviour?  This incident on its own probably means nothing.  Viewed as part of a constellation of facts it raises further concerns about the risk to X.

8. In assessing the risk of abuse to X, one must now consider the mother’s role in all of this.  On the one hand the step-father’s dominance of her needs to be understood as the context in which her inaction was played out.  One must also understand that the mother appeared to be emotionally, and at times physically, worn down by conflict in her relationship with the father that pre-dates X’s disclosure to him.  These two factors probably interacted with, and fuelled each other. Thus, for example, as the conflict with the father deepened the mother became even more dependant on the step-father at changeovers, even though this made the conflict worse.  Her dependence on the step-father played into his passive control over her.  Accepting these matters, as the court does, the fact is that the mother failed to appreciate the risk issues to X until very late in the hearing.  It was only on day 5 that she seemed to start to appreciate the constellation of facts that had emerged during the evidence pointing to risk issues associated with the step-father.  It was only on day 5 that she categorically articulated a willingness “to do whatever it takes to protect X, even if it meant separating”.  Before that point the court’s impression of the mother was that she was naïve about risk issues, minimised the significance of events that the step-father admitted, was resistant to advice from child protection experts, and was somewhat ambivalent in relation to compliance with court orders, often prioritising her own convenience.  She was far too trusting of the step-father and motivated by loyalty to him.  She deliberately minimised the nature and extent of the conflict with the father, particularly at changeovers.

9. The question for the court is whether she can be entrusted to protect X in the future?  The criticism that can be made of the mother is that her past track record in this regard is singularly unimpressive, and her epiphany on day 5 was, perhaps, a pragmatic response to the realisation that she might have to choose between her husband or daughter, rather than an appreciation of the risk to X.  Be that as it may the question about whether the mother can be trusted to protect X in the future needs to be answered in two contexts – one without the step-father in her life, and one with the step-father in her life.  If the step-father is in the mother’s life in any way, the very nature of their relationship is one in which she will become subservient to him, history will be repeated, and the risk to X will remain.  Accordingly the risk to X will only be an acceptable one if the step-father is neither in her life nor the mother’s life.  This raises other issues for X that will be discussed below.  The mother was clear in her evidence to the effect that she could re-organise her life without the step-father.  Whilst the court accepts this, it is probably the case that she has under-estimated the emotional and financial impact of this on her.  Notwithstanding this, the mother does appear to be well-supported by her parents who have a long history of involvement with the mother and X.

Meaningful relationships

1. Section 60CC(2)(a) requires the court to consider the benefit to X of having a meaningful relationship with both of her parents.  This paragraph does not, therefore, include her step-parents, and X’s relationship with them is, the court is satisfied, considered in s.60CC(3)(b), (d) and (f).  The court is satisfied that whatever order is made having regard to the competing proposals, X will have the opportunity to have a meaningful relationship with her parents.  This factor is not a determinative one, on the facts of this case.

Protecting X from harm

1. There is obvious overlap between s.60CC(2)(b) and the discussion of unacceptable risk of harm to X in the preceding part of these reasons.  There are other risks to X, particularly of psychological harm, that probably do not technically fall within the then current definition of “abuse, neglect or family violence” in the Family Law Act. These other risks include the potential harm to X from being exposed to the conflict between her parents, and especially between her father and step-father.  It is inevitable, for example, that their loathing of each other is akin to a toxic substance to which X is exposed on a regular basis.  There is no doubt from the evidence that X is aware of this conflict, and the Family Consultant attributed X’s recent resistance to contact with her father to this conflict.  Another insidious matter from which she needs to be protected is involvement in these proceedings.  The most disturbing example of this on the mother’s side is that X was taken out of school and brought to Newcastle for three days during the hearing of this case.  The court is quite unconvinced by the tenuous explanation offered by the mother in this regard.  Surely, out of the galaxy of family and friends, including from her local (religion omitted) congregation, someone could have been found to care for X whilst the mother and step-father were in Newcastle?  In any event, and as previously stated, these are matters best dealt with by reference to other s.60CC considerations.

X’s views

1. X’s views carry no weight in this case.  She is far too young.  She has been influenced by exposure to her mother and step-father’s views about her father.  She is clearly aligned with them.  Her views are, moreover, influenced by her blind but childish adherence to a tenet of the (religion omitted) faith in relation to right and wrong, and truth and fiction, which she has internalised and probably misconstrued.

Nature of X’s relationships

1. X’s strongest relationship is undoubtedly with her mother, and the Family Consultant warned in the strongest way about the potential impact on X of making substantial changes to this.

2. X’s next strongest relationship is probably with her step-father, and but for the risk of abuse issues that have been identified and discussed in these reasons, X’s relationship with him is an important one for her.  When in the past they have been separated from each other as a result of court orders, the evidence suggests she has missed him.  As important as this relationship is to X, protecting her from the risk of harm is even more important.  If the court decides to remove the step-father from X’s life altogether this will be a major emotional set-back for her. She may blame herself for this. Nonetheless she will have the ongoing support of her mother and her family and she will cope with what is a necessary change in her life.  The Family Consultant suggested counselling as a way of supporting any necessary transitions in her life.

1. X’s relationships with her father and step-mother are good but have been stressed by the high conflict between the parents, by the disclosures she made to her father, and by the ongoing litigation.  Resolution of the litigation including the findings made may go some way to removing the stresses in X’s relationship with her father.

2. The proposals before the court that have the greatest impact on X’s relationships are those of the father and Independent Children’s Lawyer.  The dramatic change and disruption to X’s main relationship with her mother contemplated by these proposals seem predicated on two propositions that are yet to be established:

   a)That removal from the mother is the only way to protect her from the risk of harm; and

   b)It is also the only way to facilitate X’s ongoing relationship with her father, due to her alignment with her mother.

   The first proposition is not established on the evidence because, as discussed earlier in these reasons, another way to protect X from harm is to remove the primary source of that harm – her step-father.  The second proposition will be considered below.

Willingness and ability to facilitate and encourage relationships

1. Viewed from the perspective of this consideration, the prognosis for X is poor.  The court has deep concerns about the ability of either parent to support and encourage X’s relationship with the other.  The past is the best indicator for the future.  The only hope for X is if the court’s intervention by way of final orders acts as a “circuit-breaker” for her mother and father so that they re-orientate themselves and behave differently in the future.

2. The father’s loathing of the step-father has severely clouded his judgment.  He cannot see how his actions have directly and indirectly, subtly and not-so-subtly, had the effect of seeking to undermine X’s relationship with her mother.  The father has consistently regarded the step-father as a risk to X’s well-being.  His concerns have hitherto not been vindicated.  For as long as the step-father is part of X’s life, he will harbour unquenchable concerns in his mind about risks to her, and will pursue his crusade against the step-father.  If X were to live with her father the court would have grave doubts about his capacity to support contact with the mother if it involved any contact with the step-father.  The “circuit-breaker” for the father will only be if the step-father is removed from X’s life.

3. X is aligned with her mother, step-father, and indeed the maternal family, against her father.  As discussed above, this is complicated by her child-like adherence to the (religion omitted) faith, by the reaction to her disclosures, and by the intense conflict between her parents and step-parents and yet, at least until quite recently, X has gone with her father pursuant to orders made. She may be resisting contact, but it could not be said that she has rejected her father. Indeed the Family Consultant’s evidence indicates that the fundamentals are there, in the sense of a solid relationship with her father. Despite the conflict at changeover, X has been presented for contact and has gone with her father. Just because she is aligned with her mother and maternal family, as her father and indeed the Independent Children’s Lawyer submit, it does not justify a complete reversal of existing care arrangements unless there is a real risk that alignment will inexorably progress to rejection of her father. On the evidence the court is not prepared to find that the risk of alignment progressing to rejection is a substantial or unacceptable one. This is because the context of X’s life, and her mother’s life, will be a radically different one once the step-father is excluded from her life.

4. The court does not accept, therefore, that the mother is incapable of facilitating and encouraging X’s relationship with her father.

Likely effect of change on X

1. This consideration must be viewed in the context of the other major considerations in this case, but the risk issues in particular.  If the risk to X is found to be unacceptable whilst in her mother’s care, then major change may well be warranted.  If that risk can be managed, then the necessity for change is minimised whereas the adverse impact of change is maximised.

2. The proposals of the father and the Independent Children’s Lawyer involve the greatest change for X in circumstances where the court finds that she can be adequately protected by excluding the step-father from her life.  Once this change is brought about there is no reason, compelling or otherwise, to remove X from what is clearly her most fundamental, oldest, strongest and most important relationship – with her mother.  The Family Consultant’s concerns about this have already been noted.

3. The exclusion from X’s life of her step-father will be a significant, indeed dramatic change in X’s life, but one necessitated by risk considerations.  The Family Consultant has referred to the need for counselling for her, and the court finds that X will, in any event, be well supported by her mother and maternal family.  What of the potential impact on X of the impact on the mother, of the step-father’s removal from her life?  The court accepts that, at a time of existing vulnerability in the life of both X and her mother, the mother’s loss of her husband in the circumstances of this case will be a compounding stressor.  As explained in the discussion of unacceptable risk above, there seems no alternative.  The mother will need to be supported by counselling.  The court is confident that the maternal grandparents will stand with both her and X during a different time of transition.  There is every reason to believe that the mother’s local church (omitted) will also support her.  There will be legal and financial reorganisation as well as emotional.  She has been well-served to date legally, and there is legitimate reason to hope this will not change.  The mother survived the breakdown of her marriage to the father, and should therefore survive the compelled separation from her husband now, with the support systems she has available to her.  The court is therefore confident that X will cope with these changes as well.

Issues of practical difficulty and expense

1. Despite the geographical issues that exist in this case the parents seem to have managed to deal with issues of practical difficulty and expenses quite well – indeed far better than, for example, the way they have managed their conflict.

Parental capacity

1. Apart from risk issues relating to the step-father, no party to these proceedings raised substantive concerns about the other’s parenting capacity. There were some tentative, veiled references to issues about the past mental health of both the father and step-mother, but the evidence went nowhere in this regard.

Maturity, sex, lifestyle and background

1. The only relevant factor here is X and the maternal family’s involvement with the (religion omitted).  In this regard the most significant evidence came from the father.  When given the opportunity to comment about X’s involvement in the (religion omitted) faith, he made no criticisms at all.  This is notwithstanding that the father had access to the Family Report and was well-aware of the Family Consultant’s concerns in this regard.  The absence of criticism from the father remained the case even though he knew that X was regularly involved in (omitted).  It is significant, the court notes, that the father was once himself actively a (religion omitted) so would have been well-placed to know and understand the sort of lifestyle that X would be experiencing in this regard.

2. The Independent Children’s Lawyer raised concerns about X’s involvement as a (religion omitted) because of the concerns expressed by the Family Consultant in the Family Report.  The context of these concerns was the influence of her shared religious beliefs with the maternal family, and the consequential risk and alignment issues.  These have been discussed earlier in these reasons.  Even though there is some overlap the court considers it convenient to explore this issue in the context of a statutory consideration that looks at broader lifestyle issues. Specifically the issue is: are there issues pertaining to X’s involvement in the (religion omitted) that are pertinent to her best interest?

3. The first point to be made here is that the father did not think that there were any such issues.

4. The second point is that the Independent Children’s Lawyer’s concerns seemed to focus on the risk that (religion omitted) teaching would have on excluding the father from X’s life.  The evidence does not support this. Neither the evidence of Mr G, the maternal grandfather and an elder in the (religion omitted), nor Exhibit ICL5, an extract from a (religion omitted) publication lead to any inference, let alone a conclusion, that supports the concern articulated by the Independent Children’s Lawyer.  Indeed the evidence of Mr G’s own family situation of having a son who is not a (religion omitted), but with whom he says he has a very close relationship, tends to suggest that the “exclusion” or “shunning” concern has no basis.

5. The third point is the Family Consultant’s concern about X’s adherence to a religious belief is dealt with in other ways.  The exclusion of the step-father from her life more than adequately deals with the risk issue of being conditioned not to disclose.  In any event the evidence of Mr G satisfies the court that the interpretation of scripture that X has internalised is not in fact accurate.  X’s childish adherence of what she has heard in Sunday School and church is as simplistic as it is misconstrued.  This is not a case where criticism can be levelled either at the (religion omitted), or the adults in X’s life, especially not in a context where her father declines to “cast the first stone”.

6. In the circumstances of this case, therefore, there are no issues about X, or her parents’ lifestyle and background that inform a determination of what is in her best interests.

Parental attitudes

1. This is a case where concerns about parental attitudes and lack of insight abound, but ultimately these are not determinative.

2. The mother’s naivety about and minimisation of the abuse allegations demonstrate real lack of insight and irresponsible parenting.  She was blinded by her loyalty to her husband, the step-father in these proceedings, but also probably under his subtle dominance and control.  Her naivety is also manifested by her resistance to advice from authority figures about the nature of the risk to X, and how best to manage it.

3. The mother can also be criticised for her role in the chronic parental conflict that exists in this case, and she was a passive facilitator in the raging hatred between the father and the step-father.  The mother has, for the most part, complied with the orders for contact between X and her father, but probably could have done more to facilitate reasonable requests for more time with the father.

4. The father’s behaviour also raises issues of immaturity, lack of insight and irresponsibility.  Despite his crusade to protect X, in respect of which he may feel partly vindicated, he was at time insensitive to her needs.  Involving her in the proceedings by inappropriate conversations, and allowing conflict to be played out in front of her (both legitimate additional criticisms of the mother), as well as unilaterally altering contact arrangements, reflect poorly on him.  Despite the findings of unacceptable risk of abuse made in this case, the father’s repeated reports to the authorities, once these proceedings were in train, suggest a motive that went beyond just concern for X.

Order least likely to lead to further litigation

1. The court is satisfied that in the circumstances of this case, and having regard to the findings made about unacceptable risk of abuse, the proposals most likely to leave to future litigation are those of the father and the Independent Children’s Lawyer.  There are two reasons for this. Firstly to place X in her father’s care is such a “monumental” change for her, to adopt the words of the Family Consultant, that there are bound to be issues with implementing this order.  One can foresee issues at changeover, and problems with the mother convincing X to return to her father after contact visits, all of which would be conducive to Contravention Applications.  Secondly, there is a greater risk of the father not supporting X’s relationship with her mother, for reasons previously articulated.

Orders

1. Despite the difficulties and complexities associated with this case the presumption of equal shared parental responsibility is not rebutted or negated.  Indeed it would potentially do more harm that good to give the one parent alone responsibility to make decisions about X.

2. The conflict at changeovers is problematic, and whilst the court is hopeful that this conflict may abate as a result of these reasons and the orders made, the risk is still a real one.  The Independent Children’s Lawyer proposed changeovers at X’s school.  In the circumstances this is appropriate as it keeps the parents physically apart, though it may cause inconvenience.  For example the only practical way to achieve this is for the father to do the travelling.  The court recognises that this is an imposition on him, but the benefit to X is that it becomes a point of connection between the father and X’s school life.  To promote some balance as regards travel commitments, the mother will be ordered to undertake the travel for all changeovers not taking place at the school.

3. There is no reason to otherwise vary the base structure of the father’s contact arrangement being each alternate weekend, and during school holidays.  The father proposed that the mother have half the school holidays if X lived with him, and the court infers this is what he proposes for his own contact.  The mother proposes only two weeks of school holiday contact, coinciding with his annual leave.  It is hard to see the rationale for this on the evidence.  X should have the benefit of contact with her father for half of each school holiday period.  I accept that at her age up to three weeks over the Christmas/New Year period may be a long time to be away from her mother.  Until she turns 8 years old, therefore, her contact should be in one week blocks.

4. The mother proposes that changeover take place at a Police Station whereas the father proposes both a Police Station and a McDonald’s Family Restaurant. 

5. Having regard to the orders that will be made, most of the changeovers will be at X’s school.  The rest should be at a McDonald’s Family Restaurant closest to the father’s home.  The step-father needs to be excluded not only from X’s life, but the mother’s as well, for reasons previously articulated.  I am satisfied that s.68B is an appropriate grant of power in this regard.

6. It is clear from the evidence that both X and the mother will need to be supported by counselling or other therapeutic intervention.  The orders will empower the Independent Children’s Lawyer to make recommendations in this regard, and compel the parents to comply.  I will request the Legal Aid Commission not to discharge the Independent Children’s Lawyer for three months from the date of these orders, to enable the Independent Children’s Lawyer to facilitate the transition for X.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date:  1 November 2012