Smithson and Lorenzo

[2018] FamCA 578

FAMILY COURT OF AUSTRALIA

SMITHSON & LORENZO [2018] FamCA 578

FAMILY LAW – CHILDREN – With whom the child should spend time with – Mother seeks child to have no contact with the father – Father and Independent Children’s Lawyer seek child spend supervised time with the father on an interim basis – Where the mother alleges sexual abuse to the child by the father – Where child has not spent time with the father since 2014 – Whether the mother’s parenting capacity would diminish if child had a relationship with the father –Whether the father poses an unacceptable risk of harm to the child – Where no unacceptable risk of harm found – Where orders for supervised time adequately mitigate any such risk – Where the court must balance the risk of the mother’s diminished parenting capacity with the benefit to the child of having a relationship with the father – Where therapeutic assistance and supervision are likely to manage the mother’s parenting capacity concerns – Where the trial could not produce final orders – Interim orders made for child to live with mother and spend supervised time by a psychologist with the father – Matter to be reviewed in twelve months.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692
Russell v Close (Unreported, 25 June 1993)
Bayer & Imhoff [2010] FamCA 532
Sedgley & Sedgley (1995) FLC 92-623

APPLICANT: Ms Smithson

RESPONDENT: Mr Lorenzo

INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann

FILE NUMBER: CSC 197 of 2012

DATE DELIVERED: 31 July 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 14, 15 & 16 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITORS FOR THE APPLICANT: Reaston Drummond

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Eylander

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Lehmann Featherstone

Orders

that until further order, it is ordered that:

1. All previous parenting Orders in relation to the child, X (“the child”) born … 2010, be and hereby are discharged.

Parental Responsibility

1. The mother, Ms Smithson (“the mother”) have sole parental responsibility for the child, including determining:

   (a)Any medical or health matter concerning the child;

   (b)Matters relating to the education of the said child, including but not limited to the choice of the child’s school, subject to Order 22;

   (c)Disciplinary matters; and/or

   (d)Matters concerning the social development and sporting activities of the child.

Living Arrangements

1. The child shall live with the mother.

Time and Communication

1. The mother and Mr Lorenzo (“the father”) are to forthwith do all acts and things necessary for each of them and the child to engage with Ms B, psychologist, or such other professional supervisor as may be nominated by the Independent Children’s Lawyer from time to time, to enable the father to commence spending supervised time with the child, including but not limited to:

   (a)Undertaking and completing all required intake procedures of the supervisor;

   (b)Engaging in any required individual counselling as provided for in these orders;

   (c)Engaging in any programs or courses offered by other service providers, as may be recommended by the supervisor/s from time to time;

   (d)Equally contributing to any costs of the supervisor/s;

   (e)Equally contributing for the child’s costs for counselling together with any programs or courses offered by service providers, as may be recommended by the supervisor/s from time to time.

2. The mother and father must promptly comply with all directions that are given to them by the supervisor/s from time to time, including but not limited to:

   (a)Making the child available for any supervised sessions between the father and the child whether that be in person or via skype.

3. Upon the condition that the father has, and for so long as the father remains, engaged with a psychologist as contemplated by order 13 hereof, then he is to spend supervised time with the child at such times and places as may be arranged with the supervisor and subject always to the supervisor’s availability, provided that such visits shall commence each week for a period of 3 months (12 visits) after which the visits will be reduced to each fortnight. The visits will be up to 1 ½ hours duration, with the supervisor/s to provide a written report to the ICL at the end of each visit which the ICL shall distribute to the parents, their treating psychologists and the child’s psychologist.

4. The father is permitted to bring family members to the visits provided same is first agreed to with the supervisor/s.

5. If at any time the supervisor/s forms the opinion that the supervised visits be suspended, resumed or permanently stopped, then upon so advising the parties of that decision the obligations under these orders shall thereupon forthwith be suspended, revived or stopped as the case may be.

6. Pursuant to s 65L of the Family Law Act 1975, a family consultant nominated by the Senior Family Consultant (North Queensland) of the Family Court of Australia be appointed to assist the parties to comply with and carry out these orders, and to supervise their compliance.

7. The mother and father will each attend any appointment scheduled by the s 65L supervisor, and provide information to them as they may request from time to time.

8. The Family Report, these orders and reasons for them, and any reports of the supervisor/s be made available to the child’s psychologist, Ms C.

9. The Family Report, these orders and reasons for them, and any reports of the supervisor be made available to the mother’s treating psychologist from time to time, to assist the mother to comply with her obligations under these orders and address her anxiety about the child spending supervised time with the father.

10. The Family Report, these orders and reasons for them, and any reports of the supervisor are to be made available to the father’s treating psychologist who he agrees he will consult and remain engaged with, to assist him to address the issues raised by the mother.

11. The Family Report, Report of Dr D, Report of Ms C and these orders and the reasons for them are to be made available to Ms B (the supervisor) or any alternative supervisor.

Gifts and Cards

1. The father and family members are allowed to send gifts and cards to the child on special days including Christmas, Easter, and the child’s birthday and the mother is to ensure the child receives same.

Authority

1. These Orders shall serve as an authority to permit the Principal and staff of the school at which the child attends to communicate with the father about the child’s education and progress generally.

Restraints

1. The mother and father are restrained from discussing these orders, court proceedings and any sexual abuse allegations, domestic violence allegations or alcohol or drug issues which were raised in these proceedings in the presence of or hearing of the child.

2. The parents are to remove the child from the hearing and vicinity of any person who is discussing these orders, proceedings, sexual abuse allegations, domestic violence allegations, child pornography allegations or alcohol or drug allegations which were raised in these proceedings.

3. The parents will not denigrate each other or members of the other parent’s family to the child or within the child’s hearing.

Future progress

1. The parents review the progress of the supervision via a child dispute conference with the assistance of the S65L Consultant 8 months after the first supervised visit with a view to substituting the professional supervisor for a non-professional supervisor.

2. That a further family report be prepared 10 months after these orders.

3. That the matter be relisted for mention following the release of the further family report.

4. The parties have liberty to apply regarding the implementation of these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC197/2012

Ms Smithson

Applicant

And

Mr Lorenzo

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By her Further Amended Initiating Application filed 26 April 2018, Ms Smithson (“the mother”) seeks orders that the parties’ only child, X, born in 2010, and hence presently 8 years of age (“the child”) live with her, and that she have sole parental responsibility in relation to her.  She further seeks orders that Mr Lorenzo (“the father”) neither spend time nor communicate with the child, and be restrained from attempting to do so.  As ultimately formulated in submissions, she justified those orders upon the basis that, if the father were to spend time or communicate with the child in any form, it would so reduce her parenting capacity, that it would not be in the child’s best interests.

2. For his part, the father opposed the mother’s application, and during submissions, indicated that the orders which he sought were identical to those sought by the Independent Children's Lawyer.  In substance, those were interim orders, which afforded the mother sole parental responsibility for the child, who would live with her, but be gradually reintroduced to spending time with the father.  I shall discuss the precise proposed mechanism for reintroduction in due course, but ultimately the Independent Children's Lawyer contemplated that in about 10 months’ time, once the child had been effectively reintroduced to the father, an updated Family Report would be obtained and in due course, the matter relisted for final determination.

3. At the conclusion of the trial, I reserved my judgment.  This is that decision and the reasons for it.

THE FACTS

The father

1. The father was born in 1974, and hence is presently 44 years of age.  He was one of four siblings, grew up in E Town, and moved with his family to the F Town area when he was 15 years of age.  Upon completing year 10, he then undertook an apprenticeship, and in due course qualified as a tradesman.  After a period of employment, he told Dr G, a psychiatrist who examined him for the purposes of these proceedings, that he then worked overseas on and off for about 10 years.  Ultimately he returned to Australia and obtained work as a tradesman.  He met the mother in about 2006 when he was aged 32 years, and thereafter formed a relationship with her.

The mother

1. The mother was born in 1975, and hence is presently 42 years of age.  She has a younger brother.

2. The mother grew up in F Town and went to both primary and high school there.  Her parents separated when she was around 13 years of age and her father re-partnered, and to that second relationship were born three children.  Upon completing year 12, the mother undertook further study at TAFE, amongst other things, and thereafter worked in hospitality and retail.  Ultimately she obtained employment with a company in H Town.  She married there at the age of 20.  In her early 20’s, she and her husband moved to Brisbane, and it appears that whilst living there, her marriage to her first husband concluded, when she was aged 31.  It was at that age, whilst she was still living in Brisbane, that she met the father in 2006, and commenced a relationship with him.

The relationship

1. For about the first year, the parties’ relationship was a “long distance” one, until the mother moved back to the F Town.  Initially after she relocated, it appears that both she and the father were working for the same employer, but ultimately the mother was able to obtain her current employment, working for the public service.

2. It is not in dispute that during the course of the parties’ relationship, both engaged in the use of recreational drugs.  I shall need to evaluate the extent to which the father’s continued use of drugs poses a risk of harm to the child, which partially informs the mother’s alleged reaction to the prospect of the father rekindling his relationship with the child.

3. In 2008 the parties commenced to build a combination shed/house on property owned by the father’s parents at J Town.  That was finished in about mid-2009 and the parties first cohabited when they moved into that home in that year.

4. At around that time the father began to experience problems in his employment, and was diagnosed as suffering anxiety and depression.  Also at about that time, the mother fell pregnant with what was to prove to be the child.  She stopped working full time in February 2010 and the child was born, as I have indicated, in the same year.

5. The month after the child was born, perhaps a little unusually, the parties then went on an extended road trip to Tasmania, and were away from the F Town for about three months.  It appears that on that trip, both parties again accessed and used recreational drugs.

6. The mother says that upon their return from Tasmania, the father continued to use drugs heavily, and despite promises to give up, he proved incapable of doing so.  She says that it was that, in large part, which caused her to leave the relationship, on 4 September 2010.  That is agreed to be the date of separation.  It was effected by the mother leaving the former home of the parties, and at least initially, moving in to live with her father.  The father has remained living in the former home since then, and continued doing so at the time of trial.

7. The relationship was therefore of something a little less than four years duration, of which the parties had cohabited for slightly in excess of one year.

Post-separation

1. It appears as though immediately after separation, the father pursued and attempted reconciliation with the mother by making a considerable number of phone calls to her, and sending her many text messages.  The mother claims that this frightened her.  On 6 September 2010, in the course of trying to locate the mother, the father attended the maternal grandfather’s home, and their ensuing engagement resulted in the maternal grandfather contacting the police.  Ultimately however, on 1 October 2010, the parties were able to, with the assistance of a psychologist, enter into a parenting plan which provided for the child to live with the mother, and spend time during the day with the father.  Overnight time was not then afforded to the father, as the child was still being breastfed by the mother.

2. That parenting plan was due to be renegotiated in November 2010, and ultimately in December of that year, the parties were able to agree a further plan, which continued to see the child live with the mother and, although initially spending only day time with father, commence to spend overnight time with him in early January 2011.  It appears as though it is likely that during this period, although he says not whilst the child was in his care, the father continued to use drugs.

3. Unfortunately problems attended changeovers of the child between the parties’ care in the first half of 2011.  Further, on occasion the father would attend the mother’s residence, she says without consent.  These were amongst the matters which led the mother to apply for a protection order in May 2011, claiming that the father was stalking and verbally abusing her.  An interim protection order was made, and the father in due course was served with it.

4. The following day the mother became aware that the father had caused a video of a changeover of the child between the parties to be uploaded to YouTube.  This apparently caused her great distress, and indeed she was hospitalised on that day.  Four days later the father was also taken to the Emergency Department of the K Hospital, and during a subsequent consultation, he advised the relevant hospital staff that he had taken methamphetamines recently.

5. On 25 May 2011 the father posted a photograph of the child on Facebook, together with a relatively intemperate commentary about the mother and his present situation in relation to, what he claimed, was her unreasonable restriction on him being able to see the child.

6. On 15 June 2011 the father consented to a protection order on a final basis, without admission.  The mother says that the father has breached that order on a number of occasions thereafter, although no conviction has ensued.

7. In November 2011 the parties were able to agree a further parenting plan, pursuant to which the father spent day time during the week with the child.  However, apparently unhappy with what was able to be agreed, on 30 March 2012, the father commenced these proceedings.  Interim consent orders were made on 18 June 2012 for equal shared parental responsibility, and for the child to live with the mother, but to spend time with the father on Wednesdays and Fridays from 9:00am until 1:00pm.  Those orders were revisited in August 2012, which led to further consent orders extending the time that the father spent with the child until 4:00pm on each day. 

8. Ultimately, on 3 December 2012, final consent orders were made for equal shared parental responsibility, for the child to live with the mother, and to spend a combination of day time and overnight time with the father.  It was contemplated that those orders would, in due course, be reconsidered in December 2013, to ensure that they were still appropriate to the circumstances then prevailing.  It appears as though that occurred, and an informal agreement was reached such that the child would spend day time with the father each Wednesday, and weekend time with the father from 9:00am on Friday until 3:00pm Sunday each alternate weekend.

9. On 2 February 2014, the mother asserts that the child disclosed to her that her vagina was sore, in response to which she applied cream.  However when she did so, the child reacted in what the mother believed to be a sexual way, by arching her back, putting her arm behind her head, touching her vagina and making groaning and panting noises.  She identified that “M’s dad” had told her to do this.  It is common ground that there is no one called “M” known to the child.  It is said by the father that M is an imaginary friend, whereas the mother says that the child has subsequently identified that M is in fact the father.

10. The following day the mother took the child to the local police station, however in the subsequent 93A interview, she did not disclose any matters of substance.  Then the next day the mother took the child for a medical examination by a doctor, who advised that there was no physical evidence that the child had been sexually abused.

11. On 11 February 2014 the mother says that, whilst in the bath, the child attempted to insert toys into her vagina, and indicated, again, that M had initiated this in the past.  The mother again took the child to a doctor on the following day.

12. The father continued spending time with the child during this period.  However the child continued to display, according to the mother, some sexual content to her conversation and behaviour.  For instance, the child claimed that the father had put ice on her vagina because it was sore, and claimed that a monster would visit her in bed at night, and that the monster was “M’s dad and he is bad.”

1. In July 2014 the child’s time with the father increased to every Wednesday from 9:00am until 5:00pm, and every second weekend from Friday 9:00am until Monday 9:00am.

2. In September 2014 the child was staying over at the home of a Ms L.  Ms L swore an affidavit filed in these proceedings and gave oral evidence before me.  In her affidavit she said that she observed the child doing what she would describe as “a stripper dance.”  She explained that the child was “touching herself and rubbing her hand up her leg in a provocative manner” although fully dressed.  The next day she overheard the child talking about what was being referred to as “the undie dance.”

3. At around this time, the child also referred to that dance in a conversation with the mother, and later that day the mother, in the company of the maternal grandmother, asked the child about the dance, and in the context of that conversation the child demonstrated some sexual-like poses.  In the succeeding days, the maternal grandmother says that she observed the child self-pleasuring by tickling her vagina with her fingers.  Again there was a conversational reference to “M” having told her to do that.

4. On the evening of 20 October 2014 the maternal grandmother was babysitting the child and whilst doing so, had a conversation with her.  In that conversation, the child made reference to the “undie dance” again, and in the context of that, the maternal grandmother says that the child disclosed that, inferentially, the father put his penis against the child’s vagina in the course of the undie game.

5. However there is some confusion as to whether it was the child’s vagina, or someone called “N’s” vagina, and there is an element of fantasy in the child’s conversation with the maternal grandmother, which included mention of people being thrown up in the air by the father.  There was also reference to the father having told the child to keep all of this a secret.  Further, in that conversation the child referred to the father shooting his gun at trees at night, and there was mention of an alien.  There was also talk by the child of “rainbow tables,” and to the father’s eyes going “all dark and nutty.”  The child also reported that she ran up to the paternal grandmother’s place (which is apparently close by the father’s shed/house) when she gets scared and can’t sleep.  The child also referred to a lullaby which she says she (ie the child) would sing on occasion to calm the father down.  The maternal grandmother wrote down the words of the lullaby.

6. On 29 October 2014, the mother observed the child inserting her fingers in her vagina, and upon the mother questioning whether that was something she had seen the father do with “N,” the child indicated that she was N.  The mother claims that the child then told her that she had asked the father not to do it, but the father had, and it seems, threatened to kill her if she did not do it.  This conversation was apparently overheard by the maternal grandmother.

7. On 31 October 2014 the mother again took the child to her general medical practitioner.  There were contemporaneous notes made by the doctor which would tend to confirm the conversations of 29 October between the mother and child.

8. Also 31 October 2014 the mother also took the child to the local police station, and an investigation ensued.  Another 93A interview was conducted on 4 November 2014, and the child made disclosures consistent with having been abused by the father.  This, in conjunction with other statements, led to the father being charged in late 2014 with two counts of indecent treatment of a child under 16 who is a lineal descendant.

9. It is not in dispute that the father has neither seen nor communicated with the child since then.  His last time with the child appears to have been in about November 2014.

10. On 24 February 2015 the father signed a bail undertaking that he have no contact, either directly or indirectly, with a number of named persons, including the mother.  However in March 2015 he sent birthday presents to the child at the mother’s home address, and also on that day, concedes that he rode his motorcycle past the mother’s house, stopping outside it, before continuing on.  Then on 8 May 2015 the mother says that the father followed her car, driving in a dangerous and erratic manner and gesticulating to her that he was going to kill her.  These events were reported to police and the father was charged with breach of his bail conditions, and ultimately convicted, it seems, albeit only in relation to the occasion when he drove after the mother (noting that the father continues to deny that he in fact did so).

11. At the same time as the father had been charged with the indecent treatment offences, he was also charged with some offences relating to possession of drugs found during the course of the execution of a search warrant on his house.  He pleaded guilty to those drug offences and was sentenced to 18 months’ probation on in early 2015.

12. In August 2015 the mother was advised that child exploitation images had been found on a computer seized from the father by police.  That much appears to be borne out by documents in the tender bundle in evidence before me, although the nature of the child exploitation material is not able to be further determined.  At all events, the father has never been charged with possession of such material.

13. In mid 2015 the Director of Public Prosecutions indicated that it did not intend to continue to prosecute the father for the indecent treatment charges, and they were formally discontinued in late 2015.  The mother claims that the reason given by police was that the child was too young to give reliable evidence.

14. In late 2015 the father was convicted of the breach of bail, and on the same day, a further protection order was made in favour of the mother.

15. On 2 December 2015 the father’s then solicitors sought the resumption of time between the father and child.  The mother did not agree, and has not thereafter agreed, to any such resumption.

16. On 1 February 2016 these proceedings were transferred to this court from the Federal Circuit Court.  An Independent Children's Lawyer was also appointed on that day.

17. On 19 April 2016 the child had a conversation with a Ms O, in which she indicated that she obtained pleasure from putting a hose near her vagina and squirting water on it.  She referred to it as “the secret nipple.”

18. On 30 March 2016 the Family Report writer, Mr S, conducted interviews with the parties, although in doing so, he determined not to observe the father and child, given the length of time since the child had last seen him.  Ultimately he prepared a Family Report, in which he identified that he believed the father’s risk of sexual abuse of the child is low.

19. Thereafter, and notwithstanding the fact that the father had not spent time nor communicated with the child since November 2014, the child has continued to, on occasions, make intermittent statements consistent with having been sexually abused, and to act out in sexual ways.  Thus, for instance, on 22 April 2016 the maternal grandmother asserts that she saw the child inserting an item into her vagina, and on 4 May 2016 the mother identified that the child had been taking photographs of her genitals with the mother’s mobile phone.  Likewise on 5 July 2016 the mother says that the child started licking and kissing the mother’s arm, and touching the mother’s breast.

20. On 15 October 2016 the mother says that she was advised by a work colleague that pornographic photographs of her were contained in a profile, ostensibly hers, on a sex/dating website on the internet.  The father denies that he created that profile on the website, although he does concede that he has, or at least in the past had, possession of images of the mother of a sexual nature, consensually taken during the course of their relationship.

21. This matter was listed to come on for trial before me in April 2017. However, on 6 February 2017, the mother was diagnosed with a brain tumour.  Thereafter the trial was vacated, and the mother embarked upon a course of treatment which was successful.  Ultimately in October 2017 the matter was set down for trial in May 2018, and it proceeded then.

22. In January 2018 the mother says that she saw a man of a similar build to the father close by her.  She says that she froze, was unable to move, and felt powerless.  She claims that she was shaking, that her teeth chattered, and that she was in extreme fear.  She has reported that to her psychologist.

23. On 10 April 2018, at the Independent Children's Lawyer’s request, the father submitted to a drug test.  Although in his trial affidavit he said that he thought that test would be negative, in fact it tested positive for cannabinoids/THC.  It is obvious that the father continues to, at least occasionally, use marijuana.  The father also tested positive for codeine, although he explains that on the basis that he was taking strong pain medication.

Current situation

1. As at the time of the trial before me, the father was in spasmodic casual employment as a sub-contract tradesman, but his primary source of income was derived from a pension arising from his care of his terminally ill mother.  He continues to reside in the parties’ former shed/house.  As I have indicated, he has not seen the child since November 2014.

2. For her part, the mother has moved from the F Town to K Town itself, and resides at an address which she was not required to disclose.  The mother is on a return to work program, which is the principal reason why she says she moved to K Town, albeit she only works limited hours.  She finds her employment enjoyable and intends to continue in it.  The child lives with the mother, and is presently attending a school where, on all accounts, she is doing well. 

THE ISSUES

1. With the assistance of the parties during the course of the Trial Management Hearing, I identified that the following were the issues in these proceedings, in the sense that their determination was likely to substantially inform their ultimate outcome:

   1.What is the nature of the relationship between the child and each parent.

   2.What risk, if any, does the father pose to the child:

   (a)     Illegal substances;

   (b)Family violence;

   (c)Allegations of sexual abuse;

   (d)Criminal history.

   3.What risk, if any, does the mother pose to the child:

   (a)Illegal substances;

   (b)Psychological harm.

   4.What is the likely impact of any changes in the child’s current circumstances.

   5.Would the child benefit from a meaningful relationship with the father, and if so, how might it be facilitated.

   6.Would the mother facilitate a meaningful relationship between the father and child.

   7.Would the parties’ communication support equal shared parental responsibility.

2. Once I have considered the relevant statutory provisions and legal principles, but in advance of a review of residually relevant s 60CC considerations, I will address those issues, and then determine the appropriate parenting proceedings in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

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

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

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

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

   (c)      the gravity of the matters alleged.

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

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

Abuse, neglect and family violence

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

   Abuse, in relation to a child, means:

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

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

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

   (d)      serious neglect of the child.

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

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

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

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

The notion of unacceptable risk

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

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

1. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:

   20. 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 parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 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] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   …

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

2. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

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

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

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

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

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

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

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

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed.  The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests.  Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account.  A re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].

3. That approach was taken one step further by the Full Court in Sedgley & Sedgley (1995) FLC 92-623, in the context of the husband who had for many years intimidated the wife, failed to return the child at end of access periods and otherwise behaved in an intimidating and bullying way with no regard to compliance with Court orders. At 82,259 the Court said:

   Whilst the welfare of the child might require some continuity of contact with a non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.

4. Plainly however as adverted to by the Court in Sedgley itself, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

CREDIBILITY OF WITNESSES

Overview

1. Credibility looms as a significant issue in this case, because the father claims that the mother’s asserted likely reaction to him spending time with the child again, is not genuinely held by her.  He asserts that the mother has engaged in a campaign against him, to ensure that he never again spends time with the child.  He claims that the mother has told people that, and indeed led evidence from a witness to that effect. 

2. On the other hand, although the way in which the mother’s case was prepared suggested that she might mount a claim that the father was an unacceptable risk of harm to the child, rather than simply her believing him to be, ultimately that was not the way in which her case was pressed.  Therefore the father’s credibility is not, in any real sense, raised as a significant issue in this case, in that his veracity is unlikely to substantially inform the outcome.  Nonetheless it seems appropriate that I should make some observations in relation to the credibility of key witnesses.

The father

1. The father’s credibility was only pressed as an issue insofar as his asserted dishonesty informed the mother’s belief as to the level of risk of harm which he posed to the child, and therefore her likely reaction to the reintroduction of the child to the father.

2. A number of instances of the father’s alleged untruthfulness were emphasised by counsel for the mother.  Perhaps the most significant was evidence which the father gave on the second day of the trial, in relation to a knife that had been retrieved from his car, post-separation.  Initially, he plainly indicated that the knife was a “pocket knife,” but on the following day, in further cross-examination by counsel for the mother, retreated from that, and conceded that it was not a pocket knife, but rather had a total length of about 260mm, and thus in old fashioned terms, about 10 inches long.

3. Further instances of the father’s alleged lack of credibility were relied upon, including the occasion when, shortly after bail conditions imposed upon him required him to have no contact with the mother, he nonetheless drove past her house and stopped, and another instance of him, again notwithstanding the bail conditions, queuing in the same line at a supermarket checkout directly behind the mother. 

4. However as I indicated to counsel for the mother during the course of submissions, those latter two instances do not really seem to me to relate to credibility, but rather are illustrations of the father acting from a sense of a rights-based entitlement, which was virtually admitted by him in the course of his evidence.  The father asserts that he is, and assuming they did not occur, likely is, highly indignant at the mother having sought to have him charged with the most horrendous crimes against his own child, and believes that she did so as part of a campaign to ensure that he was driven from the child’s life. I am well satisfied that any such belief may explain much of the father’s post-separation conduct in this case.

5. As expressly conceded by counsel for the mother, the evidence could not possibly persuade me that the father in fact sexually abused the child.  Therefore it seems to me I must also accept that the evidence compels that the father’s indignation is more likely than not to have a legitimate factual basis. That, of course, does not excuse his conduct.

6. I do not construe the father’s several alleged breaches of bail or domestic violence orders, as demonstrating dishonesty.

7. Moreover, I am not persuaded that his differing evidence on successive days in relation to a knife is evidence of general dishonesty. Rather, I am satisfied that the father was mindful that the knife in question was a somewhat intimidating looking weapon, at least when out of its sheath, and was probably anxious to downplay any suggestion of it being such a weapon in the course of his evidence.  He was likely so mindful because the notion that he carried such a weapon concealed in his car might have tended to raise questions about his need to do so, especially given his involvement in the drug culture.  His asserted explanation, namely that it was for protection of the mother when driving in the event that someone entered the car, seems far-fetched, although it cannot be wholly dismissed.

8. During the trial there were several examples of the father being prepared to concede the use of illicit drugs over several years, and otherwise on occasions to make concessions against interest.

9. Ultimately I am not satisfied that the father was generally dishonest in giving his evidence, or that his evidence should require to be corroborated in some detail before it is accepted.  On the whole, I accept that he was generally attempting to give truthful evidence.

The mother

1. The mother’s credibility is relevant because of the father’s assertion that she has, in effect, manufactured the complaints against him, and that her asserted fear of him resuming time with the child is not genuinely held by her.  That was not the position advanced by the Independent Children's Lawyer, who accepted that the mother’s fear was genuine, but unjustifiable.

2. In support of his claim, the father points to evidence that post-separation, in effect, the mother intended to remove him from the child’s life, save only that she would tell the child that she was “conceived in love.”  That evidence was led from the father’s sister, Ms Q. Interestingly, Ms Q had long been a friend of the mother’s prior to the parties’ relationship commencing, and indeed had effected the parties’ introduction (accepting that they had known each other from attending the same school).  She continued friends with the mother post-separation, and was obviously a confidant of hers until, in about 2016, she says that the mother indicated that she no longer intended to communicate with her, because she was “in witness protection.”  Whilst the mother denies that she had such a conversation with Ms Q, I am well satisfied that it occurred, in part because, as shall be seen, I accept Ms Q’s credibility, particularly on this issue.

3. However it is altogether another thing to say that the mother is therefore not an honest witness.  She has a long history of diagnosed depression and anxiety predating separation, and even on the father’s case, is given to over-exaggeration and histrionic, attention-seeking behaviour.  A person who experiences the world from a position of anxiety, or who is prone to dramatize, or express things in exaggerated ways, is not necessarily therefore being deliberately untruthful, but is rather behaving in accordance with their condition or personality.

4. In the witness box, the mother presented as highly anxious, and on occasions, in the courtroom outside of the witness box, appeared distressed and teary.  I am satisfied that the mother does indeed suffer from anxiety (it was not challenged in any meaningful way by the father) and hence her experience of the world needs to be construed with that in mind.  Further, I am satisfied that the mother does have a dramatic aspect to her character, and does see the world not only through the prism of her anxiety, but also from the perspective of a somewhat dramatic, and perhaps on occasions histrionic, person.  As such, whilst her evidence does not need to be rejected unless it is independently corroborated, it may, on occasions, need to be “turned down” in volume, or at least intensity, in order to more likely describe an objective experience.  However I am not satisfied that the mother was generally dishonest in the ordinary sense of that word.

Ms Q

1. Ms Q, the last witness in the trial, proved ultimately, in my judgement, to be a critical one.  I have already detailed that she was a longstanding friend of the mother’s prior to the parties’ relationship commencing, effected the parties’ (re)introduction, remained friends with the mother and father during the course of their relationship, and post-separation attempted to remain both a friend of the mother’s, and at least on cordial terms with the father. 

2. Her evidence was that, post-separation, the father was desirous of reconciliation with the mother, and sought to use Ms Q’s influence to that effect, which she refused.  She said that made the father angry with her.  I accept that evidence is likely true, because it is common sense.  However to her credit, she continued her friendship with both the mother, and (albeit on somewhat strained terms) with the father, until the mother’s strange conversation with her, to the effect that she wished to desist communication with her because she was “in witness protection.” 

3. I have indicated that I am well satisfied that conversation occurred, notwithstanding Ms Q being challenged in relation to that with some vigour in cross-examination by counsel for the mother.  Not only was her demeanour somewhat emphatic during the course of her refuting that challenge, but no other explanation was offered by the mother as to why she and Ms Q had not communicated since that time.  There was certainly no evidence of a falling out between them, nor evidence that Ms Q had, for some reason, changed her primary allegiance from the mother back to the father.  Absent any other explanation being proffered by the mother, it seems that the only viable explanation is as contended for by Ms Q.

4. In all other respects, Ms Q was a commendable witness.  The most telling example of that was, when under cross-examination by counsel for the Independent Children's Lawyer, she was asked whether she was prepared to be a supervisor of the father’s time with the child.  Far from toeing some party line supportive of her brother she, somewhat unexpectedly, said that she did not wish to be placed in a position where she could be involved in any further allegations generated by the mother.  To my mind, that demonstrated the complete impartiality of her evidence in these proceedings, even accepting that she does have some family allegiance to her brother.

5. Where her evidence is in conflict with that of the mother, I prefer the testimony of Ms Q.

Other witnesses

1. It is unnecessary to reverse the credibility of the other witnesses before me, as no serious challenge was made to them.  To the extent that there were issues raised, if necessary I will discuss those in the context of particular factual situations.

ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN CHILD AND EACH PARENT

1. I have already noted that the father has neither spent time, nor communicated, with the child since November 2014.  Moreover, Mr S did not observe the father and child in the course of his Family Report interviews, however as I have indicated, he was concerned about effecting reintroduction in the course of the Family Report interview.  Further, Mr S’s interviews and Family Report are now of some vintage. 

2. Nonetheless, in oral evidence Mr S said that during the course of his engagement with the child, he thought there was a clear pattern of positive first person memory of the father, which he thought was age appropriate and real.  He thought that in 2014 the father and child’s relationship had been an adequate one, but since then common sense suggests that it has necessarily diminished.  However he could not say whether the relationship was presently intact or not, but expected that the child would have some residual memory of the father, which at least when he had most recently spoken to the child, was a positive one.

3. As to the child’s relationship with the mother, Mr S opined that there was no issue of concern that he identified, and he thought that there was a normal interaction between the mother and the child, whose primary attachment likely lay with her.

4. I accept all of that evidence.

ISSUE 2 – RISK TO CHILD POSED BY FATHER

Overview

1. As at 16 June 2016, when the list of issues was first distilled in the course of the Trial Management Hearing on that day, the mother’s case was that the father posed an unacceptable risk of direct harm to the child.  However as I have observed, that was not the way that she ultimately put her case in submissions.  Rather she conceded that her case for restraining the father from spending any time or communicating with the child whatsoever, exclusively lay in her asserted reduction in parenting capacity if he were to do so.

2. The Independent Children's Lawyer did not assert that the father posed an unacceptable risk of harm to the child of any species.

3. Accordingly I can therefore deal with this issue in a much broader way than otherwise might have been required of me.

4. There can be no doubt that the father has frequently ingested marijuana, and likely has done so for much of his adult life.  He freely concedes to having experimented with other drugs on numerous occasions.  That said, he denies that he has ever been under the influence of drugs whilst the child has been in his care, and points to his practice of drug taking when he was working, which would see him ingest drugs on the first week of his time off, but not thereafter.  That may tend to suggest that his use is able to be controlled by him, and is genuinely recreational in nature.

5. However I am further absolved from analysing the nature of the risk which the father poses because of the case that he and the Independent Children's Lawyer ultimately mounted, namely that his time with the child should, under the proposed interim orders, be supervised in any event.  Whatever risk which the father may pose to the child arising from his ingestion of illegal substances, in my view can be adequately mitigated by supervision.

6. As to family violence, the mother did not assert that the father posed an unacceptable risk of harm to the child on this basis, although she maintained her allegations of family violence against him.  I am not satisfied that the father’s history of family violence, comprising, it would seem, largely controlling and coercive behaviour, is of a magnitude that poses a direct risk of harm to the child.

7. As I have already observed, it was conceded by counsel for the mother that the evidence would not support a finding that the father has sexually abused the child, and further, Mr S’s assessment of the father was that he was a low risk of abuse.  He was not challenged in relation to that opinion.

8. In any event, even if the father were to pose some risk of sexual abuse to the child beyond that which any member of the public may pose, it is again important to emphasise that the father and Independent Children's Lawyer contend that any such risk is adequately mitigated by their proposed orders for supervision of the father’s time.

OTHER ORDERS

1. Otherwise there will be orders as contended for by the Independent Children's Lawyer.

CONCLUSION

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

I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 31 July 2018.

Associate:

Date: 31 July 2018