TATE & RALPH
[2012] FMCAfam 279
•4 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TATE & RALPH | [2012] FMCAfam 279 |
| FAMILY LAW – Parenting matter – allegations that the father has abused family members – father convicted in March 2011 of six counts of indecent acts with a child under the age of 16 and two counts of indecent assault – father denies all allegatiowns made – mother alleges father should spend no time with the child due to the risk of abuse to the child by the father – mother seeking sole parental responsibility – father seeking supervised time with the child until the child attains the age of 16 – Court satisfied that there would be an unacceptable risk of abuse to the child if the child were to spend time with his father – no time ordered – the child to live with the mother and the mother to have sole parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DA |
| W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129 Fan & Napoli [2011] FMCAfam 761 |
| Applicant: | MS TATE |
| Respondent: | MR RALPH |
| File Number: | MLC 3304 of 2010 |
| Judgment of: | Bender FM |
| Hearing dates: | 29 February and 1 March 2012 |
| Date of Last Submission: | 1 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Arnold |
| Solicitors for the Applicant: | O'Farrell Robertson McMahon |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr McLeod |
| Solicitors for the Independent Children’s Lawyer: | Andrew Webb Family Law |
ORDERS
The mother have sole parental responsibility for the child [X] born [in] 2007 (“[X]”).
[X] live with the mother.
[X] spend no time with or communicate with the father.
IT IS NOTED that publication of this judgment under the pseudonym Tate & Ralph is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BENDIGO |
MLC 3304 of 2010
| MS TATE |
Applicant
And
| MR RALPH |
Respondent
REASONS FOR JUDGMENT
Introduction
The issue for determination in this matter is whether the parties’ son [X] born [in] 2007 (“[X]”) should spend any time with his father.
The father was born [in] 1974 and has an acquired brain injury as a result of injuries sustained when he dived into the Murray River in 1991. At that time, he suffered incomplete quadriplegia and continues to have considerable weakness on his left side.
The father was unrepresented at the final hearing.
Given the father’s health issues, he was asked at the commencement of the final hearing whether he understood the nature of the proceedings and whether he felt able to represent himself in the proceedings. The father indicated that he fully understood the nature of the proceedings and wished for the matter to proceed.
As the father did not have copies of all the material that was before the Court, copies were provided to him and the matter was adjourned to 10.30am the following morning to enable him to properly read and consider all the material.
The Court acknowledges and thanks the father’s former solicitor, Ms F, who assisted the father at the commencement of the final hearing by providing advice and an explanation of the material that had been provided to him.
In 2006, the father pleaded guilty to two charges of indecent assault on an adult and was sentenced to a community based order.
In 2007, the father’s sister Ms M disclosed that the father had sexually abused her in her childhood when she was nine years old and he was approximately 15 years old. Whilst the father agrees that his sister made this disclosure, he has no memory of any abuse occurring.
In September 2007, allegations were made that the father had sexually abused his daughter [U] born [in] 1995 (“[U]”) between 2004 and 2005 when she was nine years of age.
In September 2007, there were allegations made that the father sexually abused [U]’s aunts who were aged 15 years old and nine years old respectively at the time of the alleged abuse.
On 9 March 2011, the father was found guilty by a jury of 12 in the County Court of six counts of indecent acts with a child under the age of 16 and two counts of indecent assault in relation to [U]’s aunts. He was convicted and sentenced to 22 months’ imprisonment wholly suspended for three years and to a community based order.
In May 2011, the father stood trial in the County Court in relation to the charges involving [U] being 12 counts of indecent acts with a child under 16 and four counts of incest. At the end of the three day trial, there was a hung jury.
In August 2011, there was a re-trial in the County Court in relation to the charges against the father involving [U]. Again after a three day trial, there was a hung jury.
The mother seeks orders that she have sole parental responsibility for [X], that [X] live with her and that there be no time or communication between [X] and the father.
It is the mother’s case that the father’s history of abuse of young children means that there is an unacceptable risk that [X] would be exposed to sexual abuse if he spent time with the father.
The mother opposes any orders for supervised time between [X] and the father because of the impact an order in those terms would have on her parenting capacity and because she does not believe such time would be in [X]’s best interests.
The father is seeking orders that [X] spend time with him for three to four hours either weekly or fortnightly, with such time to be supervised by his mother until [X] attains 16 years of age.
The Independent Children’s Lawyer’s proposal is that the mother have sole parental responsibility for [X], that [X] live with her and that there be no time or communication between [X] and the father.
The Independent Children’s Lawyer is of the view that there is an unacceptable risk of abuse if [X] spends time with the father. Further the Independent Children’s Lawyer does not support orders that [X] have supervised time with the father due to the impact of such time on the mother and her parenting capacity, the absence of any suitable supervisor and his view that such time would not be of benefit to [X].
Background
The father was born [in] 1974 and is 37 years of age. As noted earlier, he has an acquired brain injury and physical limitations arising from an accident in 1991 when he was a teenager. He is in receipt of a disability pension and is currently without a partner.
The father has three children from prior relationships, [U] aged 17 years, [V] born [in] 1999 (“[V]”), aged 12 years and [W] born [in] 2000 (“[W]”), aged 11 years.
The father has not seen [U] since she made the allegations in 2007 that she had been sexually abused by him.
The father has not met [W]. [W] lives in Canada with her mother. [W] was conceived after the father had a brief relationship with her mother whilst he was in Canada. She was born after the father returned to Australia.
The father has spent limited time with [V] who lives with his mother in [Suburb omitted]. The father last saw [V] in June/July 2011. It is his evidence that he speaks to [V] on the phone and that [V]’s mother keeps the father advised of his progress via Facebook.
The mother was born [in] 1976 and is 35 years of age. She is engaged in home duties. She has two older children from previous relationships who live with her, namely [Q] born [in] 1997 (“[Q]”), aged 14 years and [R] born [in] 2001 (“[R]”), aged 11 years. Neither [Q] nor [R] spend time with their fathers.
The mother is engaged to Mr C and they are intending to marry in April 2012. Mr C is a [occupation omitted] who works in Melbourne during the week and returns to [Suburb omitted] on weekends.
The parties entered a relationship in May 2006 and commenced cohabitation in June 2007 at which time the father moved in with the mother.
In September 2007 when the police commenced their investigation of the father in relation to the sexual abuse allegations, the Department of Human Services commenced child protection proceedings and required the father to vacate the mother’s home.
On 12 May 2008, the mother agreed to a Supervision Order for 12 months in relation to [Q], [R] and [X]. The terms of that order were that the children live with the mother and spend supervised time with the father.
[Q] and [R] spent time with the father until June 2009 but thereafter refused to spend time with him.
From September 2007 until March 2011, [X] spent time with the father once or twice per week for two to three hours, with such time being supervised by the mother.
In April 2010, the mother commenced these proceedings. On 25 May 2010, interim consent orders were made which provided that [X] live with the mother and spend each alternate Wednesday with the father between 10.00am and 1.00pm, with such time to be supervised by the mother and to take place at the [omitted] in [Suburb omitted].
On 27 July 2010, orders were made listing the matter for final hearing on 22 November 2010 and for the preparation of a Family Report. Further interim consent orders were made for [X] to spend time with the father, with such time to be supervised by the mother on a monthly basis from 10.00am to 1.00pm on Wednesday and 10.00am to 12.00pm on the Thursday immediately following the Wednesday time. At the time of the making of those orders, the father was living in [Suburb omitted] with his then girlfriend.
Due to the pending criminal matters against the father in relation to [U] and [U]’s aunts, the final hearing date was adjourned administratively on four occasions to 21 November 2011.
As noted previously in this judgment, on 9 March 2011 the father was found guilty of six counts of indecent acts with a child and two counts of indecent assaults in relation to [U]’s aunts.
Upon the father’s conviction for sexual assault of [U]’s aunts, the mother stopped all time between [X] and the father and [X] has not spent any time with the father since March 2011.
On 21 November 2011, the matter was adjourned for final hearing in the week beginning 27 February 2012 in the [omitted] Circuit and orders made for the preparation of an updated Family Report.
The Evidence
The Mother
It is the mother’s proposal that [X] live with her, that she have sole parental responsibility for [X] and that he spend no time with or communicate with the father.
It is the mother’s genuinely held belief that if [X] were to spend any time with his father, he would be exposed to a real risk of sexual abuse.
It is the mother’s evidence that when the allegations were first made against the father, she accepted his denial that the abuse had occurred and accordingly she encouraged the relationship between the father, [X] and her two older children [Q] and [R]. It is her evidence that because of the seriousness of the allegations and the subsequent charges against the father she was of the view that any time [X] spent with the father would have to be supervised. She made enquires with [omitted] Children’s Contact Centre but was advised that due to the nature of the allegations made against the father, they could not provide assistance or supervision for any time between him and the children. Accordingly she agreed to supervise that time.
It is the mother’s evidence that she found supervising the time that the father spent with [X] difficult, particularly as, at least initially, the father was focusing on trying to persuade her to continue or resume their relationship rather than on his time with [X].
It is the mother’s evidence that once the father was convicted of sexually abusing [U]’s aunts, she formed the view that it was not appropriate for [X] to spend time with the father. It is her belief that [X] would be at risk of abuse if he were to spend time with the father and further that given the father’s behaviour, he is not an appropriate role model for [X].
It is the mother’s evidence that she does not feel emotionally capable of supervising any time between [X] and the father if the Court were to order such time to take place.
The mother also gave evidence that she would be extremely distressed if the Court were to order another supervisor to supervise time between [X] and the father. It is her evidence that she would be continuously worrying whether the supervisor was closely monitoring [X] and the father; whether the supervisor had left [X] alone in a room with his father; or that [X] had some how been exposed to harm and that she had not done everything within her power to protect him.
The mother gave evidence that in or around 2007 she was told by someone who knew both the father and herself that his sister Ms M had disclosed that the father had abused her when she was a young child. It is the mother’s evidence that she confronted Ms M in relation to this issue and that Ms M confirmed that the father had abused her when she was nine, that she would hide in the cupboard to get away from the father and that the abuse had continued until she reached puberty.
It is the mother’s evidence that she was very distressed when Ms M revealed the abuse to her and that she spoke to both the father and his mother in relation to Ms M’s disclosure. It is her evidence that the father told her he could not remember any such abuse occurring but agreed that Ms M had also told him that he had abused her when she was a child.
It is the mother’s evidence that the father’s mother came and spoke to her and indicated that she did not believe that the abuse had occurred as she was of the view that Ms M was severely depressed at the time that she made the allegation of abuse.
It is the mother’s evidence that she does not believe that any of the father’s family would be suitable to supervise time between the father and [X] as they are in denial about the seriousness of his behaviours. The mother argues that the father’s family do not believe any of the allegations of abuse by the father and that they believe he was wrongly convicted of the abuse of [U]’s aunts. It is the mother’s evidence that the father’s family do not accept that there is any risk to [X] if he were to spend time with the father.
It is the mother’s evidence that her daughter [Q] was molested when she was four years of age by her then partner’s son. Whilst fortunately [Q] has no memory of this abuse, the mother continues to be very distressed that she did not protect [Q] from that abuse.
It is the mother’s evidence that when the abuse to [Q] was revealed, she became extremely distressed and as a result suffered depression and anxiety for many years. The mother received medical intervention including antidepressants during this period.
It is the mother’s evidence that if the Court were to make orders for [X] to spend time with his father, her levels of anxiety and her depression would be greatly exacerbated and her ability to properly parent [X] as well as [Q] and [R] would be severely impacted.
It is the mother’s evidence that she currently has an Intervention Order against the father for the protection of herself and [X]. It is her evidence that she would be seeking its extension in March 2012 in order to keep the father at arm’s length, as the mother believes that if there is no Intervention Order in place, the father will have no hesitation in coming up to her or to [X] if he were to see them on the street.
The mother gave evidence that she is engaged to Mr C who she has known since she was 15 and whose parents are close friends with her parents. She indicated that she and Mr C are intending to marry in April 2012 and are in the process of organising their wedding.
It is the mother’s evidence that Mr C, a [occupation omitted], lives and works in Melbourne during the week and returns to [Suburb omitted] on the weekends. It is the mother’s evidence that Mr C has two daughters aged 9 and 16 years from previous relationships. The mother stated that Mr C sees his nine year old regularly and that he sees his 16 year old less often. It is the mother’s evidence that Mr C and [X] have an excellent relationship.
The Father’s evidence
The Father
It is the father’s proposal that he spend three to four hours each week with [X], with such time to be supervised by his mother, the paternal grandmother.
It is the father’s evidence that given his conviction for sexual abuse and the outstanding matters in relation to his daughter [U], he accepts his time with [X] will have to be supervised and that such time will need to be supervised until [X] is of the age of 16.
When questioned why supervision would need to continue until [X] is 16 years old, the father indicated that this was his understanding of the restrictions on him as a result of him being placed on the sexual offenders list after his convictions in relation to [U]’s aunts.
It is the father’s evidence that he and [X] have a good relationship and that he does not want to lose that relationship. The father told the Court that he will do anything that the Court requires of him in order to be able to spend time with [X].
It is the father’s evidence that he does not want [X] to grow up wondering why his father was not in his life and that he believes that children should be able to see their parents, no matter what allegations have been made in relation to their behaviour.
The father agreed that he had been convicted of indecent assault on a former girlfriend arising from an incident in 2006. It is the father’s evidence that he had been wrongly advised to plead guilty by his then legal practitioners and that no assault had taken place.
The father agreed that his sister Ms M had made allegations that he had abused her when she was a child. It is his evidence that she made these allegations after he had been accused of abusing his former girlfriend. It is his evidence that he had no memory of ever abusing Ms M. Further, it is his evidence that he was not aware of the precise nature of the allegations against him by Ms M other than that the abuse was alleged to be of a sexual nature.
It is the father’s evidence that his mother was aware of his sister’s allegations and that he understood his sister to have had some discussions with the mother in this matter.
It is the father’s evidence that there was no action taken by the family in relation to the allegations raised by his sister.
In relation to the allegations of abuse of [U]’s aunts and his subsequent conviction, the father’s evidence can at best be described as vague. It is his evidence that the allegations arose from a time when he was massaging [U]’s aunts. He stated that the evidence that the two girls gave to the County Court at trial was contradictory. He gave the very strong impression that he continues to deny that he had behaved in any inappropriate way towards [U]’s aunts and that he had been wrongly convicted.
As to the charges against him in relation to his daughter [U], the father indicated that the behaviours alleged include sexual penetration and the touching of her vagina.
The father vehemently denies the allegations made against him by [U] and confirmed that there had been two hung juries in relation to the trials conducted in 2011. It is his evidence that he believes that the police were contemplating a third trial but that he had not been advised at this time as to whether a third trial was proceeding.
It is the father’s evidence that he did not believe that the charges and convictions against him were in any way relevant to him spending time with [X]. He was adamant that he did not pose any risk to [X] if [X] were to spend time with him.
When questioned as to what impact he felt his spending time with [X] would have on the mother, he was dismissive that there would be any impact on her. When it was put to him that she had been visibly distressed in the witness box and had nearly broken down when questioned about the impact any orders for the father to spend time with [X] would have on her, his response was:
“I feel like that everyday.”
When the father was interviewed by Mr O for the preparation of the updated Family Report, Mr O sets out the following interaction between himself and the father in paragraph 16 on page 11 of his updated Report of 23 January 2012:
He noted that he will fight for [X] ‘left right and centre...there is no way that I will go through this and not see him until he is 16. Intervention Order or not, if I see him in the street I’ll go straight up to him. What I have been through in the last 4 years and not seeing [X] in the last 12 months...I don’t care (about consequences such as breaking an Intervention Order or breaching a suspended sentence.)’ He noted that he has been in remand previously (a warrant was out for his arrest whilst he was in Canada. He claimed that he was unaware. This related to Rape charges against him involving his former partner).
The father was cross-examined as to whether his comments to Mr O reflected his current attitude. The father confirmed that whilst Mr O had accurately set out what he had said on the day of the interviews for the Family Report, he had been very angry at the time he was speaking to Mr O. The father indicated he has now rethought his position and that he would not breach an Intervention Order or approach [X] if he were to see him in the street.
It was the father’s evidence that he was in the court room to fight for [X] and his right to see him as he believed that every child had the right to see their parent.
Mrs P
Mrs P is the paternal grandmother. She swore an affidavit on behalf of the father on 20 May 2010 and gave viva voce evidence at the final hearing.
It is the paternal grandmother’s evidence that she understood the father’s proposal was that he spend time with [X] each week supervised by her and indicated to the Court that she was willing to undertake that role.
It was put to the paternal grandmother by Counsel for the mother that whilst the mother had no issue with the paternal grandmother coming to visit [X], her concern was that the paternal grandmother would not properly supervise [X] and would allow the father to spend time with [X] on his own. It is the paternal grandmother’s evidence that she understands how the mother feels and that she is very protective of her grandson as she is with all her grandchildren.
The paternal grandmother confirmed that she holds the father’s medical and legal powers of attorney and that she manages his affairs for him.
The paternal grandmother confirmed that her daughter Ms M had disclosed to her that she had been abused by the father and that this had been an absolute shock to her. She confirmed that she had organised counselling with the Centre Against Sexual Assault (“CASA”) for Ms M but that she did not know the details of the abuse save that it was “something sexual.”
It was put to the paternal grandmother that, given the seriousness of the allegations by her daughter, it would have been appropriate to refer the father for some therapeutic intervention as well as to refer Ms M to CASA. Her response was that it was not up to her to make that choice for her son.
The paternal grandmother was asked specifically if she believed that the father had abused Ms M. It was the paternal grandmother’s evidence as follows:
“I would not answer other than to suggest young women make outrageous statements.”
The paternal grandmother then attempted to clarify this evidence. She stated that she was not saying that Ms M had made up the allegations but she could not say whether it was the truth or not as without independent evidence she would not be in a position to say whether her son had abused her daughter.
The paternal grandmother was questioned in relation to the father’s conviction of sexually abusing [U]’s aunts. Whilst it was her evidence that she had been at the trial every day, she was, somewhat surprisingly, unable to recall the specific details of the alleged abuse other than to say that both of the victims had given completely different stories.
In relation to the allegations of abuse by [U], it was the paternal grandmother’s evidence that she was sitting on the fence and waiting to see what the final outcome of the proceedings was going to be.
The paternal grandmother was asked whether her son should undertake therapeutic counselling given the seriousness of the allegations made against him and his convictions for indecent assault. It was her response that the only counselling her son had attended was following an attempted suicide in 2010 when the Crisis Assessment and Treatment (“CAT”) team was called after he had driven his car for miles and miles and indicated that he had been looking for a tree to drive into. She said that this was as a result of him finding out that the mother in these proceedings was in a relationship with another person.
Mr O
Mr O is a Regulation 7 Family Consultant with the Federal Magistrates Court. Mr O prepared two Family Reports in this matter, the first dated 13 October 2010 and the second dated 23 January 2012. Mr O also gave brief viva voce evidence at the final hearing of this matter.
In his first Family Report of 13 October 2010, under the heading Evaluation, Mr O noted as follows at page 18:
Evaluation
The writer was struck with how much this matter was littered with discussion about possible sexual abuse allegations naming Mr Ralph as the alleged perpetrator and others previously known to him as possible victims.
There was a sense of expectation by both parents that other Court proceedings that have been on hold for 3 years would eventually shed light upon the veracity of such allegations. Clearly they held differing views as to what the likely outcome would be.
It was clearly evident that Ms Tate viewed Mr Ralph with suspicion and equally clear that Mr Ralph was waiting to be vindicated.
In all, there was too much uncertainty and too much discussion about possible risk factors and alleged abuse to make any other recommendation in this matter other than a continuation of supervised time.
The writer considered that the parents would manage the current regime in the interim.
In his second Family Report of 23 January 2012 at page 14, Mr O described [X] as a:
very busy young boy, full of energy and keen to keep up with his older siblings.
Mr O conducted a home visit for the purposes of his second Family Report. He noted the mother’s home to be clean and giving every indication that the mother had put in an effort to make it comfortable for all.
Mr O observed [X] with [Q] and [R] and noted that they interacted well as a sibling unit.
Mr O observed that [X] had a solid attachment with the mother as his primary carer and that the mother was noted to be sensitive, responsive and to provide consistent caring messages to [X].
Mr O met Mr C, the mother’s fiancé, on the home visit. Mr O described him as open and honest and that he confirmed his self description as easy going. Mr O observed the relationship between the mother and Mr C to be a positive one and that they both spoke of looking forward to their wedding and having their respective families together on that day.
In the second Family Report under the heading ‘Evaluation’, Mr O sets out the following:
It is given that [X] is at a vulnerable age and, like any child, deserves to be safe and secure in any relationship he has with an adult.
The writer noted that previously there had been a sense of expectation by both parents that County Court proceedings that have been on hold for years would eventually shed light upon the veracity of such allegations. Clearly at that time they each held differing views as to what the likely outcome would be.
Now that the outcome has been clarified, Ms Tate is of the view that her fears have been justified whilst Mr Ralph is adamant that there has been a travesty of justice and is seeking time with [X].
On this occasion it was again clearly evident that Ms Tate views Mr Ralph with more suspicion and is very clear that no time spent is the best outcome for [X].
It was also equally clear that Mr Ralph was wanting to be granted time and sees himself as a victim of a system.
The writer also noted the following for consideration:
1. In the information provided, the writer identified a pattern of non-ownership and non-disclosure by Mr Ralph that was concerning. It appears that, historically, he had not advised Ms Tate of the allegation of Rape by a previous partner. It also appears that Mr Ralph may not have advised Ms N of charges against him. It appears that he has provided limited information to Ms T. The writer wonders if the mother’s of his other children and particularly [V] are aware of the most recent conviction.
2. Ms Tate noted that her relationship with Mr Ralph died the day the Police attended their home in 2007. She has since managed some form of connection with Mr Ralph until there has been clarity of the issues. This has lasted some 4-5 years and the writer considers that she should be commended for being able to do so under such circumstances.
3. It would appear that Ms Tate has a history of depression and would struggle if she was required to send [X] to spend time with his father in any form. Her view is that this may be akin to failure on her part to step up and act as a responsible parent. The writer wonders what this would do to Ms Tate if such an Order was made.
4. [X] is a vulnerable young child who requires protection from potential harm. Ms Tate’s view that he is too young to manage risk is accepted.
5. As a result of charges against Mr Ralph, Ms Tate has had the involvement of Child Protection in her life. It is suspected that had these charges not occurred Ms Tate may never have had to deal with this agency in the way that she had to. Ms Tate has provided every indication that she has acted responsibly and protectively as a parent.
6. Mr Ralph has shown what might be seen as a fixation on [X] more so than his other children. The writer cannot explain why.
7. In the previous assessment, Ms Tate noted that she has been advised by ‘Ms D’ of DHS that should the Court allow Mr Ralph to have time alone with [X] they will seek to intervene.
In the second Family Report under the heading ‘Recommendations’, Mr O stated as follows:
In all, the writer considers that the impact of time spent of [X] with his father seemingly outweighs the benefits for [X] and, as such respectfully recommends that the Court consider an Order that secures Ms Tate as the primary carer and long term decision maker for [X] and recommends the suspension of all time spent.
Mr O further recommended in his second Family Report that consideration be given as to the appropriateness of any other children coming into contact with the father, including his nephews and nieces and his son [V], and that if necessary the Department of Human Services be alerted so that they can become involved if required.
In his viva voce evidence, Mr O stated that whilst in any proceedings he looks for the opportunity for a child to have a relationship with both parents, it was his role to assess whether that relationship would be of value for the child and whether it would be in that child’s best interests.
It is Mr O’s evidence that in his opinion the risks that [X] would face in spending time with his father outweighed any benefit of him having a relationship with his father.
Mr O gave evidence that particularly during his assessment for the second Family Report, he formed the view that the father was less than forthcoming in the information he was providing. Mr O is of the view that the father was minimising the concerns in relation to his behaviours.
Mr O’s evidence is that his recommendation that there be no time between [X] and the father because it poses an unacceptable risk to [X] is reinforced by the father’s minimising of these concerns in relation to his behaviour and by the father’s own evidence.
Mr O made specific reference to the father maintaining that his convictions for abusing [U]’s aunts were a miscarriage of justice, that his plea of guilty to the indecent assault of a former partner was because of inappropriate advice of his lawyers and that he could not remember sexually abusing his sister as indicative of the father failing to acknowledge the seriousness of the allegations made about his behaviours.
Mr O also expresses concern that given the father’s behaviour, his denial of that behaviour and his lack of insight of the impact of his behaviour on the mother that he would not be an appropriate role model for his son.
Further, it is Mr O’s evidence that the risk was not only to [X] but also to his mother as [X]’s carer. Mr O stated that he is very concerned as to the impact on the mother if the Court was to order time between the father and [X].
Mr O was asked to expand on why he was of the view that any orders that [X] spend time with the father would impact negatively on the mother.
It is Mr O’s evidence that the mother has been under considerable stress for a long period of time. Her daughter had been sexually abused and she had lived in the knowledge that her youngest son’s father had serious allegations (and convictions) of sexual abuse of minors and she had been required to supervise time between that person and her son for a long period of time. Given these pressures, Mr O observed that it was not surprising that the mother suffered from depression and anxiety.
It is Mr O’s evidence that if the mother was now asked to let [X] spend time with the father this would increase her anxiety levels dramatically, particularly if she was not present during such time.
It is Mr O’s evidence that it was inappropriate for the mother to continue in the role of supervisor as the stress on her of doing so over a lengthy period would be untenable.
It is Mr O’s further evidence that the heightened level of anxiety the mother would experience when [X] spent time with his father when supervised by someone else would be detrimental to her capacity to care for [X]. It was his evidence as follows:
“I saw the damage that would occur for the mother/child relationship, or her role as primary carer outweighed the benefit [of [X] spending time with the father].”
It is Mr O’s evidence that he did not believe that the father spending supervised time with [X] would be in [X]’s best interests because of the impact of such an order on the mother’s parenting capacity.
The Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
(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).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61DA of the Act creates a presumption of equal shared parental responsibility. Section 61DA of the Act provides:
(1)When making a parenting order in relation to a child, 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.
(2)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:
(a)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
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 61DA of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections (1) and (2) of section 61DA provide as follows:
(1)When making a parenting order in relation to a child, 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.
(2)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:
(a)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
(b) family violence.
If the presumption applies, section 65DA of the Act requires the Court to consider a child spending equal time or substantial and significant time with each parent. Section 65DA of the Act provides as follows:
(1) This section applies when a court makes a parenting order.
(2) It is the duty of the court to include in the order particulars of:
(a) the obligations that the order creates; and
(b) the consequences that may follow if a person contravenes the order.
(3)If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons:
(a)the availability of programs to help people to understand their responsibilities under parenting orders; and
(b)the availability and use of location and recovery orders to ensure that parenting orders are complied with.
(4)The court may cause to be prepared, and given to persons to whom a parenting order is directed, a document setting out particulars of the matters mentioned in paragraphs (3)(a) and (b).
(5)If a person to whom the order is directed is represented by a legal practitioner, the court may request the practitioner:
(a) to assist in explaining to the person the matters mentioned in paragraphs (2)(a) and (b); and
(b) to explain to the person the matters mentioned in paragraphs (3)(a) and (b).
Given the circumstances in this matter, neither party is proposing that orders be made for equal time or significant and substantial time between the father and [X].
Nor is it in dispute that in this matter it is in [X]’s best interest that the mother have sole parental responsibility for [X].
The issue is what, if any, time [X] should spend with the father.
As set out earlier in this judgment, the best interests of this child are paramount when determining what their living arrangements will be.
Section 60CC of the Act specifies matters that must be considered by the Court when determining what is in the child’s best interest. Section 60CC is in the following terms:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
At its centre, this case concerns whether spending time with the father would place [X] at an unacceptable risk of abuse.
In the matter of Fan & Napoli [2011] FMCAfam 761, Federal Magistrate Altobelli made reference to the Full Court of the Family Court decision of W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129. In paragraphs 92 to 115 the Full Court set out in detail the applicable law where the issue of unacceptable risk of sexual abuse is before the Court. As did Federal Magistrate Altobelli in Fan & Napoli (supra), I intend to set out the full extract of the Full Court, albeit it is most lengthy:
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] FLC91-758 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 A, 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.
Assessment of risk to [X]
There are no allegations made that the father has abused [X] at this time.
The central issue in this case is whether there is a risk to [X] of abuse by his father if [X] were to spend time with him in the future.
[X] was only two months old when the allegations in relation to abuse by the father were first raised and the father was removed from [X]’s home. Since then, any time between the father and [X] has been supervised by the mother.
There is a clear pattern in relation to the allegations against the father. Those allegations all involve members of the father’s family and all occurred when the children were about nine years of age.
The father denies any abuse occurred even in the face of those allegations being made by his own sister and in circumstances where a jury of 12 has found him guilty of those offences.
Whilst some concession must be made for the father’s acquired brain injury, his evidence in relation to the allegations made against him was most evasive. The father was loath to answer any questions in relation to the allegations made against him by [U] and by her aunts claiming he was unable to recall the allegation in any detail. This is very difficult to believe since the father sat through a three day defended trial in March 2011 in relation to [U]’s aunts and two lengthy trials that resulted in hung juries in relation to the allegations of abuse against [U].
The father exhibited absolutely no insight or understanding that the allegations made against him and the conviction in the County Court were so serious that they did impact on whether it was in [X]’s best interests to spend any time with him.
The father was of the view that a child should spend time with his or her parent no matter how serious or inappropriate that parent’s behaviour had been.
Mr O raised concerns in his evidence that the father’s behaviour and attitudes were such that he would present as an inappropriate role model to [X]. The Court echoes these concerns.
The father showed a complete indifference to the distress the mother has experienced as a result of his behaviours. He showed no insight as to the impact his spending time with [X] would have on the mother’s capacity to properly care for [X] and her older children or the impact the diminished parenting capacity of his primary carer would have on [X].
It is the father’s proposal that he spend supervised time with [X] for three to four hours each week for the next 12 years until [X] is aged 16. He proposes that his mother perform the role of supervisor.
His proposal is opposed by both the mother and by the Independent Children’s Lawyer. It is also not supported by Mr O, the Family Report Writer.
I am not satisfied that the paternal grandmother would be a suitable supervisor for any time between the father and [X].
It was apparent from the paternal grandmother’s evidence that she does not accept or believe the allegations against the father of his abuse of family members, including her own daughter.
In these circumstances, the Court could not be satisfied that she would place [X]’s interests ahead of those of her son.
The father puts forward no other possible supervisors for his time with [X] other than his mother. A contact centre is not able to provide long term supervision and the father is not in a position to afford the ongoing costs of professional supervision of any time between himself and [X].
The Court must also be concerned about the impact on the mother’s capacity to care for [X] if orders were made for him to have supervised time with the father.
It is the mother’s evidence, which is accepted by the Court, that any such order would cause her extreme anxiety, exacerbate her depression and impact on her capacity to care for [X] and her two older children [Q] and [R].
In his Family Reports and his evidence to this Court, the Family Report Writer Mr O was most concerned in relation to the impact on the mother of any order for supervised time and was of the strong view that it would severely impact upon her parenting capacity.
I am satisfied that there is an unacceptable risk if orders were made for [X] to spend time with his father and that that risk outweighs any potential benefit to [X] of a relationship with his father.
The father’s history of alleged abuse of family members over many years, his denial of such abuse in the face of court conviction and disclosures by his own sister, his lack of insight into the impact of his behaviours on others and the poor role model he presents to [X] are such that the risk to [X] greatly outweighs any benefit to [X] of a relationship with the father.
I am also satisfied that it would not be in [X]’s best interests to make an order for there to be ongoing supervised time between [X] and his father given the lack of suitable supervisors and the impact of such an order on [X]’s primary care giver, the mother.
Accordingly, orders will be made for the mother to have sole parental responsibility for [X], for [X] to live with the mother and that [X] spend no time with nor communicate with the father.
The mother was quite clear in her evidence that she was agreeable to the paternal family visiting [X] in her home. I accept this offer is genuine. If the paternal family choose to visit [X] they will be in a position to keep the father apprised of [X]’s progress and also enable [X] an opportunity to interact with his paternal family. I would encourage them to take advantage of this offer.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 4 May 2012
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