Teel & Brady

Case [2022] FedCFamC1F 338

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Teel & Brady [2022] FedCFamC1F 338

File number: HBC 917 of 2020
Judgment of: McGuire J
Date of judgment: 19 May 2022
Catchwords: FAMILY LAW – CHILDREN – Application by father to spend time with the children of the relationship – Application opposed by the mother who contends that children are at risk of sexual harm in the father’s care – Consideration of unacceptable risk – Finding of unacceptable risk of sexual abuse if time unsupervised – Ordered the parents have equal shared parental responsibility for the children – Orders that the children live with the mother and spend time with the father on a graduated basis cumulating with the children spending time with him every second weekend and during school holidays – Orders that paternal grandparents supervise the children whilst in the father’s care
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 65DAA(3)
Cases cited:

Briginshaw v Briginshaw [1938] HCA 34

Champness & Hanson [2009] FamCA 96

CJV & VAJ (1998) FLC 92-828

Fitzwater & Fitzwater [2019] FamCAFC 251

Isles & Nelissen [2021] FedCFamC1F 295

Keane & Keane [2020] FamCA 99

M v M (1988) FLC 91-979

McCall & Clark [2009] FamCAFC92

N & S and the Separate Representative (1996) FLC 92-655

Napier v Hepburn (2006) FLC 93-303

PST & CPR [2006] FMCAfam 36
Division: Division 1 First Instance
Number of paragraphs: 152
Date of hearing: 22 and 23 February 2022, 7, 10 and 25 March 2022
Place: City N, Delivered Melbourne
Counsel for the Applicant: Mr Doyle
Solicitor for the Applicant: Clarke & Gee
Counsel for the Respondent: Ms Higgins
Solicitor for the Respondent: Bishops Barristers & Solicitors
Counsel for the Independent Children's Lawyer: Mr Murray
Solicitor for the Independent Children's Lawyer: Murray & Associates

ORDERS

HBC 917 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR TEEL

Applicant
AND:

MS BRADY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

19 MAY 2022

THE COURT ORDERS THAT:

1.The mother, Ms Brady, and the father, Mr Teel, have equal shared parental responsibility for the children Y born 2014 and X born 2016 (‘the children’).

2.The children live with the mother.

3.The children spend time with the father as follows:

(a)for six consecutive Saturdays commencing on 28 May 2022 between 10.00am and 5.00pm;

(b)at the conclusion of time in order 3(a) herein from 10.00am Saturday until 5.00pm Sunday for six consecutive fortnights;

(c)at the conclusion of time in order 3(b) herein then each second weekend thereafter from Friday at the conclusion of school until Sunday at 5.00pm (extending to Monday at 5.00pm on a long weekend); and

(d)as from the introduction of time pursuant to 3(c) then for one half of each Tasmanian Gazetted School Holiday period and for the purposes of such time weekend time is to be suspended during school holidays. 

4.For the purposes of Order 3 herein the children’s time spent with…

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AGLC
Teel & Brady [2022] FedCFamC1F 338
Case
[2022] FedCFamC1F 338
Decision Date

CaseChat Overview and Summary

The case of Teel v Brady concerns a dispute between the father and the mother over the care and supervision of their two children, Y and X. The father sought to spend time with the children, but the mother opposed the application, alleging that the children were at risk of sexual harm in the father’s care. The case was heard by McGuire J in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the children were at an unacceptable risk of sexual abuse if they spent time with the father unsupervised and, if so, whether there were any constraints or tools available to mitigate that risk. The court had to consider the intellectual process of a consideration of unacceptable risk, which is more nuanced than a straightforward finding of fact.

The court found that there was no evidence before it to allow an affirmative positive finding that sexual abuse of the children had occurred. However, the court found that there was an unacceptable risk to the children of sexual abuse by the father if time was unsupervised. The court found that the father had a propensity to share a bed with one or other of the children and to assist in their bathing or toileting, which circumstantially sat with the allegations made by the mother. The court also found that the father was generally unsophisticated but who gave his evidence without reluctance, hesitation, or any sense of deflection.

The court ordered that the parents have equal shared parental responsibility for the children. The court ordered that the children live with the mother and spend time with the father on a graduated basis cumulating with the children spending time with him every second weekend and during school holidays. The court also ordered that the paternal grandparents supervise the children whilst in the father’s care.

In conclusion, the court found that there was an unacceptable risk to the children of sexual abuse by the father if time was unsupervised. However, the court found that there were constraints and tools available to mitigate that risk, such as supervision by the paternal grandparents. The court ordered that the parents have equal shared parental responsibility for the children and that the children live with the mother and spend time with the father on a supervised basis.

Orders

Orders of the court

HBC 917 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TEEL

Applicant

AND:

MS BRADY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

19 MAY 2022

THE COURT ORDERS THAT:

1. The mother, Ms Brady, and the father, Mr Teel, have equal shared parental responsibility for the children Y born 2014 and X born 2016 (‘the children’).

2. The children live with the mother.

3. The children spend time with the father as follows:

(a) for six consecutive Saturdays commencing on 28 May 2022 between 10.00am and 5.00pm;

(b) at the conclusion of time in order 3(a) herein from 10.00am Saturday until 5.00pm Sunday for six consecutive fortnights;

(c) at the conclusion of time in order 3(b) herein then each second weekend thereafter from Friday at the conclusion of school until Sunday at 5.00pm (extending to Monday at 5.00pm on a long weekend); and

(d) as from the introduction of time pursuant to 3(c) then for one half of each Tasmanian Gazetted School Holiday period and for the purposes of such time weekend time is to be suspended during school holidays.

4. For the purposes of Order 3 herein the children’s time spent with the father be directly supervised by the paternal grandparents, Mr J and Ms K, or either of them or otherwise as agreed between the parents in writing.

5. The father be and is hereby restrained from sharing a bedroom with the children or either of them AND for these purposes within seven days of the date of these Orders the father is to attach, and at all relevant times operate, an internal lock to his bedroom door during any times that he is in that room and the children are spending time with him in accordance with these Orders.

6. The father be and is hereby restrained from attending to the toileting or bathing of the children or either of them.

7. There be liberty to the parties or either of them to apply in respect of the supervision aspect of these Orders.

8. There be liberty given to the paternal grandparents, Mr J and Ms K, to make application to this Court, on advice to the Independent Children's Lawyer, should they be unable or unwilling to continue in their roles of supervisor.

9. The appointment of the Independent Children's Lawyer remain in place for a period of 12 months from the date of these Orders with liberty to the parties or any of them to apply for further extension.

10. Prior to the children spending time with the father in accordance with Order 3 herein the Independent Children's Lawyer shall directly and personally explain to each of the grandparents, Mr J and Mr K, the obligations of an order for supervision and the ramifications for breach of an order.

11. That within seven days from the date of these Orders, and prior to the children spending time with the father in accordance with these Orders, the paternal grandparents, Mr J and Mr K, shall provide their written undertaking to the Court.

NOTATION

12. The paternal grandparents Mr J and Mr K are invited to contact the Independent Children's Lawyer in the event of any further allegations of improper sexual behaviour by the father from the children.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The Court has had the benefit of an independent children's lawyer, Mr Murray (‘ICL’). By the time of final addresses the ICL argued that there was no evidence before the Court to allow an affirmative positive finding that sexual abuse of the children had occurred. Further, the ICL submitted that there was no reasonable basis for a finding of unacceptable risk to the children of sexual abuse by the father. He, therefore, proposes orders in similar terms to those of the father including an order for equal shared parental responsibility.BACKGROUND The father is 48 years of age and the mother 43 years. The mother has another now adult son, Mr G, aged 25. Mr G lived with the parties for a period during the relationship. The parties commenced living together in either 2012 or 2013. Nothing turns on this discrepancy in historical recollection. Y was born in 2014 and X in 2016. The parties separated in August 2016. Y and X have lived with the mother consistently since their parents’ separation. The children initially spent each alternate weekend with the father. In August 2017 the mother alleges that Y made a disclosure of possible sexual abuse asking her mother if she would “tickle her down here” at which time Y put a hand down her pants and tickled her vagina. In April 2018 the mother made a notification to the Department of Child Safety regarding further disclosures by Y and indicative of possible sexual abuse from the father where the child is alleged to have said “did you know that Daddy has a penis and he does this”. The child then made a shaking motion. The mother stopped time between the children and the father. In April 2018 police advised Child Safety that the mother had cancelled an appointment for Y to be interviewed and that the matter would not be pursued. The parties attended a Family Dispute Resolution Conference. Time between the father and the children was reinstated initially with day visits but then resuming alternative weekend time. In February 2019 the father spent five weeks living at the mother's home to assist with the children whilst the mother recovered from a broken collarbone. On 19 July 2020 the mother again stopped time between the father and the children alleging disclosures by X via a statement “Mummy, stick your finger in my bum… Like Daddy does”. The mother took the children to the M Hospital who by mandatory notification contacted Tasmania Police and F Services which is a sexual assault support service operating in Tasmania. On 22 July 2020 the mother alleges that Y made a disclosure, repeated to a police officer, that “Daddy touched me down there”. In July 2020 the mother alleges that she noticed behavioural changes in both children with X commencing having nightmares. Between August 2020 and February 2021 the mother facilitated counselling for the children at F Services. On 12 September 2020 the mother alleges that Y stated “Daddy stuck things in my ears, nose, and my vagina. He is a baddy” “he made me and X do things, but I don't want to tell you now, maybe another day”. The mother further alleges that Y told the mother that the father made her watch movies “to show me what to do and how it's done”.

Evidence

Evidence Before The Court

As indicated in my reasons in Isles & Nelissen[15] I respectfully agree with the view of Austin J and the analysis of McEvoy J as to the intellectual process of a consideration of “unacceptable risk” which must, in my view, be more nuanced than a straight forward finding of fact, being a past event, on the balance of probabilities where circumstances can be envisaged where there is a finding of past fact of sexual abuse but an analysis of risk not reaching the stage of “unacceptable” whether by the imposition of constraints or tools available to courts to mitigate that risk or even where a repetition of the past abuse might not be likely because of the original fact being a single event or aberration; successful therapy accompanied by sincere remorse and insight; and/or the original event being completely circumstantial etc.THE EVIDENCE[15] [2021] FedCFamC1F 295.The father The father gave evidence by affidavit of 7 February 2022. He was cross-examined at length. He generally denied the allegations against him. I saw the father in the witness box as generally unsophisticated but who gave his evidence without reluctance, hesitation, or any sense of deflection. He readily volunteered or confirmed evidence that circumstantially sat with the allegations made by the mother as for instance a propensity to share a bed with one or other of the children and to assist in their bathing or toileting. He was generally not overtly critical of the mother and initially giving evidence consistent with his counsel’s final address that he did not allege any malicious intent on the mother but rather referenced a genuine misunderstanding on her behalf of innocent comments by the children which were capable of equally plausible interpretation. He did, however, and perhaps out of frustration, later suggest that the mother may have fabricated her allegations but was unable to reconcile this assertion with the historical amicable relationship between the parents post separation and the mother’s previous support of his relationship with the children. Whilst being reluctant in court to specifically criticise the mother, in the Magellan Report from October 2020 the father is heard to state that the mother had an unhealthy fear of paedophilia in respect of her daughters due to her own experience of abuse as a child. He alleged then of hearsay disclosures by the mother to his own sister but did not adduce evidence from his sister. The mother denied any sexual abuse on herself. The father did, however, persist with his theme of some obsession in the mother in respect of matters of childhood sexual abuse in stating, for instance, that she would not allow the girls to attend upon a male doctor and accompanying hypervigilance in her. The father had reported his concerns in respect of the mother's history and asserted hypervigilance/obsession to the Court Experts such as Dr H. Noting the orders sought in the final submissions of his counsel, the father was cross-examined as to his amended initiating application filed as recently as 7 February 2022 in which he sought orders that the children live with him and spend time with the mother each second weekend and on school holidays and special days. He was unconvincing in his explanation or apparent understanding of the nature of and ramifications for the children of such a change in their living arrangements.The Mother

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is not a relevant consideration in these proceedings. Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:(i) either of their parents or(ii) any other children, or other person ( including any grandparent or other relative of the children) with whom the children have been living The ramifications of the available findings to this Court are relevant and important. Similarly, all the indications are that the children have enjoyed a close and loving relationship with the paternal grandparents with whom the father has lived and hence the children's time with the father has taken place in the grandparents’ home.Section 60CC(3)(e) the practical difficulty and expense of the children 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; This factor is not a relevant consideration in these proceedings.Section 60CC(3)(f) the capacity of:(i) each of the children’s parents; and(ii) any other person (including grandparent or other relative of the children)to provide for the needs of the children, including emotional and intellectual needs; An issue for the Court here is whether the mother, if accepted as honest in her conclusions as to sexual abuse of her children, will be impacted in her parenting capacity should the Court order time for the children with the father supervised or otherwise. Dr H has commented and made diagnoses in respect of the mother’s emotional health and particularly her anxiety. Secondly, there is an issue as to the protective abilities of the paternal grandparents in respect of the children's safety. There is an issue in respect of their divided loyalties between their son and their grandchildren if protective concern should arise. As indicated above, whereas the evidence of the paternal grandmother indicated some compromised loyalties, the paternal grandfather was most impressive and assertive in his understanding of and commitment to the protection of the children over and above his relationship with his son.Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant; The children's ages and the evidence as to some cognitive delay is relevant here. In all of the circumstances and where the primary issue is one of risk to the children then the Court cannot be satisfied that these children are yet of an age or level of mature cognitive development such that they would be able to self-protect in the event of risk.Section 60CC(3)(h) if the children are Aboriginal children or Torres Strait Islander children:(i) the children’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;