Teel & Brady
[2022] FedCFamC1F 338
•19 May 2022
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Teel & Brady has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATION
These are parenting proceedings in respect of two children namely Y born in 2014 (aged 7 years) and X born in 2016 (aged six years).
The father, Mr Teel, is the applicant. He proposes orders on a graduated basis culminating with the children spending unconditional time with him each second weekend from after school Friday until 5.00pm Sunday and for one half of each school holiday period.
He proposes an order for equal shared parental responsibility in respect of the children.
The mother, Ms Brady, asks for sole parental responsibility for Y and X. The mother asserts that the children have been subjected to sexual abuse by the father and asks the Court to make a positive finding accordingly or, in the alternative, that the father poses an unacceptable risk to the children. The mother argues that there is no benefit to the children in having a relationship with the father and that no order should be made for time between the father and the children.
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”.
On 22 September 2020 the father initiated proceedings in the Federal Circuit Court of Australia seeking to reinstate time.
On 15 October 2020 the mother filed her Response.
On 27 October 2020 the matter was referred to the Magellan List.
On 4 December 2020 interim orders were made for the children to spend supervised time with the father at a Contact Centre and an order was made for Dr C to be appointed as single expert.
On 20 February 2021 the children attended the Contact Centre for orientation.
Dr C's first single expert report was released on 22 March 2021.
On 2 May 2021 the children commenced supervised time with the father at the Contact Centre.
On 4 May 2021 orders were made for psychiatric assessments of both the father and mother by Dr H. Dr H's report was released on 24 August 2021.
Visits between the children and the father proceeded at the Contact Centre in August, September, and October 2021, but the children refused to stay at the Centre or to see the father in a visit on 31 October 2021.
On 6 December 2021 L Services suspended time between the children and the father at the Contact Centre due to the children's refusals.
Dr C undertook further interviews with the children on 2 February 2022 with her supplementary report released 4 February 2022.
The trial in this matter commenced 22 February 2022 and proceeded over six days concluding on 25 March 2022 by way of final submissions.
THE ISSUES
The primary issue is whether the Court should, on the evidence, make findings that the children, Y and X, have been subjected to sexual abuse by the father. If such findings are not available then the mother urges the Court to make a finding that the children are at an unacceptable risk of sexual abuse in the care of the father. These allegations are made within the context of the parties having separated as long ago as August 2016 and, on the evidence, having a relatively amicable and cooperative parenting relationship in respect of the children until the disclosures asserted by the mother.
THE MOTHER’S CASE
The mother asserts that the children's disclosures evidence sexual abuse of them by the father and that the Court should make positive findings accordingly. In the alternative she says that the children are at an unacceptable risk of sexual harm in the care of the father. The mother says that the children's disclosures were unsolicited and made against the background of a cooperative and amicable parenting relationship until that time.
The mother says that the risk to the children’s safety cannot be mitigated by supervision in circumstances where the Contact Centre has suspended time due to the girls' refusals to stay with the father and where the mother says that the paternal grandmother and grandfather do not acknowledge the father's actions or any danger for the children in the care of the father.
It is implicit in the mother's application and from her evidence that she sees no benefit in the children continuing a relationship with the father where he presents as a danger.
THE FATHER’S CASE
The father’s counsel in his final submissions emphasised that the parties had enjoyed a good and beneficial co-parenting relationship until these allegations and despite the mutually critical nature of their affidavits filed in these proceedings.
The father says that the Court should be unable to make positive findings of sexual abuse. He notes the ages of the children together with the complexities of their intellectual cognitive make–ups evidenced by Dr C's reports and the evidence of the mother. Counsel refers to a lack of specificity of dates, times and venues. Properly in my view, counsel for the father says that he cannot deny the statements but urges the Court to look at plausible alternative explanations for the statements made by Y and X and then compromised in their investigation by “leading questions” from the mother such as “has he hurt you?” Counsel refers to the children making various comments, including critical comments, to third parties including Contact Centres about the mother to which the mother asserts that the children were not being truthful and hence throwing doubt on the veracity of the children statements in respect of the father. Generally, counsel argues either misunderstood, misinterpreted or non–existent statements followed by the children naïvely taking on their mother's concerns.
Counsel asks the Court to consider the positive reactions and relationship between the children and the father observed and noted at the Contact Centre.
Counsel for the father urges the Court to make positive findings in respect of what he says is the impressive evidence of both of the paternal grandparents who, if necessary, would be suitable supervisors or a presence in the home which the father shares with his parents and where the children would be expected to spend time with him. The father also offers other tools to give confidence to the mother such as locks on doors and assurance that he would not share a bed with the children or either of them. He is content to accept the recommendations of the ICL for a graduated return of the children to him in order to both comfort the children, but also to give trust and confidence to the mother.
THE RELEVANT LAW
It is a basic tenet of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) at s 60CA that I am to have the children's best interests as my paramount consideration in determining their living and parenting arrangements. Those best interests are determined by referencing and considering the proposals of the parties and the ICL and the probative evidence to the numerous mandatory factors set out at s 60CC(2) and (3) of the Act against a background of the Objects and Principles of the legislation set out in s 60B which provides the fundamental philosophy of the legislation thus:
60B Objects of Part and principles underlying it
(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).
…
There is a dispute between the parents in respect of “parental responsibility” which is defined at s 61B of the Act as the “duties, powers, responsibilities, and authority which, by law, parents have in relation to children”. Practically, this refers to the decision-making role of parents for long–term and important decisions for their children as opposed to the mundane day–to–day decisions which parents habitually make for children. Issues such as education, religious affiliation, and medical interventions are often given as examples of the obligations of “parental responsibility”.
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children. In the matter now before me, the father and the ICL urge such an order, but where the mother asks for an order for sole parental responsibility in her. The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions of those terms in the Act. Obviously, the case argued by the mother here is one which, if such findings were made, would render the presumption not applicable. Alternatively, the presumption is rebuttable by evidence satisfying the Court that it would not be in the children's best interests for their parents to exercise equal shared parental responsibility.
Significantly, if the presumption does apply and is not rebutted or if the Court is inclined to make an order, in any event, for equal shared parental responsibility then the Court is mandated to follow a pathway of statutory and intellectual consideration in respect of the children's best interests and their living and parenting arrangements. Firstly, the Court must consider whether it is both in the children's best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. In the matter now before me, neither the parents nor the ICL urges such orders. Nevertheless, if the answer to either of the questions is in the negative then the Court must turn to consider whether it is both in the children's best interests and reasonably practicable for the children to live in an arrangement of “substantial and significant time” between the parents. The notion of “substantial and significant time” is defined in the Act at s 65DAA(3) as follows:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The orders sought by the father and the ICL are more limited in that they seeks only traditional forms of contact being each second weekend and half the school holidays together with time on special days.
Importantly, the task for the Court is not simply to make orders by reason of a choice between the options presented by each of the parties. Rather, the brief for the Court is to make orders which attend the children's best interests. As the High Court observed in CJV & VAJ:[1]
[152]The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G,[2] Lord Fraser of Tullybelton pointed out:
"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
[1] (1998) FLC 92-828.
[2] Footnote omitted.
As mentioned above, the Court is guided by the mandatory considerations set out in s 60CC(2) and (3) of the Act. Those considerations, without hierarchical importance, are divided into “primary” or “additional” factors. The two factors at s 60CC(2) are pivotal in the weighing and balancing process towards the children's best interests in this case and they are as follows:
(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.
The father argues that orders in the terms of the mother’s application would deny the children a meaningful relationship with him or effectively any relationship at all. This is not, however, a determinative consideration but simply one to be weighed and balanced as against the plethora of other considerations not least being that at 60CC(2)(b)[3] but where Parliament has legislated at subsection (2A):
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
[3] Champness & Hanson [2009] FamCA 96.
PRINCIPLES – CHILD ABUSE AND UNACCEPTABLE RISK
The mother here alleges that the children have been subjected to sexual abuse by the father. The mother therefore carries an onus to prove the assertion of fact pursuant to the requisite standard of proof. That is, it is not for the mother to simply make the allegations and stand back placing an onus on the father to prove his “innocence”. Nevertheless and importantly, however, the enquiry is always based within the broader considerations of the children's best interests.
The standard of proof required is that at s 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act') as follows:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The common law forerunner to s 140 of the Evidence Act was provided by the High Court in the oft cited decision in Briginshaw v Briginshaw[4] where Dixon J stated at [361-362]:
… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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.
[4] [1938] HCA 34.
In the matter now before me it is trite to observe that the allegations made by the mother are of the highest gravity as are the consequences which would result in no, or an extremely limited, relationship between children and a parent.
The mother's primary position is that the Court should make an assertive and positive finding that the children have been sexually abused by the father. This is an exercise in fact-finding on the balance of probabilities after weighing and balancing the empirical evidence as indeed would be the Court's consideration in respect of the father's position that any statements made by the children are misunderstood, misinterpreted, or simply untrue based on the assimilation of the mother’s own fears. Significantly, the father here does not assert that the mother has maliciously or opportunistically fabricated or manipulated the children statements.
If the Court cannot, however, make findings of fact on the balance of probabilities pursuant to s 140 of the Evidence Act then the mother argues that the Court should find that the children are at “an unacceptable risk” in the care of the father. By its very nature this is a predictive or prospective exercise for the Court and where “risk” must be seen as by its very definition as being into the future. Further, the Court is to consider any mitigation of such a risk by tools available to it such as supervision.
The High Court in M v M[5] acknowledges the broad perspective for the Courts consideration thus:
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 … 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. …
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. …
… 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.
[5] (1988) FLC 91-979 at 77,080 and 77,081.
It follows, therefore, that the process for the Court is much more than simply a finding of fact as in “guilty” or “not guilty” where the consideration here is an overall one as to the best interests of the children where that consideration pursuant to s 60CC(2)(b) is of “risk that be unacceptable”. Importantly, the process of consideration of “unacceptable risk” is not to be conducted on a “default finding” basis but must be an independent consideration based on a weighing and balancing of evidence. As Fogarty J noted in a dissenting judgement in N & S and the Separate Representative:[6]
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content of the notion of “unacceptable risk”. Though the purpose behind the notion is to assist the Court in determining what is in the child's best interests, the importance of asking the question separately lies in the specific guidance to the Court faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just and as an expression which must be ritually used in judgements which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts have to make some effort to quantify the relevant risk. In S and S, supra, Thomas J addressed the difficulty involved here. At 670 his Honour said:
qualifying words such as “acceptable”, “real”, “serious” or “appreciable” are merely methods of expressing the fact that the risk is a foundation in the evidence which is incompatible with the welfare of the child.
[6] (1996) FLC 92-655 at 82,713.
Consequently, the consideration of unacceptable risk remains an evidence–based one but one that is prospective as opposed to the process of findings of past fact as for example is urged upon me by the mother in this case. Importantly, this is not a two–step or default approach but one requiring separate and independent consideration. In Napier v Hepburn[7] at [84] the Full Court noted:
[84]There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[7] (2006) FLC 93-303.
In summary, therefore, the consideration of “unacceptable risk” is not fact based but where previous facts can be taken into account. Rather, it is an evidence–based predictive and prospective exercise within the wider issue of the child's best interests where the Court must also consider the evidence that might tend towards mitigation of the risk and perhaps asking itself the question “what turns an unacceptable risk into an acceptable risk?”[8]
[8] PST & CPR [2006] FMCAfam 36, at [71].
There has been recent judicial debate in respect of the evidentiary requirements of a finding of “unacceptable risk” where the process is prospective and arguably looks to “possibilities” rather than a balance of probabilities on the basis of past fact. Notably divergent superior court viewpoints were exposed by their Honours in Fitzwater & Fitzwater[9] and then intrusively considered by McEvoy J in Keane & Keane[10] where his Honour noted:
[9] [2019] FamCAFC 251.
[10] [2020] FamCA 99.
[70]As Austin J observed in Fitzwater & Fitzwater, the conclusion reached by the Court in proceedings under Part VII of the Act, as reflected in whatever decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence.[11] Critically, however, and as his Honour noted, the law draws a distinction between proof of historical facts and the prediction of future possibilities. Drawing on what the High Court said in Malec v J.C. Hutton (1990) 169 CLR 638 at 639 – 640 and at 643 (“Malec”), Austin J noted that in determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.[12]
…
[73]Austin J’s analysis of the nature of the task confronting a trial judge of this Court when considering whether to make a parenting order in favour of a parent who is alleged to represent an unacceptable risk is, with respect, compelling and of considerable practical assistance. His Honour observed:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities. (Emphasis added)
[74]Although in Fitzwater & Fitzwater the majority expresses disagreement with Austin J on the proposition that s 140 of the Evidence Act has no role to play in a case where unacceptable risk of harm is alleged,[13] their difference with his Honour on this point may be more imagined than real. Austin J does not contend that s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged. His Honour’s point, consistently with M v M and Malec, is rather that the assessment of risk is predictive. While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, consistently with settled principle, have been the subject of findings on the basis of s 140 of the Evidence Act.[14]
[11] Footnote omitted
[12] Footnote omitted.
[13] Footnote omitted.
[14] Footnote omitted.
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
The mother also relied on affidavits and was cross-examined extensively. She too presented as unsophisticated but was direct and assertive in her responses. She was unrelenting in her view as to her children being sexually abused and would not contemplate any tools or conditions sufficing to mitigate the risk to her children. She at times exposed a high level of religiosity without professing any form of traditional religious practice. There was at times an element of almost melodramatic affectation to her evidence.
The mother was equally firm in her statements and conviction that she will follow any court orders, even those that do not in her view protect her children, but that she felt unable to voluntarily positively foster any direct time for the children with their father due to her strident beliefs that her children have been sexually abused.
The mother presented in her evidence as suspicious, not only of the father's actions, but also of his family members and particularly the paternal grandparents, who she says refused to acknowledge the father's sexual abuse of her children in their home. She will not accept either of the paternal grandparent as supervisors and hence mitigating any risk to the children.
The mother denied any paranoia, hypervigilance, or being the victim herself of sexual abuse in her childhood.
The paternal grandparents
The paternal grandparents, Mr J and Ms K, both provided affidavits and were cross-examined. The paternal grandfather was objective and assertive in his evidence. He was a most impressive witness. He might be described as “salt of the earth”. He had an understanding of the potential role of supervisor. He understood the priority being to protect the children and was clear and unambiguous that he would not prioritise his relationship with his son over the protection of children. Indeed, he went so far as to acknowledge the past allegations against his son and said that any further allegations by either the children or the mother would result in him “acting first and talking later” meaning to protect the children.
The paternal grandmother was, perhaps understandably, more partisan towards her son than was the paternal grandfather. She agreed that she thought the allegations against her son to be “lies” and was able to rationale this conclusion by jealousy in the mother of the father's good relationship with the children. The grandmother categorically denied either the fact or opportunity for any abuse of the children in her household in circumstances where the father had been living in his parents’ home at the times of the most recent allegations. The grandmother was able to say that she would communicate with the mother if any further issues arose and that she would treat the mother with “respect” although the clear indication of her evidence is that she considered the mother to have fabricated false allegations against her son.
Dr H
Dr H provided a report of 12 July 2021 being a psychiatric assessment of each of the parents.
Dr H noted the most recent allegations of the children via the mother from July 2020 and summarised as:
•The father had inserted his finger and other objects into their ‘bums’, the Mother noting that the children use the word ‘bum’ interchangeably for bottom and vagina;
•The Father had played ‘doctor’ with the children, inserting things in their ‘bum’ and mouth;
•The Father rubbed the children’s genitals and tells them ‘it's a game’;
•The Father exposed his penis and shook it in front of the children.[16]
[16] At page 2 of Dr H’s report dated 12 July 2021.
On pages 3 and 4 of his report and his unchallenged history taken from the father appears the following conveyed by the father:
[The father] confirmed the allegations made in April 2018 in which [the mother] accused him of waving his penis around in the presence of [Y]. He indicated that such an allegation was false and immediately sought contact with a Lawyer. It was his account that contact was ceased at that time and he did not see the children for three months. Mediation then occurred and contact resumed.
Subsequently whilst sitting in a car with [the mother] prior to attending an appointment for one of the girls, she, commented that he had been a good father, apologised for ‘putting you through this’, told him that she'd told lies in the process because she wanted to hurt him. (Emphasis added).
In response he did not ask questions as the focus by that time was maintaining contact with the children which had just resumed. As such contact continued every weekend. There were no problems. …
The father's counsel chose not to cross-examine Dr H. Surprisingly, the reported revelation that the mother had lied about the matters from April 2018 does not appear in the father's trial affidavit. Rather, at [25] of his trial affidavit sworn 7 February 2022 appears the following:
On or about 20 April 2018 [the mother] then stated to me that she had overreacted and my time with the children recommenced.
The father confirmed that he lives with his parents. He denied any personal or family history of psychiatric illness. At pages 6 and 7 Dr H’s assessment of the father is reported as follows:
… As noted he denies her allegations and the children's alleged disclosures. [The father] considered she had sensitivity around issues of abuse and paedophilia, noting that she was inclined to be over-reactive and overprotective of the children. She told his sister that she'd had some form of abuse by her father and left home at 13. He understands that [the mother’s] father was convicted of indecent exposure in 1968. [The father] denies that his mother would not act protectively. He indicated that his mother regularly cared for them and saw to their development and wellbeing. He denies he has ever bathed with the children, adding that he would not fit in the bath with them as he is 6'1" tall. [The father] agreed that the children sleep in his bed one night of the three nights they stay and at other times they sleep in the middle bedroom at his parents’ house.
Dr H concluded of the father that his memory and concentration were intact with present insight and was not presenting with symptoms of a psychiatric condition.
In her assessment with Dr H, the mother denied being sexually abused as a child claiming this was something “made up” by the father's sister and described as untruthful rumours. She denied any knowledge of her father being a paedophile.
The mother was critical in respect of the father's character referencing him as a “sociopath, a monster… Selfish and destructive”.
The mother reported from August 2017 noting that Y was “often masturbating” and repeating Y's alleged revelation from April 2018 that “Daddy has a penis and does this” (making a shaking motion) adding that “it smells nice”. She concedes subsequently accepting the father’s assurance that nothing had occurred and that contact resumed and that “she apologised”. She reported a subsequent amicable and cooperative parenting relationship.
The mother reported to Dr H that she had become aware of the children sleeping with the father at his parents’ home despite the paternal grandmother’s previous indication that the children had their own separate room.
The mother repeated the particulars of the children’s revelations from July 2020 and reports her own preoccupation as:[17]
She was worried and these things filled her head. She thought about it all day and that evening, spoke to her mother who sympathised. As such she decided to talk to [the father]. She wanted to say “please be modest, dress the girls properly, make sure they attend the toilet on their own”, but when the day came up, she couldn't do it, and in the end she backed down. Those thoughts festered all weekend. The girls share a bedroom.
She was in the process of charging [X's] nappy. [Y] was in the room with them. “I said to [X] did you feel safe at Daddy's, are you okay?” It was in that context that [X] told her in her own words the things that her father had been doing. “It was horrific”. At this point [X] opened her legs in a diamond shape, picked up a plastic toy was making shaking motion pointing to her groin, picked up a piece of paper, screwed it up in a cone shape and put it (sic) [the mother’s] mouth saying she was “playing [X's] game”.
…
She spoke to Child Protection who said that as she was looking after them, they were safe. [Y] was interviewed by the Police but made no disclosures. After that the children slept in her bed and [Y] started to make disclosures, “she'd give me little snippets”, “Daddy put his tongue down there”, “Daddy touched me and told me how to do it”. [Y] said “but Dad told us to”, “we watch movies together with Dad”. When asked what they were watching, [Y] said “the movie show us how to do it'. Those conversations occurred over a five week period.
[17] At pages 11, 12 and 13 of Dr H’s report dated 12 July 2021.
Dr H observed the mother as follows:[18]
Her mood varied across the interview. [The mother] began in a bright smiling manner but over time was noted to become heightened and agitated. Her affect was preoccupied and restricted, her account was accompanied by tearfulness when describing the abuse of the children. Rapport and eye contact were maintained throughout.
[18] Ibid at page 14.
Dr H concludes in his summary in respect of the mother thus:[19]
Throughout her account there are indications that [the mother] is a woman of considerable insecurity and at interview, impressed as somewhat childlike and unsophisticated in manner. In the context of what appears to be an innocent comment from [Y] (being ‘tickled’) and reference to her father's penis, [the mother] broke off his contact with the girls, later apologised and following further comments from [X] as described in 2020, her unabiding suspicions regarding [the father] were confirmed. She took the children to hospital. When interviewed by the Police, no substantiation occurred. She continues to remain convinced that [the father] is a child abuser and is seeking sole custody of [Y] and [X] and cannot foresee any further contact of an unsupervised nature until they are in their teens, seeing herself as the protector with indications of an enmeshed relationship with them.
[19] Ibid.
Dr H was apprised of the Reasons for Judgment from an interim hearing by my colleague Bennett J and also of the first expert report of Dr C noting:[20]
…On reading that report there are indications that [the mother] appears to have engaged in leading questions of the children as noted on page Page 3, after the children indicated they did not want to go to see their father, noting that when they had been returned to her care following comments made at the family shack by [X] which indicated that “Daddy sticks his finger in my bottom”. There were further questions asked of the children to the effect “were you uncomfortable with anything on the weekend, did Daddy do anything to hurt you or make you uncomfortable”.
[20] Ibid at page 15.
Dr H noted that Dr C did not entertain any “other working hypotheses” suggested in the judgement of Bennett J.
Dr H provides a diagnosis in respect of the mother having the following:[21]
•Cluster B Personality Features
•Adjustment disorder with Anxious Features
•Postnatal Depression (in remission)
[21] Ibid.
In providing his “opinion” at page 16 of his report Dr H says in respect of the father:
[2]Having assessed [the father], I found him to be straightforward in his account. He spoke lovingly of the children and appeared devoted to them. This was not contested by [the mother] in her account. [The father] described a stable loving childhood and upbringing. Throughout he noted [the mother] to be unstable, often angry, struggling to cope with the children, and was depressed.
…
[6]Having assessed [the father], there are no indications of disordered personality functioning. There was no history of trauma or abuse, nor history of personal or family psychiatric illness. It was his further account that contact had gone well with the children in supervised circumstances and his wish was to have further contact with them in keeping with the previous co-parenting arrangements which had reached a status quo over a two year period.
In respect of the mother and at [7] and following Dr H concludes thus:
[7][The mother’s] presentation was concerning. She impressed as at times emotionally distressed and fragile. There were indications of considerable insecurity and dependency in regard to her psychological functioning. Her initial account of [the father] was that he had a loving nature. Following [Y's] birth and in the context of the pregnancy with [X], she was diagnosed with depression for which she require treatment for six months.
[8]According to [the father], [the mother] struggled in the role as mother and whilst it was her account that she was the primary carer of the children, this appears to have been accompanied by various forms of support from family members including both sets of grandparents. At interview [the mother] gave some indications that this was so, acknowledging that the arguments which ensued between the parents largely occurred in circumstances in which she perceived [the father] as not providing help, at one point according to [the father], insisted that he give up his job in order to provide her with further assistance to that effect.
[9]Whilst the Family Court Report raises serious concerns as to the possibility of sexual abuse given the children's presentation and symptoms, this can also be explained as occurring in the context of [the mother’s] enmeshed relationship with them and high index of suspicion in the context of unresolved hurt and anger with [the father] who she described in particularly negative terms as being a sociopath and a monster. My assessment of [the father] is that he is neither a sociopath nor a monster. To the contrary, he appears to have subjugated himself to [the mother’s] whims and needs both throughout the relationship and post separation period.
[10] … I have significant reservation as to [the mother’s] account and her perception of [the father]. I consider that the allegations occur in fertile circumstances in relation to her disordered thinking and perception of him as an abuser. …
Dr H did not interview the children.
Dr C
Dr C is a clinical psychologist and provided an expert report for the Court. She conducted interviews with the parties and the children in February 2021 and again with the mother and the children in February 2022. Dr C gave evidence and was cross-examined.
Dr C's first report has the mother repeating the allegations particularised in her evidence. Similarly and when interviewed sympathetically Y reports the father as “angry” and later reporting that her father “saw and touched my bottom''. Relevantly Dr C's report indicates involvement by the mother with Y making statements such as “Mum said I didn't have to go …”; “He plays not nice games and he doesn't share so Mum says don't go there”.
X is reported as saying she no longer spends time with her father because “I don't like” but being unable to explain and saying “I don't know”.
The father was interviewed. He denied the allegations. He explained the children’s circumstances in his parents’ house consistent with his affidavit. He again explained that the mother exhibited a paranoia in respect of sexual abuse and cited her own childhood experiences. The father emphasised that it was his mother's job to bathe the children, although he would often be in the bathroom whilst the children were having their bath.
In a telephone call to the mother subsequent to the interviews, Dr C reports the mother having said to Y “I'm so proud of you for being brave enough to go and talk to [Dr C] on your own”.
In her conclusions and recommendations in her first report Dr C identifies the primary issue of concern being exposure of the children to sexual abuse whilst in the care of the father. She noted Y, to a lesser extent than X, as being introverted and exhibiting signs of separation anxiety. Y's disclosures are noted as “appeared to be authentic and believable and was characterised by age-appropriate language and a degree of spontaneity”. Dr C does not identify Y as being coached or manipulated in her disclosures. She notes multiple disclosures by the children together with displays of sexualised behaviour and other behavioural or physical indicators of abuse.
Dr C’s first report identifies a number of indicators of abuse including:[22]
[22] At Page 21.
•The children have made disclosures of sexual abuse to multiple sources (e.g. the writer, police, [the mother], CCS worker).
•Clinging and anxious behaviour.
•A fear of specific places (e.g. [the mother] reported that [Y] displayed a fear of going to the toilet while at school).
•Sudden interest in genitals and sexual acts (e.g. it was reported that [Y] began to show an increased interest and preoccupation with masturbation around the time of the disclosures).
•Acting out sexual or abusive behaviour with toys or people (e.g. reports that [X] was attempting to insert toys into her vagina and attempting to engage [the mother] in “[X] and Daddy games”).
•An increase in nightmares, a fear of the dark and difficulty falling asleep.
•An increase in bed – wedding.
•Hypervigilance and an exaggerated startled response (as observed by [F Services] counsellor).
Dr C also identifies a number of behavioural indicators of possible sexual abuse such as X complaining of a stomach ache and a “sore bottom”.
Dr C concludes that the behavioural and physical indicators show a risk of sexual abuse in the event that unsupervised contact between the children and the father is recommenced.
Dr C recommends that the children re–engage with F Services for ongoing counselling and particularly in the event that contact between children and the father recommences.
Dr C opines at page 22:
If sexual abuse has occurred, the children are at risk of re–experiencing the trauma and subsequent trauma symptoms in the event that they have future contact with [the father]. The effect of a child being in contact with a person who sexually abused them can result in the child experiencing a range of negative psychological and behavioural outcomes including; fear, anxiety, social withdrawal, nightmares, regression in development, oppositional and defiant behaviour, deterioration of academic performance.
Dr C’s second report appears a year later. The father was not again interviewed. Dr C had the advantage of the Contact Centre records until December 2021 including file notes. The mother indicated that the children consistently attended the Contact Centre from June – November 2021 except for a couple of missed occasions due to illness. She reported “a few behavioural issues after Contact Centre visits and increased separation anxiety. The mother alleges that after the contact visit on 31 October 2021 [Y] disclosed to her that Dad leaned over and whispered to her, 'I’m going to take you and put you in the car and there's nothing your mother can do about it” at a time when the supervisor was distracted. The father denies this allegation in his evidence in court. The mother says that the children thereafter refused to stay for visits with the father and such visits eventually ceased.
Y was again interviewed. She was asked how she felt about seeing her father and responded “he does this mean thing to me” but said it happened “a long time ago” and was not sure whether she could remember it happening.
Y described the Contact Centre visits as “fun” and asked what it was like seeing her father at the Contact Centre she responded “I'm not sure" and “I feel a bit scared about seeing dad because he might do that thing I said. Even though there are people watching”. Y understood that the contact visits have stopped because “we are on holidays”.
When asked with whether she might see her father again she responded “I think so”.
At page 5 of the second report Dr C observes:
I asked [Y] what her Mum says to her about contact visits with her Dad and she said, “I'm not sure”. I asked [Y] whether her Mum thought she should spend time with Dad and she said, “she says no and that she keeps me safe and away from Dad”. I asked [Y] whether her Mum thought her Dad was not safe and she said, “Yes so I don't go to Dad's house anymore”. I asked [Y] whether her mum talks to her about the contact visits when they are in the car on the way to the Contact Centre and she said, “She says to ring me if anything happens. I can get people to ring her”. She also said that her Mum had said, “Be careful he doesn't do that thing to you”. I asked [Y] to point to the emotion that her Mum is feeling when they are on the way to the Contact Centre and she pointed to happy. [Y] also pointed to happy for the emotion that she, herself, feels before and after a contacts visit.
X was interviewed again. Like Y, she also denied the existence of her father in her family. X was asked whether she sees her father at the Contact Centre and answered in the affirmative. When asked whether she likes spending time with her father she responded “Good”. She pointed to the happy emotion when describing how she felt about spending time with her father at the Contact Centre.
Like Y, X understood that she was no longer attending the Contact Centre because she is “having holidays off school”. When asked whether she would like to go back to the Contact Centre to see her father she responded “Yes”. “[Y] wants to (sic) too so I am. Mum leaves us there and then comes back”. X is reported as understanding that her mother wants her to go back to the Contact Centre.
In her conclusions, Dr C notes a “marked difference” in the children's presentation from the initial interviews in February 2021. The children are seen as being happy and confident. There was no evidence of heightened anxiety with minimal anxiety/distress observed in each child when discussing issues relating to contact with the father.
At page 7 Dr C reports:
I have been informed by [the mother] that both children have refused to participate in any further schedule visits with [the father] and this is confirmed in correspondence from [L Services] (dated 6th December, 2021). [The mother] reports that the children's refusal was precipitated by comments allegedly made to [Y] by [the father]. However, during the interview process, both children expressed that the reason they were no longer attending the Contact Centre was because they were on school holidays, with neither child expressing that a specific issue or incident had resulted in the sudden refusal. Given the limited information available, it is difficult to determine what is likely to have contributed to the children's refusal to participate in ongoing contact.
There was some information provided by [Y] that suggests that [the mother’s] anxiety around contact visits may be influencing [Y's] resistance to attend. [Y] has clearly developed an awareness that [the mother] is concerned for [Y’s] safety when she is with [the father]. Given the close bond the children share with their mother, any concerns/negative views [the mother] may express, inadvertently or otherwise, are likely to be adopted and modelled by the children. While the children sense that their mother views contact as something that is potentially dangerous, they too are likely to perceive risk and subsequently engage in avoidant behaviours. To limit the children's anxiety around contact, it is essential that [the mother] refrains from expressing her own anxieties and actively supports and encourages contact. It is understandable that this may be challenging for [the mother] given her firm belief that the children have been sexually abused by [the father]. It may be helpful for [the mother] to access further information about the safeguards and processes involved in supervised contact as this may assist in alleviating the anxiety she experiences in relation to the possibility of harm.
In her evidence in court, Dr C agreed that it was not possible to make a definitive positive finding that sexual abuse had occurred. She agreed that there is some optimism for re-establishing a relationship for the children with their father based on the Contact Centre’s observations and notes, but emphasised that the children must feel comfortable and safe.
Dr C repeated her disagreement with the diagnoses of Dr H and reiterated that she did not get any sense of the mother being insecure but saw her as intelligent and comfortable.
Dr C repeated that her overwhelming view was that Y was being spontaneous and truthful in her disclosures in the first interview even though some considerable time had lapsed between the alleged events and those interviews.
My impression of Dr C's evidence is that her emphasis moved between the two reports with focus in the first report on the veracity of the statements of the children with Dr C seeing them as honest and unsolicited. However, by the second report there is some consideration and emphasis on the mother’s own entrenched views that her children had been sexually abused and possible influence, whether direct or indirect, on these children who are vulnerable by both age and cognitive development.
MAGELLAN REPORT
The Court has the benefit of a report provided in September 2020 by Child Safety Services. That Report notes the notification from 16 April 2018 from Y to the mother being “my Daddy has a willy… it's funny when it just falls out… it smells nice”.
The Report notes the notification of 20 July 2020 from a mandatory reporter noting X's disclosure that the father “rubbed her bottom up and down after putting cream on her while on her hands and knees” and subsequent reports attributed to X as set out in the mother's affidavit but highly particularised by X.
The Report concludes that Tasmania Police and Child Safety were unable to substantiate harm caused by sexual abuse due to “insufficient evidence”. The Report notes both X and Y as particularly vulnerable due to their age and developmental delay with risk factors present but managed by the mother and other services.
The Report recommends that should contact to be ordered by the Court then the transition be gradual and planned in close consultation with therapists.
THE SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit of the children of having a meaningful relationship with both of the children's parents;
There are many indicators historically of a close, loving, and beneficial relationship for Y and X with the father. This relationship has been disturbed by the current allegations. The children's ages and levels of cognitive delay would suggest some negative impact on these relationships where the adjective “meaningful'' and the term “benefit” each reference the quality of relationships with children with their parents. Nevertheless, the information from the Contact Centre suggests both the maintenance of the recognition in the children of the relationship with their father and a degree of comfort with him.
As suggested above, where the Courts have concerns towards risk for children in relationships with parents then consideration is to be given to various tools which serve to both mitigate such risks and to assist in maintaining relationships with children and their parents. That is, the consideration here is a prospective or predictive one in the sense of benefit to the children but one obviously based on the prior findings of fact.[23]
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
[23] McCall & Clark [2009] FamCAFC92.
It is trite to observe that Parliament has mandated that the protective considerations here are to be given greater weight than those considerations in subsection (1).
The mother argues simply that the children have made statements, consistently and highly particularised, that convince her that they have been subjected to sexual abuse by the father. Accepting the honesty of her claims (as does the father) then the mother says that she can see no options for a continuing relationship between the children and their father such that would afford them appropriate protection.
The father through his counsel (but perhaps not so consistently in his own evidence in cross-examination) does not allege vindictive or malicious fabrication by the mother of these allegations which, if so, would in themselves constitute a serious emotional abuse of the children. Rather, he asserts innocent misinterpretation or misunderstanding on the part of the mother.
The mother asks the Court to make positive findings on the evidence that the children have been sexually abused as particularised in her affidavit. The standard of proof here is a relatively high one and the Court, like the Police and Child Safety, is confronted with children of a young age and with cognitive delays. Nevertheless, the overall consideration here is as to the best interests of the children with emphasis on their safety and hence the notion of “unacceptable risk” assumes some critical importance and the inability in the Court to make a positive finding of fact does not impede a determination of “unacceptable risk”. A conclusion of unacceptable risk may be made from the cumulative consideration of factors where each individually might not be proven to the requisite standard required for a positive finding. Nevertheless, it is also important to emphasise that the consideration of unacceptable risk is not to be undertaken as a “default position” by the Court if unable to make a positive finding of fact but rather is one requiring active and discrete consideration.
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks relevant to the weight it should give to the children's views;
The children in this matter are still very young and their views and preferences could not be expected to be made in any rational or informed way. Y, in particular, has been reported as reluctant to re-engage with her father but in circumstances where the Court has material suggestive of some influence on the child by the mother, albeit not necessarily direct or intentional.
Section 60CC(3)(b) the nature of the relationship of the children with:
(i) each of the children's parents; and
(ii) other persons (including any grandparent or other relative of the children)
Prima facie the children's relationships with each of their parents have been close, loving and beneficial. The relationship with the father has been interrupted by the allegations of sexual abuse reported by the children to the mother. Any positive findings of abuse or unacceptable risk will inevitably result in constraints being placed on the relationship between the children and their father, albeit necessary to protect them. The indications from the Contact Centre appear to be that the children have maintained a comfortable relationship with their father perhaps to a degree not indicated in some of the statements made by Y to Dr C.
Section 60CC(3)(c) the extent to which each of the children's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about long – term issues in relation to the children; and
(ii) to spend time with the children; and
(iii) to communicate with the children;
Until the recent events, each of the parents was unimpeachable in relation to this issue. Notably, the father moved into the mother's home for a period of some months to assist with the care of the children when the mother had suffered a physical injury.
Section 60CC(3)(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
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;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;
The circumstances here are different than most matters of alleged child sexual abuse coming before these Courts. The father is the alleged perpetrator. His counsel, however, does not assert malicious fabrication of these allegations by the mother. Rather, he argues that the mother’s anxious personality, hypervigilance, with a focus on child abuse perhaps stemming from some incidents in her childhood, have caused her to misinterpret or misunderstand otherwise innocent statements with plausible explanations such as general assisting of the children in toileting, bathing, play, or the administering of medications. (Nevertheless, in his evidence in cross-examination the father did himself give some indication of an agenda in the mother to make false allegations against him).
Section 60CC(3)(J) and (k) – any family violence involving the children or a member of the children's family, and whether any family violence order applies;
The issue of family violence in this matter is focused on the mother's allegations that the children have been sexually abused. The mother in her material does make reference to some historical issues of family violence but which have not been the motivation for these proceedings.
Section 60CC(3)(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 children;
Parenting orders can only be final in the sense that any material change in the circumstances of either the parents or the children can ignite further litigation. To her credit, the mother stated categorically to the Court that she would adhere to any orders.
CONSIDERATION AND FINDINGS
On the evidence, I am able to find that until the alleged revelations of these children in July 2020, these parents had a successful and relatively amicable co-parenting relationship and despite an earlier statement from 2018 made by one of the children which could have been interpreted as an instance of sexually inappropriate behaviour.
The children’s relationship with their mother is quite obviously their primary one. Their attachment and sense of support is with her. There are some indications, most prominently evident in Dr C's second report, of the children being imbued to a degree with their mother’s convictions that they have been the abused by the father. Any stated views or preferences of the children must be seen within this context accordingly.
The children are both young, vulnerable and there are indicators of cognitive delay with particular reference to Y.
I find the mother to be forthright and assertive in her conclusions that her children have been sexually abused. She does not appear willing to consider that she has misinterpreted, misunderstood, or failed to consider plausible explanations for the children’s statements. She impresses as committed to the children's safety as a priority but with some credence, therefore, to the position of the father and supported by Dr H of forms of hypervigilance compounded by her anxiety and considerable insecurity and dependency.
The children’s statements made firstly to the mother and later repeated, including to Dr C, are highly particularised as noted in the Magellan Report and relatively consistent. Similarly, the father's own evidence as to the sleeping arrangements for the children, including the sharing of beds, is consistent with opportunity towards the allegations made by the children.
The context and historical circumstances of the relationship between the parents themselves makes it unlikely, and gives no motive, for the mother to have fabricated false allegations. This was previously a cooperative relationship. The mother had effectively disregarded a previous statement made by one of the children. She had enlisted the assistance of the father to live in her house for a number of months to assist with the children including the sharing of bedrooms with all the indications being that the mother had previously displayed a high level of trust with no real suspicions towards the father's behaviour.
There is little or no corroborative forensic evidence in respect of the children's allegations from either Tasmanian Police or Child Safety but which is not unexpected given the children's ages and levels of cognitive development. The positive relationship between children and father observed at the Contact Centre relevant to the statements made by the children in each of the interviews with Dr C suggests that the children have become enmeshed to a degree in their mother’s firm convictions that they are at risk in their father's care.
Given the requisite standard of proof, I am unable to make a positive finding that these children have been sexually abused as alleged by the mother. Again, I note the children's ages and cognitive delays. I take into account my findings in respect of the mother’s firm convictions and consequent enmeshment of the children in her firm views with the possibility of further contamination by her of otherwise plausibly innocent or ambiguous statements made by the children. I take into account that there was no forensic or corroborative evidence. In all the circumstances I also take into account the diagnoses and observations of Dr H as to the mother’s anxious and perhaps vigilant personality with cluster B personality features including insecurity, anxiety, and dependency.
I generally accept the submissions of counsel for the father that the mother has not falsely and maliciously concocted these allegations and is not, therefore, herself culpable of emotional abuse of the children.
Nevertheless, on consideration of the evidence as a whole, I am satisfied that there remains an unacceptable risk for these children of sexual abuse in the unsupervised care of the father. Again, I note the “test” not being one on “the balance of probabilities” but with a prospective consideration of “possibility”. I accept the submission of the father's counsel generally that the children have made the statements attributed to them and that the mother has not fabricated those statements. In my view, the revelations of these children are relatively highly particularised as prominently set out in the Magellan Report and also in the mother’s own affidavit evidence. Further, the children statements are accompanied by the impact of the alleged behaviour such as “it hurting”. The children’s revelations are relatively consistent made to a number of people or authorities over a period of time which, in my view, gives some veracity despite my findings as to the mother's likely influence. Further, there is contextual opportunity in respect of the sleeping arrangements conceded by the father. I also take into account that the allegations are made by each child apparently separately in time and context. Still further, there is collateral evidence of behavioural difficulties for the children and overt sexual behaviour being exhibited all of which was not, and could not be, challenged by the father's counsel given the position taken by the father as to the misinterpretation or hypervigilance on the part of the mother. I am satisfied, therefore, taking all of these matters into account in attributing appropriate weight, that there remains a possibility of these children being at the risk of sexual inappropriate behaviour by the father.
It remains, therefore, for me to determine what, if any, tools and/or constraints can or should be imposed so as to maintain a relationship for the children with their father whilst attending to these protective concerns. Firstly, it is proper for me to note and find that there is a benefit prima facie in the children having a relationship with their father in circumstances where there has until relatively recently been a close, loving and successful relationship which remains in its fundamentals on the observations of the Contact Centre.
The children are still of an age where they cannot realistically be expected to self-protect given that they would not understand the dangers of any overt behaviour or the ramifications for them of such improper behaviour. Supervision is therefore an obvious protective tool open to the Court but in circumstances here where the B Contact Centre has previously been utilised and is not, in any event, offered as any long-term available assistance. The mother herself was unable to offer any alternative private supervisors and understandably so where her primary position is that the children should have no ongoing relationship with their father. The father offers his own parents as supervisors and says candidly that he would accept supervision of his time with the children if the Court was to find it appropriate. The Court had the benefit of both paternal grandparents giving evidence and being cross-examined including as to their views as to the need for supervision. In this exercise the paternal grandfather was quite clearly more objective and impressive than was the grandmother who, not unexpectedly, showed some partisan support for her son in not acknowledging the possibility of any veracity in the children's allegations and placing blame on the mother and seemingly not acknowledging the contextual opportunities previously available to the father as I have found above. The grandfather, however, was objective and assertive in his commitment to be protective of his two grandchildren. He stated with conviction that he would not be compromised in any loyalties to his son. I have no hesitation in accepting his evidence.
The father says that he will continue to live at his parents’ home and, at the very least, the indications are that his time with the children could be spent at his parents residence. I am entirely satisfied as to the protective abilities and inclinations of the paternal grandfather and his likely influence on the paternal grandmother accordingly. The father himself offers a number of protective tools such as a commitment in not sharing a bedroom with the children, not attending to their toileting or baths, and placing an internal lock on his bedroom door. I am satisfied that these would be physical tools to satisfactorily mitigate the unacceptable risk. Further, the objectivity of the grandfather, the vigilance of the mother, and the salutatory effect of these proceedings all combine, in my view, to further mitigate in respect of any risky sexual behaviour by the father or behaviour ambiguous in the understanding of the mother.
Dr C is of the view that any reintroduction of the children to the father must be gradual with the possibility of some accompanying therapy. While she suggests that some suitably experienced and competent therapists might be available, I have no candidates placed before me. In any event, I am concerned that the process of therapy might be in itself self–perpetuating to these young children who, on my findings, have already been enmeshed in the mother’s firm beliefs as to sexual abuse on them by their father. Further, the contents of Dr C's second report suggest that the children themselves have no real understanding of any particular sexual activity and impropriety by the father and therapy might in itself have a negative impact. As such, and given the impressive evidence of the paternal grandfather, I am satisfied that he might be available to any complaint by the children or either of them and together with an order extending the appointment of the ICL for a period of 12 months (with liberty to apply) and a discretion in the ICL to engage a therapist would cumulatively suffice.
I am of the view that the introduction of time for the children with the father should initially be for daytimes over a period of one day on consecutive weekends following which there can be a transition to full weekend time and holiday time consistent with previous arrangements which would be familiar to the children, but where the children's time must be supervised by the paternal grandparents or either of them. Obviously this is an onerous obligation on the grandparents and an impact in the long term on the fluidity and flexibility of the relationships between the children and their father. The transparent intention of such orders together with the findings made above is, of course, that the mother herself will eventually gain trust and confidence in the father and the safety of her children. It would then be for the parents themselves to agree an easing of further supervision constraints or, alternatively, one or the other to make application to this Court where a change in the circumstances would need to be demonstrated.
I will order that the ICL directly and personally explain to the paternal grandparents the obligations of an order for supervision and the ramifications for breach of such an order. They will, of course, also have the ability to make an independent application to this Court to be relieved of the obligations of supervision.
There remains an issue of parental responsibility. Given the previous cooperative history between these parties and my findings above, together with an anticipated successful re-engagement of the children with their father, I am of the view that the children's best interests are served by there being an order for the parents to exercise equal shared parental responsibility. The mother has shown an ability to enmesh the children in her own viewpoints and this could be tempered by contribution by the father towards long-term decision-making for the children which, of course, does not present on a frequent basis which, in turn, could also serve to return some trust and confidence to the mother.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 19 May 2022
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