Terry and Keeler

[2010] FamCA 665

FAMILY COURT OF AUSTRALIA

TERRY & KEELER [2010] FamCA 665

FAMILY LAW – CHILDREN – Best interests of the child – Allegations of sexual abuse – Proof on the balance of probabilities – Mother sought to relocate from the Australian Capital Territory to Queensland – Consideration of appropriate orders sought when parties cannot communicate – Unrealistic to seek orders for equal shared parental responsibility in the circumstances where the parties are highly antipathetic towards each other – Presumption of equal shared parental responsibility rebutted

Evidence Act 1995 (Cth) ss 140(1), 140(2)
Family Law Act 1975 (Cth): ss 60B(1), 60B(2), 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(3), 61DA(4), 65L(1), 65DAA(1), 65DAA(2), 65DAA(3) 65DAC(1), 65DAC(2), 65DAC(3), 65DAC(4)

Aldridge & Keaton (2009) FLC ¶93-421
B & B [1988] HCA 66
Briginshaw v Briginshaw (1938) 60 CLR 336
Collu & Rinaldo [2010] FamCAFC 53
Kings & Murray [2009] FamCA 565
M & M (1988) 166 CLR 69
Makita(Australia) Pty Ltd vSprowles [2001] NSWCA 305
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
Partington & Cade (No. 2) [2009] FamCAFC 230

APPLICANT: Mr Terry

RESPONDENT: Ms Keeler

INDEPENDENT CHILDREN’S LAWYER: Ms C. Grogan, Elrington Boardman Allport Lawyers

FILE NUMBER: CAC 1182 of 2009

DATE DELIVERED: 13 July 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATES: 23 & 24 June 2010
23 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. Mazengarb

SOLICITOR FOR THE APPLICANT: Mazengarb Barralet Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr S. Gill

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission ACT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms C. Grogan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Elrington Boardman Allport Lawyers

Orders

IT IS ORDERED THAT:

1. Ms Keeler, the mother of X, born … June 2006 (“the child”) have sole parental responsibility for the child subject to the orders set out hereafter.

2. Notwithstanding Order (1), the child’s mother will inform Mr Terry, the child’s father, about:

   a.All serious medical issues relating to the child;

   b.The names of the child’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom the child may be attending;

   c.Details about her schooling including any information about the child’s progress;

   d.Any major events in the child’s life including important visits either by her, or to her, and about her activities.

   e.This information may be conveyed in the communication book or by email or by letter from time to time as it may be appropriate to do so and the child’s mother will ensure that the information is conveyed as soon as practicable after the happening of the events referred to.

3. The child’s mother will authorise and direct the following to provide information to the father upon his request about the child.

   a.The child’s school, her school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality);

   b.The child’s doctors, dentists, therapists or other medical or allied professionals including information about her treatment, her diagnosis and her prognosis from time to time.

4. The child’s mother will consider consulting and discussing with the child’s father major decisions affecting the child’s wellbeing.

5. Notwithstanding the above orders, the child’s mother will have the right to make decisions about the child’s long-term care, welfare and development.

6. The child will live with her mother.

7. The child will spend time with her father (unless the parents otherwise agree from time to time or generally) as follows:

   a.From 4.00pm until 7.00pm on each Thursday of each week except during school holiday times as hereafter set out.

   b.Until Saturday 18 September 2010,

   i.From 10.00am to 5.00pm on Saturday of each week,

   c.From 18 September 2010 until 20 November 2010,

   i.from 9.00am on Saturday until 11.00am on Sunday of each week;

   d.From 20 November 2010 until 22 January 2011 (excluding Christmas Day)

   i.From 9.00am each Saturday until 5.00pm each Sunday

   e.In 2010, the child will spend Christmas Day with her mother.  In lieu of the time she would spend with her father ordinarily on that day she will spend the same time on 24 December 2010 with her father.

   f.After 26 January 2011 for the whole of 2011,

   i.The child will spend from 5.00pm on Friday until 5.00pm on Sunday in each alternate week with her father, the first of such weeks commencing on 4 February 2011.

   g.From the time the child commences school in 2012 she will spend;

   i.From Friday at the conclusion of school to the commencement of school on the following Monday in each alternate week;

   ii.For one half of each of the shorter school term holiday periods being the first week during 2012 and in each of the following years ending in an even number or a zero, and the second half in years ending in an uneven number;

   iii.Week and week about during the Christmas school holidays on the basis that she will alternate Christmas Eve and Christmas Day with her parents in accordance with the pattern established by the earlier orders contained herein;

   iv.The child will spend time with her father on her birthday between the hours of 3.00pm and 5.00pm unless the parents otherwise agree and on her father’s birthday between the hours of 3.00pm and 7.00pm unless the parties otherwise agree.

   v.If Father’s Day falls on a day other that a day on which the child would ordinarily spend with her father (that will include the times that she would spend with him on a Saturdays in the first part of the program herein before set out) she will spend the same period of time as she would ordinarily have spent with her father on the Saturday with her father on the Sunday of Father’s Day but she will not spend the time that she would have otherwise have spent on the Saturday with her father.

8. The mother is hereby restrained from changing the child’s place of residence from the Australian Capital Territory/Queanbeyan, New South Wales district without the written agreement of the father or a further order of this Court.

9. Notwithstanding the injunction restraining the mother from removing the child from the Australian Capital Territory/Queanbeyan, New South Wales region,

   a.The mother may travel with the child to Queensland on at least one occasion during the year for a period not to exceed two weeks unless the parties otherwise agree.

   b.The mother will give to the father appropriate notice of when she proposes to travel to Queensland and will not allow such period to coincide with Christmas Day unless the parties agree.

10. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.  Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.

11. All extant applications are discharged.

12. The matter be removed from the Pending Cases Inventory. 

13. As one only of the methods of communication between them the parents will maintain a communications book. 

    a.Each of the parents will keep the communications book during the period that the child is with him or her and will enter into it matters that relate to events that have occurred involving the child or matters which bear upon her welfare. 

    b.Neither parent will use the book to record comments about the other parent or to make disparaging remarks about any other person.

    c.Each of the parents will return the communications book with the child at the end of each period during which the child is with him or her.

    d.Each parent is free to photocopy any part of the book if he or she wishes to do so (although it is hard to conceive of circumstances in which that would be necessary or appropriate). 

14. No parent will alter or delete anything written by the other parent without that parent’s consent.

15. To the extent that the time with father would otherwise spend with the child will be affected or interfered with by the time that the mother spends with her in Queensland, that time will be made up for in the week or weeks immediately following the child’s return or at such other time that the parents agree.

16. The appointment of the Independent Children’s Lawyer is discharged.

17. The parties will attend upon Ms N, the Family Consultant attached to this Court, for the purposes of accepting her recommendation about an appropriate person to provide them with counselling to assist them in the carrying out of the orders that I have made this day.

IT IS NOTED that publication of this judgment under the Terry & Keeler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1182 of 2009

MR TERRY

Applicant

And

MS KEELER

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parenting orders that the Court should make in relation to the child of the parties, X, born in June 2006. 

2. The final minutes of orders sought by the father, which were filed on 9 June 2010, substantially mirrored the arrangements that have been proposed by the family reporter, Ms N. The father did, however, seek an order for equal shared parental responsibility. The father sought an order pursuant to s 65L(1) that the family consultant supervise compliance with the orders, and that the time spent with the child be reviewed within 12 months. The father also sought an order that there be a specific doctor appointed as, effectively, the child’s only doctor. The father also sought an order restraining the mother from leaving the Australian Capital Territory.

3. The mother filed a chronology and minutes of orders sought on 8 June 2010.  The mother sought an order that she have sole parental responsibility for the child and for the child to live with her.  The mother also sought to be permitted to relocate to Queensland with the child and that there be no time that the child spend with her father.  Alternatively, the mother sought that if the Court did make orders for time to be spent between the child and her father that it should be on a supervised basis. 

4. The Independent Children’s Lawyer (ICL) initially sought an order for equal shared parental responsibility for the parents, but later changed her position to seek an order that the mother have sole parental responsibility.   The ICL also sought an order that the child live with her mother and that the child spend time with her father “as defined by the Court” and “to increase on a gradual basis”.  The ICL also sought an order that the mother not be permitted to relocate with the child to Queensland.  The ICL sought an order that each parent notify the other parent of their current telephone numbers and addresses.  The ICL also sought an order that there be a limited period of supervision for the time that the child spent with her father to assist the mother to move forward.  This was supposed to be limited somewhat coincidentally to 13 July 2010 and should thereafter be unsupervised.  The ICL supported the family reporter’s report and her recommendations. The ICL recommended there should be a communications book, and there should be some orders about it.  The ICL also submitted that there should be an order that permitted the child to go to Queensland at least once annually. 

5. The issues that were remaining to be resolved in the course of the hearing, and by this Judgment, are as follows:

   (1)Allegations that the father had sexually abused the child; 

   (2)Allegations of violence – sexual and otherwise – made against the father by the mother, including the unusual circumstances in which the child was conceived;

   (3)The mother’s relocation to Queensland with the child;

   (4)Whether the child should spend no time, supervised time or unsupervised time with her father;

   (5)The absence of communication between the parties;

   (6)The lack of respect and trust between the parties;

   (7)The ability of the mother to encourage the child spending any time with her father; and

   (8)The need for the mother and the child to spend time in Queensland.

6. During the course of the proceedings before this Court and the Federal Magistrates Court of Australia, there were some eight sets of orders made which provided for various arrangements for the time that the child might spend with her father.  These arrangements involve time that was generally supervised.  On 8 December 2009, the time that the child was to spend with her father was suspended after allegations of sexual abuse had been made. 

7. At the apex of this Judgment is the paramount consideration that I take into account X’s best interests – not what is fair to the parents individually or other factors.

8. Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the Objects and Principles upon which that part of the Act is predicated.

9. The Objects of Part VII and the Principles underlying it are contained in s 60B of the Act, which relevantly provides:

   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).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

10. Under s 60CA of the Act, in deciding to make a parenting order in relation to a child, a Court must regard the best interests of the child as a paramount consideration.

11. Section 61DA of the Act relevantly provides as follows:

    61DA  Presumption of equal shared parental responsibility when making parenting orders

    (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

    Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

    (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b)family violence.

    (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

12. In this matter, I am not satisfied that the violence that was alleged has been made out in accordance with the requisite standard of proof as stipulated under s 140(1) of the Evidence Act 1995 (Cth). In Kings & Murray,[1] I provided the following commentary on the relevant standard of proof, being the balance of probabilities:

    [8] Proof on the balance of probabilities involves, among other things, a consideration of what is more likely to have occurred than not.  However, it has been well known for some time (and the Evidence Act1995 (Cth) provides for this[2]) that where what is being sought to be proved is a grave and serious matter, or put in more blunt terms, if what is sought to be proved might be a criminal action, then the Court must apply what has been loosely described in the past as the Briginshaw v Briginshaw[3] standard of proof.  In that decision, their Honours (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) considered whether the matter required to be proved (which related to whether adultery on the part of one of the parties had occurred or not) was to be proved on the civil standard of proof or some other standard.  [9] In his, judgment, his Honour, Dixon J,[4] in commenting about the difficulty in making decisions in civil cases, stated:[5]

    The truth is that, 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.

    [8] That is, in part, the difficulty I face in the proceedings before me, and I will explain why below.  In addition, his Honour stated:[6]

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

    [1] Kings & Murray [2009] FamCA 565.

    [2] Evidence Act 1995 (Cth) s 140(2) refers.

    [3] Briginshaw v Briginshaw (1938) 60 CLR 336.

    [4] His Honour subsequently became Chief Justice of the High Court of Australia in 1952.

    [5] Briginshaw v Briginshaw [1938] 60 CLR 336, 361 (Dixon J).

    [6] Ibid 362.

13. I suspect on the evidence before me that the father was in fact more violent than he conceded during the course of the proceedings.  The mother’s evidence about being drugged by the father, and being drunk and her consequent rape by the father is unbelievable.  I find it unbelievable and unacceptable because of the lack of the immediate report about the rape and the inconsistencies in her story given over the course of these proceedings, and the fact that the story changed from time to time. 

1. I find the evidence of the child about what is asserted to have occurred to her is disturbing, but not ultimately convincing. In this regard, I note the father’s sworn denial. It is unnecessary that I find the nominated exception in relation to family violence, set out in s 61DA(2), because this is a matter in which the presumption, in my opinion, is rebutted in any event pursuant to s 61DA(4). This is, in part, because of the terms of s 65DAC of the Act which relevantly provides:

   65DAC  Effect of parenting order that provides for shared parental responsibility

   (1)This section applies if, under a parenting order:

   (a)2 or more persons are to share parental responsibility for a child; and

   (b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

   (2)The order is taken to require the decision to be made jointly by those persons.

   Note:Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   (3)The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b)to make a genuine effort to come to a joint decision about that issue.

   (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

2. These parents cannot and will not, and I suspect they never will, agree about important decisions for the child.  Both have high aspirations for her, but they also have deep seated feelings of contempt, distrust, anger and resentment to the other parent in about equal proportions.  Unless there is a drastic change in their attitude, it is hard to see that these parents will ever fulfil their undoubted obligations to co‑operatively work for the child’s best interests. 

3. I am far from satisfied that an order for them to share equally responsibility for the child would ever work.  I decline to make such an order.  In this regard, I note the following statement of the Full Court of the Family Court of Australia (Faulks DCJ, Boland & Stevenson JJ) in Marvel & Marvel(No. 2),[7] which relevantly provides:

   [103] It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.

   [7] Marvel & Marvel (No. 2) [2010] FamCAFC 101.

4. X has been in her mother’s primary care for most of her life.  No one is now suggesting this should change.  I consider it to be in the child’s best interests for the mother to have sole parental responsibility. In making that determination, I am not at all confident that the child’s mother will inform, let alone consult, let alone confer about major decisions in X’s life with the child’s father.

5. I hope that I am proved wrong, because one of the worries that the child’s mother should have, if she does not have such a worry at present, is that the mother’s lack of respect for the father may, in the words of the family consultant, “turn around and impact on how [the child] views her mother in due course” (page 10 of the family report refers).

6. It is not necessary that the parents like each other or are affectionate to each other, but they must learn some way to communicate with each other, not for their sakes but for the child’s sake.  It will have to be far more akin to a business relationship between them: courteous, firm, clear, to the point, informative and appropriate.

7. I do not believe they lack the capacity, only the will at present.  When they learn to love the child more than they hate each other, it will be a rainbow day for the child.  Communication books are only as good as what people write in them.  They are frequently more of a problem than a help, and particularly when a court case is pending.  In this regard, parents write for an audience, presumably the Court, rather than for each other or for the child’s benefit.  The mother complains that the father does not write anything in the communications book. The father fears that what he writes will in some way be used against him by the mother.  The father says he is given no opportunity to write anything meaningful.  The mother says the father is uninterested.  The mother will not let the father take the book away because he might tear pages out.  The father complains that the book is snatched out of his hands. 

8. What can I say?  There has to be a better way for X.  My orders will require the mother to inform the father about medical issues, medical practitioners and allied professionals, schooling and the child’s progress at school, major events in the child’s life, important visits and activities.

9. My orders will also require the mother to authorise the father to find out from the child’s school how she is progressing from her doctors, dentists, therapists and other medical or allied professionals, what she is being treated for, her diagnosis, prognosis and treatment and will require the mother to consider consulting and discussing with the father decisions affecting the child’s wellbeing.

10. In the end, however, the mother will have the right to make decisions about the child’s long‑term welfare. Because the presumption of equal shared parental responsibility is rebutted, I am not obliged to consider in the terms of the Act whether there should be an order for equal shared time or substantial and significant time, as is required by s 65DAA of the Act.[8] 

    [8] Family Law Act 1975 (Cth) s 65DAA(1) & s 65DAA(2) refers.

11. The father originally wanted to move to equal shared time arrangement.  This was a misplaced ambition then and is sensibly now no longer sought.  The family report reporter offered some insight into the father’s motivation in this regard by reference to his troubled childhood.  This was speculation and I place no reliance upon the reports of either Ms C or of Ms N in relation to this supposed motivation. 

12. There seems to be an agreement from the father’s friends and family about the genuineness of his desire to be a father to X.  That, I suppose, is to be expected from that particular group of people, but there is support for this both in the report of Ms C some three years ago now, on 12 September 2007 at page 16, where she described the father as “a caring, pleasant man who merely wanted to gradually establish contact with his only child” and from Ms N some three years later on 8 June 2010 comments that, “He appears to have insight into his own behaviour and into how his behaviour might impact upon [X].”

13. Ms N also makes positive observations about the father with the child on page 8 of her report.  On the other hand, the mother remains “embittered, scathing” – family report page 9 – and “consciously or not”, (and I think not), “poisoning of [X’s] relationship with her father.”  Of course, she has believed fervently that the father abused the child.

14. That opinion seems to have softened a little as a result of hearing the evidence in these proceedings.  It is to the mother’s credit that that, in fact, was a concession, in effect, from her counsel.  The mother’s protective instincts for her daughter are understandable and, in some respects, laudatory, but she has allowed her hatred – and I use that word advisedly – for the father to cloud and override her judgment.

15. The mother has been consistently praised by the father for her capacity to care for the child.  In this regard, one could look at Ms C’s report at page 6 and paragraph 5.9 where she quotes the father, in effect, “there are no care concerns about [X].”  Further, in the family report at page 4 in paragraph 16 “[the mother] is described to be a good parent who takes good care of both [Z] [the mother’s daughter from another relationship] and [X].”

16. Both reporters concluded that X should spend time with her father.  Ms N set out a graduated but comprehensive staged program that she suggested took account both of X’s age and development requirements and did not separate the child from her mother for too long.  The father and the ICL adopted substantially these suggestions, but the mother was unmoved.

17. Such an arrangement would not be possible if the mother were in Queensland and the father were in the ACT. The final stage of the arrangements proposed may represent substantial and significant time, as that phrase is described in the legislation.[9] Whatever label the Parliament chooses to give the arrangements is not all that important in this case, as s 65DAA does not apply.

    [9] Family Law Act 1975 (Cth) s 65DAA(3) refers.

18. Before I turn to other matters, it is important that I consider the issue of sexual abuse.

19. I shall deal with these allegations in this way. I indicated at the beginning of my Judgment that the relevant standard of proof is, in accordance with s 140(1) of the Evidence Act 1995 (Cth), on the balance of probabilities. This does not mean that I can or should merely balance the probabilities of an event occurring by a mere mechanical process and then reach a conclusion. I need to be persuaded that what is alleged has actually occurred.

20. The situation, as is the case in so many of these cases, is one in which the only two witnesses to the alleged events are the child and the suggested perpetrator – in this case, the father.  The child was very young and her evidence as reported and as was seen on the police video was not really convincing.  I do not expect that she, at her age, be a star witness or something equivalent thereto, and to some extent her allegations were curiously explicit and somewhat bizarre.  On the other hand, she was reported as having no fear or concern about her father when she was with him.  The phrase that occurred over and over again in the statements of each of the reporters and of each of the witnesses was when the child said things to her father which were, in some respects, quite horrific, she did so in a matter‑of‑fact way.

21. The words “matter‑of‑fact” appeared again and again.  On the other side of the equation, the father denied the allegations on his oath.  After due consideration, I could not be convinced that something untoward happened, and neither could I entirely exclude the possibility that something did happen.  I can make no finding either way, which I find distressing for me and for the parents.

22. This is unsatisfactory for both parents, but I must assess the evidence as I see it.

23. It is necessary to consider the question of unacceptable risk to the child in spending time with her father.  In Kings & Murray,[10] I provided the following commentary on the question of “unacceptable risk”:

    [10] Kings & Murray [2009] FamCA 565.

    [36] The High Court of Australia in M & M,[11] (which was a parallel decision with B & B[12] decided at about the same time on a substantially similar issue), considered questions of child abuse in a number of different ways.

    [11] M & M (1988) 166 CLR 69.

    [12] B & B [1988] HCA 66.

    [37] Their Honours (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) suggested that:[13]

    [13] M & M [1988] 166 CLR 69, 76 (The Court).

    In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is satisfied according to the civil standard of proof, with due regard to the fact that was mentioned in Briginshaw v Briginshaw…

    to which I have previously referred.  Their Honours also stated:[14]

    [14] Ibid 77.

    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 allegations as groundless.  Again in the nature of things, there will be very many cases … in which the Court cannot confidently make a finding that sexual abuse has taken place.  And there are strong practical family reasons why the Court should refrain from making a positive finding of sexual abuse has actually taken place, unless it is impelled by the particular circumstances of the case to do so.

    [38] I would have been impelled, if I were able to do so, to make that determination because it is the precise issue in these proceedings before the Court. Their Honours also stated:

    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 assess the magnitude of that risk.  After all, in deciding what is in the best interests of the 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 [a] child’s welfare.  The existence and magnitude of the risk of sexual abuse as with other risks of harm to the welfare of the 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 one of supervised contact.

    [39] Their Honours summarised the approach that should be taken in these matters by stating that:[15]

    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.[emphasis added]

    [40] In my opinion, their Honours, in formulating that test in M & M, did not formulate a third standard of proof.  Nor did they formulate an additional test in accordance with Briginshaw v Briginshaw, because they made reference to the standard of proof in civil proceedings.  I also do not believe that their Honours stated that if the Court is unable to be satisfied in those terms, that there is some lesser standard that is unacceptable risk. What their Honours did say, in my opinion, is that if there are to be orders made about a child, then the Court must be acutely conscious of the fact that such orders may, in some circumstances, expose a child to an unacceptable risk.  This, as a matter of logic, in my opinion, goes very close to being self-contradictory.  If the Court has been unable to make a determination about whether or not something has occurred, it seems difficult for the Court to then analyse how it can be said that there can be an unacceptable (or an acceptable) risk that that thing has occurred. 

    [41] In one sense, no risk that something like that has occurred could possibly be acceptable.  On the other hand, the possibility and the incongruity of something like that occurring, and the possible consequences for the child, are factors which may influence [a judge about] whether or not a risk is acceptable.

    [42] The following example is illustrative of the dilemma.  If one were to cross the road, there is a risk that one might be killed by a car hitting you. That risk would be significantly greater in crossing a busy five-lane highway in the middle of the day than it would be in crossing a country road in the middle of the night.  The consequent harm that would be caused to the person involved would be identical in both cases, but the overall circumstances in which the matter occurred would indicate that the risk would be less in one case than the other. 

    [43] Applying that sort of logic to this situation, I do not derive any significant assistance from the concept of unacceptable risk.  If, as I have suggested, I am unable conclusively to determine on the basis of the evidence before me whether something has happened or not, in my opinion, it seems to me that it is almost impossible for me then to say that there still might be a risk that it something may have happened and that therefore the child should spend no time with her father.  Nor could I alternatively conclude that there is no risk, because I have not been able to find it and that therefore there should be unqualified time spent between the father and the child.

    [15] Ibid 78.

24. In Partington & Cade (No. 2),[16] the Full Court of the Family Court of Australia (Bryant CJ, Warnick & Boland JJ) recently examined the difficulties associated with determining whether a risk is unacceptable or not, in the context of past behaviour. 

    [16] Partington & Cade (No. 2) [2009] FamCAFC 230, [57] – [61].

25. In this case, three years ago Ms C recommended there should be supervised contact, although given that “she could see no reason to be concerned about [the father]” (page 16 of her report).  It is hard to know why she made such a recommendation.

26. I reject that recommendation as being appropriately determined by the factors that she identified during the course of her report, and it does not appear to me to be a conclusion that is supportable in accordance with the principles enunciated in Makita(Australia) Pty Ltd vSprowles.[17]

    [17] Makita(Australia) Pty Ltd vSprowles [2001] NSWCA 305, [85] (Heydon JA – as he then was).

27. Ms N, at page 10 of her report, formed the view that nothing points to the necessity for the child to spend time with her father on a supervised basis.  The ICL in her final submissions on 23 June 2010 suggested that some initial short period of supervision might be appropriate “to help the mother to move forward”.

28. I cannot conclude that there would be an unacceptable risk to the child if I were to make orders as the family reporter, the ICL and the father all suggest.  While I would ordinarily accept that a judge should look to past behaviour to find a signpost of future conduct, just what activities the father was responsible for in the past are not clear.

29. The evidence of the father and the mother is deeply conflicted.  I am unhappy about the accuracy of the mother’s reports, but I am anything but prepared to make an adverse credit finding against her at this point.  I am at the same time left with some uneasiness about some aspects of the father’s evidence.

30. I have to be impressed, however, with the father’s persistence over some four years in pursuing a relationship with the child.  I would have been easier for him to just fade away if he harboured concerns about something that he had done which would be found out.  I am not satisfied that to make orders as the family consultant recommended would expose the child to any unacceptable risk.

31. What, then, can I conclude about X’s best interests? 

32. In Aldridge & Keaton,[18] the Full Court of the Family Court (Bryant CJ, Boland & Crisford JJ) held that the Act does not (at 83,825):

    …direct any particular weighting or priority to any provision in [Part VII] (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the consideration in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations.

    [18] Aldridge & Keaton (2009) FLC ¶93-421.

1. In Marvel & Marvel(No. 2), the Full Court of the Family Court took the approach of considering the s 60CC(3) (additional considerations) prior to considering the s 60CC(2) (primary considerations).[19]  I propose to adopt the same course in this matter.

The additional considerations: s 60CC(3) of the Family Law Act 1975 (Cth)

[19] Marvel & Marvel (No. 2) [2010] FamCAFC 101, [140]; see also Collu & Rinaldo [2010] FamCAFC 53 (May, O’Ryan & Strickland JJ), [334] – [335].

1. I turn to the additional considerations pursuant to s 60CC(3) of the Act.

• Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child 's views (s 60CC(3)(a))

1. In this case, in my opinion, her views are not particularly relevant.  It is clear that she is happy with her mother and all the reports of her time with her father, as observed by those who are capable of providing independent advice, suggest that she is also happy with her father. 

• The nature of the relationship of the child with:

  o   each of the child’s parents; and

  o   other persons (including any grandparent or other relative of the child) (s 60CC(3)(b))

1. It would be fair to say that the relationship of the child with her father is substantially embryonic.  This is because of the restrictions that have been placed upon the time that she has had with him in her relatively short life.  Restrictions, I might add, that were not sought by or in any stimulated or encouraged by her father.

2. There are others in her life who are not quite so important to her at the present time, and as she grows up I have no doubt there will be a stronger relationship between her and her grandparents, but at the moment the two important people in her life are her mother and her father.

3. The importance to the child of her mother’s involvement in her life has been conceded by her father and commented upon by each of the family reporters. 

• The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (s 60CC(3)(c))

1. A factor bearing upon the involvement of the mother with the child is her willingness or, perhaps more accurately, her unwillingness to facilitate the relationship that the child might have with her father.

2. The program that is being proposed is a graduated program, is age appropriate, and provides certainty.  The necessity for certainty was emphasised by the ICL as the parties find it difficult to reach agreement about variables in the child’s day‑to‑day life.  I do not delude myself that the orders that I propose to make will be comprehensive enough to provide that the parties do not have disagreements.  I suspect strongly they will continue to have disagreements, and while it would be nice to think they will move forward from today in a way that does not require them to come back to this Court, I would be surprised if I do not see them again.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

o   either of his or her parents; or

o   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living (s 60CC(3)(d))

1. I am to take into account the likely effect of any changes in the child’s circumstances, including the likely effect on her of any separation from either of her parents.  If the child were to move to Queensland, as the mother suggests, then I have very little doubt that there would be no relationship between the father and the child in the future.  If the child remains, the mother is deprived of her support structure, as she perceives it to be in Queensland.  This is a balance that I have found somewhat difficult to adjust, although, in the end, I have come down in favour of her preserving the relationship with each of her parents. 

• The capacity of:

  o   each of the child’s parents; and

  o   any other person (including any grandparent or other relative of the child);

  to provide for the needs of the child, including emotional and intellectual needs (s 60CC(3)(f))

1. I am to take into account the capacity on the part of each of the parents to provide for the child’s educational, psychological, and emotional wellbeing.  It is interesting, in this regard, to contrast the father’s assessment of the mother’s capacity, as I have outlined above, with the mother’s perpetual disparagement of the father.  I accept from the evidence I have before me and, in particular, from the reports which, although providing a limited view of the father’s activities with the child, has indicated that he has a lot to offer her. 

2. There are other factors under the section that I am obliged to take into account, including X’s maturity and background, and if it were appropriate, any Aboriginal or Torres Strait Islander heritage.  These are not factors which bear upon my decision in this matter.

• The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (s 60CC(3)(i))

1. In this regard, I was disconcerted by the father’s persistence with DNA testing at an early point in the child’s life.  I found that that was neither impressive, nor his persistence with it appropriate.  I note that the mother has sought, at all times, to protect her daughter, but has not helped her daughter by the contempt which she has displayed consistently for the child’s father. 

2. I find one particular instance with the mother quite extraordinary.  In the course of her cross-examination, the mother indicated that she had made a joke to the child about her, she says, imaginary boyfriend S who was, in fact, regarded by the child, apparently, as – and I quote – “that man.” This is a phrase which has turned up again and again in the course of various allegations.  To the extent that the child’s mother thought this was appropriate as a joke if, indeed, it was, then it was a joke that has hopelessly backfired, and really caused me to be very seriously concerned about her ability to see on an overall basis what might be the most important things for X’s best interests. 

• Any family violence involving the child or a member of the child's family (s 60CC(3)(j)); and

• Any family violence order that applies to the child or a member of the child’s family, if:

  o   the order is a final order; or

  o   the making of the order was contested by a person (s 60CC(3)(k))

1. Family violence is not a current feature of the parties’ relationship.  It is difficult to assess to what extent it was in the past.  Any orders that I make are not likely to be impacted upon in any way by any violence that has previously occurred. The parties’ circumstances have changed. While I am not disregarding the need to give proper and due consideration to past conduct, in my opinion, the question of violence does not impinge upon the parties’ future relationships.

• Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child (s 60CC(3)(l))

1. The Act also requires, somewhat bizarrely, in the context of this matter and many others that appear before me, that I should make such an order as would, in effect, limit future litigation between the parties.  One could only comment who knows what that might bring in this situation.   I have no basic confidence that there will not be further litigation at some point. 

The primary considerations: s 60CC(2) of the Family Law Act 1975 (Cth)

1. I turn then to the primary considerations. Section 60CC(2) of the Family Law Act 1975 (Cth) relevantly provides:

   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.

2. The primary considerations under the Act, which Brown J (as she then was) referred to as the “twin pillars”[20] are sometimes perceived to be contradictory, or a dilemma.

   [20] Mazorski & Albright [2007] FamCA 520, [3].

3. It follows from the reports and, indeed, from my analysis and assessment of the evidence that, in my opinion, it would be in X’s best interests to have a meaningful relationship with both parents.  If she does not, it may affect her relationship with her mother, as Ms N has warned.  This cannot be accomplished physically, in this case, if the mother and the child are living in Queensland, and moreover, if she did move to Queensland, then I sincerely doubt that the child would ever spend any time with her father at all.

4. I do not think the mother could bring herself to do it.  More frequent times for her with her father, for shorter duration, would not be possible or practicable if the mother and the child were in Queensland.  The best evidence I have is that short separations from her primary carer would be best for the child in the short and medium term. 

5. The second primary consideration is the need to protect the child from abuse or psychological or physical harm, or family violence.  I have found, in the course of my Judgment, that there would be no unacceptable risk from the father to the child in the arrangements proposed.

6. I accept that this may cause the mother some distress.  I accept that those arrangements may well have that effect.  It would be easy to say she should “get over it” and that she must accept this Judgment.  That is not fair to someone who has devoted herself to her daughter and had sought to protect her, even if she has pursued this in a way which I find, in many respects, unacceptable.  The mother will need help.  I request the family consultant to speak to her and to guide her to some counselling assistance.  Equally, the father may benefit from counselling assistance to help him to understand the process and transition that these orders will bring about.

7. Finally, I turn to the question of relocation.  It follows from what I have said, that I do not believe that it is in X’s best interests for her and her mother to relocate to Queensland as a general proposition.  In addition, the mother’s proposal is ill-thought out and unrealistic.  In broad terms, I accept the submissions of the father’s counsel in this regard.  It is difficult, when proceedings are pending, to make firm plans, but the mother’s proposals for housing, schooling, child care and the like and, for that matter, the time that the child might spend with her father, are vague to the point of demonstrating nothing more than getting away from the father at almost any cost.

8. In my opinion, X’s best interests would not be served by the relocation.  They would, however, be served by her being able to spend time in Queensland every year as was recommended by the independent children’s lawyer.

9. I make orders in accordance with my Judgment.  The matter is removed from the Pending Cases Inventory. 

I certify that the preceding sixty-nine (69) are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Senior Legal Associate:

Date:  3 August 2010