Thompson and Booker

[2019] FamCA 418

FAMILY COURT OF AUSTRALIA

THOMPSON & BOOKER [2019] FamCA 418

FAMILY LAW – CHILDREN – Interim parenting orders – where there are allegations that the Father sexually abused the child – where the Father has not seen the child for nearly three years – central issue is whether the Father should spend supervised time with the child prior to the final hearing – whether there is a risk of traumatisation for the child if she spends time with the Father – whether the risk of traumatisation is outweighed by the risk that the child will not have a relationship with the Father if they do not see each other.
EVIDENCE – Opinion offered by a treating expert – limited exposure of reasoning – relevance – admissibility – weight.

Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 65DAA.

Dasreef v Hawchar [2011] HCA 21
Lane v Nichols [2016] FamCAFC 234
Marsden & Winch (No 3) (2007) FamCA 1364
W K Cao & Cao [2018] FLC 93-880.

APPLICANT: Mr Thompson

RESPONDENT: Ms Booker

INDEPENDENT CHILDREN’S LAWYER: Ms J Cruise

FILE NUMBER: BRC 14778 of 2018

DATE DELIVERED: 2 July 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Davis

SOLICITOR FOR THE APPLICANT:	Condon Charles Lawyers
COUNSEL FOR THE RESPONDENT:	Ms B Morrisroe

SOLICITOR FOR THE RESPONDENT: Gordon Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

That until further order:

1. The child Y, born in 2012 live with the Mother.

2. The Mother have sole parental responsibility for Y.

3. The Mother provide the Father with the contact details of Y’s school and treating practitioners and give the necessary authority to her school and treating practitioners for the Father to be provided with information about Y.

4. Y spend time with her Father for two periods of up to four hours per day across a period of up to three days once each six week period on a supervised basis at the H Contact Centre, with the dates and times to be as scheduled by and subject to the availability of the H Contact Centre.

5. For the purposes of the above Order the Father is to advise the Mother in writing of the nominated dates for the visit at least 3 weeks prior to the visit.

6. The Father shall be solely responsible for the costs of the H Contact Centre.

7. The parties are at liberty to vary the arrangements for supervised time by agreement in writing.

8. Y shall have electronic contact with her Father each Friday for a period occurring between 6.00pm and 7.00pm EST with the Father to initiate the communication by a means nominated by the Mother to him in writing.

9. In the event that the Father is unable to initiate the contact in the above order by reason of his work roster then, provided he has given the Mother 48 hours notice in writing of his inability, then the electronic contact shall take place on the following Saturday between 11.00 am and 12pm on the same basis.

10. It is noted that the Mother may record the communications between Y and the Father and that she is at liberty to nominate that the communications take place in her presence.

11. The matter is transferred to the Registrar’s list pending further application or the listing of the matter for the making of trial directions.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: BRC14778/2018

Mr Thompson

Applicant

And

Ms Booker

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to this matter are Mr Thompson, the Applicant Father, and Ms Booker, the Respondent Mother.  The parties commenced a de facto relationship in mid-2009 and separated in around November 2014.  The Mother moved out of the shared home in around January 2015.  There is one child of the relationship, Y, born in 2012 (currently aged seven). 

2. These current proceedings concern the interim parenting arrangements for Y, and in particular, whether the Father should be permitted to spend supervised time with Y pending the final hearing. 

3. The Father has not spent face to face time with Y since September 2016, when Y was approximately four and a half years old.  The Father has had occasional phone contact with Y since that time.

4. A central factual issue in these proceedings is the allegation that the Father sexually abused Y.  While the question of whether sexual abuse cannot be determined in this interim decision, it is nonetheless an essential consideration for the interim orders made within.  The key issues identified by the parties at present are:

   a)The risk of traumatisation if Y spends time with the Father (if he has sexually abused her);

   b)The risk of Y losing the relationship with her Father (or perhaps more accurately, the opportunity of a relationship with her Father) if she continues not to see him in the interim; and

   c)The potential impact that Y spending no time with her Father pending trial may have on the determination of Y’s best interests at trial.

Material relied upon

1. The Father relied upon the following:

   a)Application in a Case, filed 20 May 2019;

   b)Affidavit of Mr Thompson, filed 19 December 2018;

   c)Affidavit of Ms B , filed 5 February 2019;

   d)Affidavit of MS C, filed 5 February 2019;

   e)Affidavit of Mr Thompson, filed 6 February 2019; and

   f)Affidavit of Mr Thompson, filed 20 May 2019.

2. The Mother relied upon the following:

   a)Affidavit of Ms Booker, filed 17 June 2019; and

   b)Affidavit and report of Dr F, filed 5 February 2019.

Factual Background

1. The parties are in dispute as to the level of the Father’s involvement with Y during their relationship, noting the Father was working on a 2 week on, 2 week off roster.

2. The Mother says that following separation, the pattern of contact between Y and the Father was that the Father saw Y for a couple of hours approximately once a month.[1]  This often occurred at the Mother’s house, or at the Father’s parents’ house.  The Father describes his time with Y as “often” and as also babysitting while the Mother had other appointments.   

   [1] Affidavit of Ms Booker, filed 17 June 2019, [28].

3. The Mother says that there were times when she would ask the Father if he would like to see Y but he did not take up the opportunity.[2]  The Mother alleged, and the Father denied, that he prioritised his social life over time with Y.

   [2] Affidavit of Ms Booker, filed 17 June 2019, [32].

4. The Mother says that the Father’s time with Y significantly reduced around May 2016 when the Father moved to the G Region.[3]  The Father says that he would travel to City L on his first weekend “off” every time. The Mother took Y to visit the Father in the G Region in September 2016 for Father’s Day.  Since this date there has been no face to face contact between the Father and Y.

   [3] Affidavit of Ms Booker, filed 17 June 2019, [50].

5. The Mother subsequently moved with Y to New South Wales (“NSW”) with the Father’s consent. The Mother says that since she moved to NSW in late 2016 the Father has only requested to see Y once, which he subsequently cancelled.[4]

   [4] Affidavit of Ms Booker, filed 17 June 2019, [73].

6. The Mother says that she first contacted the Father (via her lawyers) in February 2017 regarding arrangements for Y.[5]  The Mother says that the Father did not respond until June 2017 (via his lawyers).[6]  The Mother says that her lawyers responded in late July 2017, and that the Father’s lawyers did not respond until January 2018.[7]  The correspondence from January 2018 was in relation to the lawyer’s potential conflict of interest. 

   [5] Affidavit of Ms Booker, filed 17 June 2019, [92].

   [6] Affidavit of Ms Booker, filed 17 June 2019, [93].

   [7] Affidavit of Ms Booker, filed 17 June 2019, [94].

7. The Mother says that in April and May 2018 she received a request from Dr K inviting her to participate in family dispute resolution with the Father.[8]  The Mother formed the view that Dr K “was entering into the mediation with a view to achieving outcomes sought by Mr Thompson”.

   [8] Affidavit of Ms Booker, filed 17 June 2019, [96].

8. The Mother says that she was then contacted by the Father’s lawyers in July 2018 seeking paternity testing, and then again in December 2018 with documents commencing the proceedings in this Court.[9]

   [9] Affidavit of Ms Booker, filed 17 June 2019, [97]-[98].

9. The progression of the matter does not indicate urgency on the part of the Father to restore and pursue time with Y.

Allegations of sexual abuse  

1. The Mother has made a series of allegations of sexual abuse against Y by the Father.  The Father denies these allegations.[10]

   [10] Affidavit of Mr Thompson, filed 20 May 2019, [11]. 

2. The Mother says that in October 2015, Y made a disclosure of sexual abuse by the Father.[11]  This occurred not long after the Father had looked after Y twice by himself at the Mother’s house.[12]  When the Mother was changing Y’s nappy, the Mother noticed that Y’s vagina was red and inflamed.  The Mother says that she asked Y why this was and that Y responded “Daddy touched me here (gesturing to her genitals) with his twisty tool”.  The Mother says that Y then started crying.  The Mother says she spoke to her own mother about this who told her that it was likely thrush.[13]

   [11] Affidavit of Ms Booker, filed 17 June 2019, [40].

   [12] Affidavit of Ms Booker, filed 17 June 2019, [42].

   [13] Affidavit of Ms Booker, filed 17 June 2019, [41].

3. The Father denies sexually abusing Y.[14]  The Father says that he was looking after Y for around 2 hours and took her to visit his parents.[15]  The Father says that he took Y to the park near the Mother’s house while they waited approximately one hour for the Mother to return home.  The Father says he did this to take Y’s mind off her then need to go to the toilet.  The Father says that Y attempted to go to the toilet in the Mother’s backyard because she could not wait.  The Father says he was standing a few metres from Y, but was not “closely observing her”.  The Father says that Y then said she “couldn’t go”.

   [14] Affidavit of Mr Thompson, filed 6 February 2019, [28].

   [15] Affidavit of Mr Thompson, filed 6 February 2019, [28].

4. The Mother says that on 7 February 2016, after Y had been with the Father that afternoon, the Mother noticed discharge in Y’s underwear.[16]  The Mother describes the discharge as “watery and looked bloody.”

   [16] Affidavit of Ms Booker, filed 17 June 2019, [44].

5. The Father says that he received a text message from the Mother on 7 February 2016 which said “Did someone wipe Y’s bum when she went to the toilet when you had her?” to which the Father replied “She didn’t go to the toilet at all, I asked her if she wanted to go but she said no.”[17]

   [17] Affidavit of Mr Thompson, filed 6 February 2019, [52].

6. The Mother says that on 12 March 2016, after Y had been with her Father for a couple of hours, she noticed that Y’s vagina was red and a little bruised.[18]  The Mother says that Y complained that it hurt when urinating.

   [18] Affidavit of Ms Booker, filed 17 June 2019, [45].

7. The Father denies having sexually abused Y.[19]  The Father says that on 12 March 2016 he spent two hours with Y had his parents’ house with Z and W.[20] 

   [19] Affidavit of Mr Thompson, filed 6 February 2019, [31].

   [20] Affidavit of Mr Thompson, filed 6 February 2019, [31].

8. The Mother says that on 20 August 2016, after Y had been at her cousin’s birthday party with the Father, the Mother noticed that Y had discharge in her underwear.[21] 

   [21] Affidavit of Ms Booker, filed 17 June 2019, [52].

9. The Mother says that in October 2016, Y made a further disclosure of sexual abuse.[22]  The Mother says that while reading a book Y said “Only daddies show their doodles, not pops.”  The Mother asked Y what she meant by this, to which Y replied “Daddy was sitting in the bathroom and showed me is doodle”.  The Mother then asked when this happened, to which Y replied “At Z’s birthday party, Daddy asked me to come into the toilet.  He was sitting there and showed me his doodle.”  Z’s birthday party was in 2016.

   [22] Affidavit of Ms Booker, filed 17 June 2019, [58].

10. The Mother says that she did not fully believe what Y was saying so she asked Y what it looked like.[23]  The Mother says that Y “held her finger upright down near her vagina and said “It was straight and had a hole in the top where wee comes out””.

    [23] Affidavit of Ms Booker, filed 17 June 2019, [58].

11. The Mother says that following the October 2016 disclosure, she contacted the Family DV Centre about the incident.[24]  The Mother says she was then referred to the Department of Child Services (DOCS) and that she reported Y’s disclosure to DOCS.  The Mother says that DOCS referred her to the City L Police Department Child Protection Investigation Unit.[25]  The Mother then booked an interview for Y.

    [24] Affidavit of Ms Booker, filed 17 June 2019, [62].

    [25] Affidavit of Ms Booker, filed 17 June 2019, [63].

12. Y was interviewed by the police on 26 October 2016.  Y did not describe any sexual abuse by her Father.  Contrary to what Y has been alleged to have described outside of the police interview she denied that anyone had ever touched her vagina, denied ever seeing a "doodle", denied ever being asked to touch a "doodle" and denied being touched on her bottom, although she said that her mother had dried her when she was a baby.  Y denied ever having a sore vagina although she said that it was sometimes it was itchy on the outside and that she would tell her mother about this.  Y also denied ever being asked to keep a secret.

13. The Mother says that while Y did not disclose the sexual abuse during the interview, during the car ride home Y said “I should have told them what Daddy did.”[26]

    [26] Affidavit of Ms Booker, filed 17 June 2019, [65].

14. The Father denies having sexually abused Y and denies being unclothed around Y.[27]  The Father says that Z’s birthday party was the day that Y kept scratching her vagina.[28]  The Father says “I called [Ms Booker] to inform her.  She said it was itchy.”  The Mother says that the Father said this to her on a different date.[29]

    [27] Affidavit of Mr Thompson, filed 6 February 2019, [32]-[33].

    [28] Affidavit of Mr Thompson, filed 6 February 2019, [32].

    [29] Affidavit of Ms Booker, filed 17 June 2019, [61].

15. The Father denies that he has ever shown Y his “doodle”.[30]  The Father says that the way the Mother describes this event is different to what the police asked him about in his interview.

    [30] Affidavit of Mr Thompson, filed 6 February 2019, [33].

16. The Mother says that in February 2017 Y made a further disclosure of sexual abuse.[31]  The Mother says that Y “randomly” said “Daddy tickled my vagina.”  The Mother says she then asked Y if she would like to tell her more, Y then said “Daddy touched my vagina”.[32]  The Mother asked if this was “a good touch or a bad touch” to which Y replied “it was a bad touch.”[33]

    [31] Affidavit of Ms Booker, filed 17 June 2019, [70].

    [32] Affidavit of Ms Booker, filed 17 June 2019, [71].

    [33] Affidavit of Ms Booker, filed 17 June 2019, [72].

17. The Father denies having sexually abused Y.[34]  The Father says that he did help Y wipe her leg after she had been to the toilet and had urine down her leg.[35]  The Father says that he “cleaned it from the inside top part of Y’s leg.”  The Father says he did this because he did not want Y running around with wet patches on her clothing.

    [34] Affidavit of Mr Thompson, filed 6 February 2019, [34].

    [35] Affidavit of Mr Thompson, filed 6 February 2019, [34].

18. The Father says that around February 2017, he was interviewed by the police.[36]  The Father says that at no time after this has he received any communication/correspondence from the police.

    [36] Affidavit of Mr Thompson, filed 6 February 2019, [22].

19. The Mother says that in July 2018, after she and Y had moved to NSW, Y asked the Mother to take down the spot (a mark on the wall representing Y’s “naughty corner”).[37]  When the Mother asked why Y wanted this, Y responded “It reminds me of when Daddy used to touch my private parts.”  The Mother then asked “What do you mean”, to which Y replied “Daddy used to touch my vagina when I was naughty he was naughty!”

    [37] Affidavit of Ms Booker, filed 17 June 2019, [88].

20. The Father denies having touched Y’s private parts.[38]  The Father says that this conversation between the Mother and Y occurred “some 18 months after [Ms Booker] and Y had moved interstate and he was having practically no contact since February 2017.”

    [38] Affidavit of Mr Thompson, filed 6 February 2019, [35].

What the parties sought

1. The Mother sought that the Father continue to be prohibited from spending time with Y, and sole parental responsibility to be vested in her.

2. The Father sought that he be allowed to spend supervised time with Y.  The Father sought unsupervised time if the Court deemed it appropriate.  The Father sought no order as to parental responsibility.

3. The Father also sought electronic communication with Y.  The Father sought private phone conversations with Y.  If the Court deemed this to be inappropriate, the Father sought that the phone conversations be recorded and take place on speaker phone.

4. The Independent Children’s Lawyer (“ICL”) supported the Father’s application to spend supervised time with Y, citing that the risk of Y never developing a relationship with her Father outweighs any risks associated with the proposed supervised contact.  The ICL did not support the Father’s proposal for private phone contact with Y.   

Admissibility of the Dr F Report

1. Dr F, a psychologist, has been engaged as Y’s therapist.  The Mother sought to tender a report from Dr F.

2. Objection was taken to Dr F’s report, with the ruling reserved to the delivery of judgment.  A number of the criticisms that were made of the report ultimately went to questions of weight rather than questions of admissibility.  For example, in her report, Dr F did not identify with precision when she saw Y across the period of their consultations or what occurred in particular consultations with respect to disclosures alleged to have been made by Y.  It was not necessary (in terms of relevance) to identify precisely when particular comments were made by Y, although the lack of such description may impact the weight to be given to those comments.

3. Further criticism was made as to the potential conflict between what was recorded by Dr F regarding the reports of sexual abuse, and what is currently asserted by the Mother.  If such inconsistencies are shown, they may undermine the weight to be given to either Dr F’s report or to the Mother’s evidence (as they may identify inconsistencies in the Mother’s reporting).  They do not, as currently identified, go to the question of the admission of the report.

4. Of particular importance was whether Dr F’s opinion that Y would be traumatised by spending time with her Father should be admitted.

5. In Lane v Nichols the Full Court observed, regarding opinion evidence in child related proceedings, that;

   Whilst s 69ZT(1) of the Act excludes the applicability of certain provisions of the Evidence Act 1995 (Cth) (“the EA”) to child-related proceedings (unless under s 69ZT(3) the Court decides to apply them); and Part 3.3 of the EA dealing with opinion evidence is one of the parts so excluded; s 69ZT(2) draws emphasis to the weight to be applied to evidence admitted as a consequence of, inter alia, Part 3.3 of the EA not applying.

   More fundamentally, s 69ZT(1) does not exclude s 55 of the EA containing the statutory definition of relevant evidence. Section 55(1) provides:

   The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[39]

   [39]Lane v Nichols [2016] FamCAFC 234, [39]-[40].

1. Unlike in Lane v Nichols, and appropriately here, no issue was taken as to Dr F’s expertise to offer such an opinion.  Rather, Dr F holds appropriate professional qualifications and experience as a psychologist and the opinion comes in the context of Dr F being Y’s treating practitioner.  

2. What lay at the heart of Lane v Nichols however, was that, absent any particularity of the information relied upon to form the opinion (which coincidentally related to the risk of traumatisation of a child on exposure to her father as an alleged sexual abuser), and absent demonstration of the scientific or intellectual basis of the opinions or how they were reached, the “expressions of opinion (were) ‘incapable of affecting the assessment of the probability of the existence of any fact in issue in the proceedings.’”

3. The question then is whether there is sufficient identification of the underlying facts, explanation of how the opinion was arrived at and connection to Dr F’s expertise to make the assertion relevant.  That is, was there a substance to the evidence that rendered a fact in issue (Y’s potential trauma at re-exposure to her Father) more probable if that evidence was to be accepted?

4. In answering that question, the first observation is that Dr F does not set out directly how she came to the conclusion regarding trauma.

5. Dr F recites the history that she was given by the Mother.  She also describes her clinical observations during therapy with Y.  This included, during the third session, what Dr F described as a disclosure of sexual abuse by Y, being that the Father had touched her on the vagina and bottom.  It should be immediately observed that parents do touch their children on their private areas without such being a necessary indicator of sexual abuse.  It will likely be a live issue at trial whether Y’s description to Dr F is of abuse or of something benign.

6. Dr F also records discussing with Y her anxiety about telephone calls with the Father.  She describes that Y became more and more comfortable about discussing the “abuse by her father” (without any description of such discussions) but then said that she did not want to discuss it anymore.  The sessions were then brought to an end.  Dr F also describes Y as gradually feeling “safer” since the move away from City L where the parties previously lived, although does not describe how this conclusion was formed.

7. Dr F also formed the view that the assertions of sexual abuse were genuine, giving a list of reasons why that conclusion was drawn.

8. It should be observed that even where the strictness of the opinion rule applies in proceedings, admission of evidence does not necessarily require a detailed setting out of the circumstances of the formation of the opinion.  Although, in the context of the application of the opinion rule, the High Court’s observations in Dasreef v Hawchar about meeting the obligations of the opinion rule (and by necessary inference, the relevance rule) pragmatically included the following:

   The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion  is  “wholly  or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and  experience, and has identified the subject matter about which the opinion  is proffered.[40]

   [40] Dasreef v Hawchar [2011] HCA 21, [37].

9. That is, whether an opinion is sufficiently set out to meet the relevance and opinion rules is partly a question of context. 

10. In the absence of setting out specifically how Dr F arrived at her conclusion, the context in this case is the combination of Dr F’s observations of Y, discussions regarding the telephone calls, discussions of alleged incidents of abuse, in the context of her expertise, that means that Dr F’s assertion as to potential trauma is relevant as an expression of expertise based on those matters, in the manner described in Dasreef.  It is therefore admissible as relevant.

11. However, in determining whether to assign weight to the assertion of trauma, it will be necessary to consider the limited information brought to bear on that issue by Dr F.  Dr F does not directly reference why she concludes that there is a risk of traumatisation.  She references no trauma on Y’s part in discussing what is said to be sexual abuse, nor to anything more than anxiety regarding telephone calls.  No description as to degree of anxiety is given. Even in the context of these interim proceedings there should be caution before applying any significant weight to such an expression of opinion.

Approach to this case

1. The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“Family Law Act”), the best interests of Y. What is in Y’s best interests is to be determined on consideration of the matters set out at s 60CC of the Family Law Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.

2. In order to determine what is in a child’s best interests, the court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. Where they are relevant, the structure of s 60CC gives greater importance amongst the considerations to the primary considerations,[41] although it should be observed that in many cases the primary considerations absorb much of the ground covered by the additional considerations. The two primary considerations focus, respectively, upon the benefit to the children of a meaningful relationship with both parents, and the need to protect the children from harm (from being subjected to abuse, neglect or family violence). Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.

   [41]Marsden & Winch (No 3) (2007) FamCA 1364, [77] – [78].

3. It is the primary considerations that are dominant in these interim proceedings.  That is, the essence of the contest between the parties is of the benefits of meaningful relationship to Y that may come from supervised time with her Father as against the risk of harm posed to Y by possible trauma from such exposure to her Father if she has been sexually abused by him.

4. In giving weight to those matters, within the context of a more general consideration of all the section 60CC considerations, it must be observed that there are significant limitations imposed by the interim nature of these proceedings. A trial court is compelled to both consider risk and to consider the limitations posed by interim proceedings, as was identified in W K Cao & Cao where Austin J, sitting as the full Court, noted as follows:

   Her Honour properly understood she may not be able to make findings of fact about the incident, because the evidence was controversial and was untested, but she still needed to adopt a cautious approach. Her Honour said (at [121]):

   …Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made…It is the existence and the magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made…

   The primary judge was correct to be wary. Serious allegations cannot be disregarded just because the evidence is controversial and factual findings cannot ordinarily be made during an interim hearing. The court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the orders which meet the children’s best interests (see Salah &Salah (2016) FLC 93-713 at [33]-[45]; Eaby &Speelman (2015) FLC 93-654 at [18]-[19]; Whitby &Zeller (No.2) [2014] FamCAFC 239 at [63], [71]).

   Her Honour knew “a risk assessment exercise” was at hand and she was “oblig[ed] to ameliorate the risk in the best manner possible” (at [112]). Her Honour also correctly acknowledged that “[r]isk assessment is not an exact science” (at [115]).[42]

   [42]W K Cao & Cao [2018] FLC 93-880, [27]-[29].

5. The interim context of these proceedings places limitations on the manner of consideration of the primary considerations.

6. Each of the primary considerations is redolent with uncertainty that is not able to be resolved in the untested environment of an interim hearing.  It is uncertain whether there has been sexual abuse of Y, and accordingly whether trauma might follow Y spending time with her Father (the supervised nature of the time that he seeks with Y mitigating the risk of actual abuse occurring).  It is uncertain what the extent might be of the benefits of Y spending time with her Father, given the time that has passed since she last spent time with him, and the risk of trauma being occasioned to her.  It is uncertain whether the failure to make orders for Y to spend time with her Father on an interim basis will result in there being no future relationship with the Father regardless of the result of the final hearing in dealing with whether there is a sexual risk.

7. A further consideration urged upon the court by the Father was the consideration of the impact upon the proceedings which would be occasioned by Y not spending any time with the Father pending final hearing. That is, it was suggested that a better picture of the nature of the relationship between Y and her Father and the benefits of such relationship would be available at the final hearing if Y is able to spend time with the Father in the lead up to that hearing. It may be considered that better evidence as to what if any benefits may flow from the future relationship between Y and her Father leads to orders that more closely reflect Y’s best interests. Absent the identification of any authority to the contrary, this appears to be a matter that falls within s 60CC(3)(m).

8. A number of observations may be made about the potential of a sexualised risk or a trauma risk to Y.  The first is that if Y has made statements that are reported of her to the Mother and to Dr F, they may, but do not necessarily, support a finding of sexual dealing with Y.  While Dr F offers the opinion that the disclosures are “highly plausible”, the factors that she relies upon do not necessarily point in one direction only.  Further, Dr F’s opinion is offered in the absence of any contact with or assessment of the Father.

9. Against these disclosures the interview of Y by the police points against a sexual dealing by the Father.  In considering this, it should be borne in mind that there may be reasons, other than an absence of matters to disclose, why Y would not make disclosures to the police.  Dr F has identified some of these.

10. The Father denies any sexualised dealing with Y, and it appears that it may be the case that he had only limited opportunity to have done so in any event. 

11. Whether there is a risk of sexual abuse founded upon these disclosures is a matter of great uncertainty, particularly in these interim proceedings.  To the extent that there may be such a risk, it would be adequately catered for by supervised time as proposed by the Father and as supported by the ICL.

12. This still leaves open the question of whether or not Y may be traumatised by contact with her Father.  The parties predicated this notion as reliant upon the question as to whether or not there had been sexual abuse of Y which, in itself, is a matter of significant uncertainty.

13. The Mother relied upon Dr F’s opinion that face to face contact would be very distressing and will traumatise Y.  As noted above, while this may be the case, the absence of concrete reasoning being disclosed by Dr F means that this opinion should not be granted significant weight at this stage of the litigation.

14. While it was said that Y becomes anxious before a call from the Father, there was no description suggestive that Y’s state of mind in relation to her Father is such as would lead to traumatisation.  It may also be thought that, in the context of professional supervision, it is unlikely that the Father would engage in any behaviour likely to traumatise Y.  The position is that there is an absence of weight-bearing evidence to suggest that Y would be traumatised by the mere fact of contact, and the arrangements proposed for the time are such as to negative a risk that something would happen during the time with Y that would cause her trauma.

15. Y is now in a position where she is seven years old, but has not seen her Father for approximately three years.  In the ordinary course of litigation this is a matter that is unlikely to come on for final hearing for some period between one and three years from now.  There is a risk that if Y spends no time with the father pending hearing that there will be little if any underlying relationship left by the time the matter is finalised.  This leaves Y at clear risk of the loss of meaningful relationship with the Father and any medium to long-term benefits that may come from such relationship.  Even at the interim stage of these proceedings that is a risk to which significance ought to be attached.

16. That is a risk which, given the safeguard of professional supervision, outweighs the other risks that have been identified. It does so without resort to the s 60CC(3)(m) consideration raised on behalf of the Father.

17. While the question of practicality was raised by the Mother, noting a travelling time for approximately an hour each way and the Mother being late in her pregnancy, these do not sufficiently detract from the practicability of supervision in the general terms proposed by the Father.  The relatively low frequency of visits (multiple short visits in a cluster each six weeks) and the Mother’s apparent access to practical support from her family members notwithstanding that the arrangement may cause her some difficulties, they are far from insurmountable.  However, there ought to be some amelioration of the practical difficulties that would be occasioned by three trips in three days.

18. Turning then to the orders sought by the parties, the first question that arises is as to parental responsibility.  The Father seeks no order as to parental responsibility.  The presumption in favour of equally shared parental responsibility is rendered inapplicable by the allegations and evidence presented in the case.  The parties did not make submissions addressing allocation of parental responsibility.  However, it may be observed that, at present, the Father is unaware of where Y lives or what school she attends.  By his affidavit material the Father indicates a desire to know what is going on in Y’s life, for example, in relation to her schooling.  The Mother is resistant to him knowing these details, alleging a history of heavy drinking, violence and stalking.  However, the Mother conceded that the Father was “not physically abusive towards me during the relationship or afterwards”.  The Mother’s descriptions of stalking and alcohol abuse did not rise to a level indicative of any current risk posed by the Father so as to justify him not knowing Y’s basic circumstances.

19. It is important to the support of the Father’s ongoing relationship with Y that he have some understanding of her living circumstances, including her schooling.

20. The lack of any understanding of these matters at present, along with an absence of contact with Y for approximately three years means that the Father is not in a good position to exercise parental responsibility.  The difficulties in the relationship between he and the Mother indicates that it would be a difficult position for them to share parental responsibility.  It is appropriate for the Mother, as the sole carer for Y for the last three years, and as the sole repository of current knowledge as to Y, to be the one to exercise parental responsibility and an order will be made to such an effect.

21. However, the Mother will be required to provide the Father with details and relevant authorities to enable him to understand what is going on for Y at school and medically.  These matters are likely to be of assistance to him in fostering an ongoing relationship with Y.

22. Under these circumstances, the consideration pathway set out at s 65DAA does not have application.  Sensibly, neither party suggested that it was appropriate that there be an order for equal time or for substantial and significant time at this stage.

23. Orders should be made, given the above assessment of risks, for Y to spend time with her Father largely in accordance with his proposal and as supported by the ICL. 

24. This leaves open the question of telephone time between Y and her Father.  Given the amount of time will pass between the occasions when Y is able to spend time with the Father it is important that there be some form of regular contact outside of that time.  While the Father sought some privacy, (subject to the court’s view), such an arrangement is not appropriate in the current circumstances.  Such an arrangement is also not supported by the ICL.  An arrangement for electronic communication will be made substantially in the terms of the orders sought by the Father but without provision for privacy.  During the proceedings it was noted that one way of dealing with the communication was for it to be recorded, as may be able to be achieved by communication on a platform such as WhatsApp.  The Father noted that he already anticipates that any communication with Y is recorded.  The Father did not mount any objection to the recording.  The orders will note that the parties should be on notice that the Father’s interactions with Y by electronic communication may be recorded.

25. The matter should then be otherwise adjourned to the Registrar’s list.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 July 2019.

Associate: 

Date:  2 July 2019