TIPTON & SAVEGE

[2019] FCCA 1192

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIPTON & SAVEGE [2019] FCCA 1192

Catchwords:
FAMILY LAW – Parenting – two children aged 6 and 4 – parents substantially agree on appropriate parenting arrangements and have entered into final orders by consent – children to live with Mother and spend regular time with Father – only remaining issue is whether children should be able to come into contact with paternal grandfather during the Father’s time with them and if so then on what conditions – paternal grandfather recently convicted of historical child sexual offences which occurred in early 1980s – consideration of “unacceptable risk” –  whether Father and/or paternal family members could act as supervisors – generally undesirable for family members to act in this role but each case turns on its own facts – court concludes that it is in children’s best interests for some supervised time to occur with paternal grandfather but such time to be limited in scope and subject to strict conditions.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2)(b), 60CC(3), 60CC(3)(b)(ii), 60CC(3)(f)(ii), 60CC(3)(l), 60CC(3)(m), 60B, 60B(2)(b), 64B, 64B(2)(b), 68B and 68B(1)(a)

Cases cited:

Jones v. Dunkel (1959) 101 CLR 298

M & M (1988) FLC 91-979

Harriage & Anor & Harriage & Anor (2010) FamCA 445, unreported (4 June

2010)

N & S & the Separate Representative (1996) FLC 92-655
McCoy v. Wessex (2007) 38 Fam LR 513
Napier v. Hepburn (2006) 36 Fam LR 395
Potter v. Potter (2007) 37 Fam LR 208
Partington v. Cade (No.2) (2010) 42 Fam LR 401

In the Marriage of M & J Bieganski (1993) 16 FamLR 353

Mazorski v. Albright (2007) 37 Fam LR 518

Re Andrew (1996) FLC 92 – 692

R & C (unreported, Full Court, 25 June 1993)

Applicant: MS TIPTON

Respondent: MR SAVEGE

File Number: NCC 2094 of 2016

Judgment of: Judge Betts

Hearing date: 1 March 2019

Date of Last Submission: 1 March 2019

Delivered at: Newcastle

Delivered on: 31 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Wilkinson

Solicitors for the Applicant: Craney Family Solicitors

ORDERS

1. Orders 20 and 21 of the Orders of 13 December 2017 are discharged.

2. Pursuant to Section 68B of the Family Law Act, for the personal protection of the children [X] born … 2013 and [Y] born … 2014, the Father is restrained by injunction from permitting either of the children to have any contact with the paternal grandfather Mr A Savege born … 1961 (“the paternal grandfather”) except as strictly provided for in Orders (3) and (4) herein.

3. The Father may allow the children to spend time with the paternal grandfather:

   (a)In odd-numbered years:

   (i)from 10:00am until 2:00pm on Good Friday, Easter Saturday and Easter Sunday;

   (ii)from 2:00pm until 5:00pm on Christmas Eve and from 9:00am until 1:00pm on Christmas Day;

   (iii)on the children’s birthdays, and if Order 8.3.1(a)(i) of the Orders of 13 December 2018 applies, then from 5.00pm until 7.00pm on the day immediately prior to the relevant birthday;

   (iv)on the children’s birthdays, and if Order 8.3.1(a)(ii) applies, then from 3.00pm until 7.00pm on the day immediately prior to the relevant birthday;

   (b)In even-numbered years:

   (i)from 3:00pm until 7:00pm on Christmas Day and from 8:00am until 10:30am on Boxing Day;

   (ii)from 10:00am until 2:00pm Easter Sunday and Easter Monday;

   (iii)on the children’s birthdays, and if Order 8.3.2(b)(i) of the Orders of 13 December 2018 applies, then from 5.00pm until 7.00pm on the day immediately prior to the relevant birthday;

   (iv)on the children’s birthdays, and if Order 8.3.2(b)(ii) of the Orders of 13 December 2018 applies, then from 3.00pm until 7.00pm on the day immediately prior to the relevant birthday;

   (c)On the Father’s birthday, from 4:00pm until 7:00pm if either child has to attend school and from 10:00am until 2:00pm if neither child has to attend school;

   (d)On Father’s Day from 10:00am until 2:00pm;

   (e)For a period of up to four (4) hours to celebrate the birthday of the Father’s daughter [B], provided that the time occurs during a period when the Father already has the children in accordance with the Orders of 13 December 2017.

4. That at all times when the children are in the company of the paternal grandfather pursuant to Order (3) herein, the Father is to abide by the following injunctions for the personal protection of the children pursuant to s.68B of the Family Law Act:

   (a)the Father is not to consume alcohol, or to be in any way affected by alcohol;

   (b)the Father is to ensure that no other adults who are present consume alcohol, or are in any way affected by alcohol;

   (c)under no circumstances is the Father to permit the paternal grandfather to be involved in any of the following activities (“the prohibited activities”):

   (i)assisting with toileting either of the children;

   (ii)assisting with changing either of the children;

   (iii)assisting with bathing either of the children.

   (d)the Father is to personally supervise all interactions between the paternal grandfather and the children to the maximum extent that he is physically able to;

   (e)if the Father is the only adult present, then the paternal grandfather’s supervised time with the children will be limited to a maximum of three (3) hours notwithstanding any other Orders herein.  In this event the Father is not at any time to leave the children alone in the paternal grandfather’s presence;

   (f)if there is at least one (1) other adult member of the paternal family present (a “paternal family member”), then the Father may absent himself for brief periods if necessary (for instance to go to the toilet) but in this event he may only leave the children in the company of that paternal family member if such person has filed an Undertaking in these proceeding, the terms of which are to be:

   A.that they have been provided with a copy of these Orders and that they understand them (the Father being at liberty to provide a copy of these Orders to that person);

   B.that they have been made, or already are, aware of the paternal grandfather’s previous sexual assault convictions and the fact that he is a registered sex offender;

   C.that they will not consume alcohol or be affected by alcohol at any time while in the presence of the paternal grandfather and the children;

   D.that should the Father be absent for any period, they will not during that period permit the paternal grandfather to be left alone with the children at any time;

   E.that they will not permit the paternal grandfather to be involved in any of “the prohibited activities” as that term is defined in Order 4(c)(i), (ii) and (iii) herein;

   F.that they will immediately notify the Father if they consider that the paternal grandfather is behaving in an inappropriate manner towards the children.

5. The Father is to promptly provide the Mother with a copy of any Undertakings filed by any paternal family member.

6. Notwithstanding any other Orders, the Mother may appoint any other adult (including herself), to accompany the children while they are having supervised time with the paternal grandfather pursuant to these Orders.  Such appointment by the Mother:

   (a)is to be in writing at least seven (7) days prior to the scheduled visit (which writing may include by text or email);

   (b)is to be acknowledged by the Father in writing within two (2) days of receipt;

   (c)may be made on no more than three (3) occasions per calendar year, and is not to include Father’s Day, the Father’s Birthday or Christmas Day.

7. Within twenty-eight (28) days of the making of these Orders, and prior to any supervised time occurring between the children and the paternal grandfather pursuant to these orders:

   (a)the Independent Children’s Lawyer is to arrange a meeting between himself, the children and a Family Consultant (specifically Family Consultant C if available), so that the Family Consultant and the Independent Children’s Lawyer may explain the orders to them in language that is age appropriate.  Such meeting is to occur at Child Dispute Services, Level 2, Commonwealth Law Courts, 61 Bolton Street, Newcastle;

   (b)for the purposes of the meeting, both parents are to cooperate with all reasonable requests made by the Family Consultant and/or by the Independent Children’s Lawyer, including making the children available for the meeting, and, if considered appropriate by the Family Consultant and the Independent Children’s Lawyer, to participate in the meeting.

8. The court will hear the parties as to any ancillary orders, any costs applications and as to any applications by the Independent Children’s Lawyer to be discharged, NOTING THAT this may be a case in which the court will consider prolonging the involvement of the Independent Children’s Lawyer for a time while the parties settle into the parenting regime provided for herein.

9. Within fourteen (14) days, the Independent Children’s Lawyer is directed to provide a copy of these orders and the reasons for judgment to the Department of Family and Community Services New South Wales and to Commissioner of Police New South Wales.

10. The proceedings are removed from the Active Pending Cases List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2094 of 2016

MS TIPTON

Applicant

And

MR SAVEGE

Respondent

REASONS FOR JUDGMENT

Overview:

1. These are parenting proceedings relating to two (2) young girls:

   (a)[X] born … 2013, who is presently 6 years of age (“[X]”).  [X] is on the autistic spectrum but high-functioning;

   and

   (b)[Y] born … 2014, who is presently 4 years of age (“[Y]”).

2. Final parenting orders were made by consent in these proceedings on 13 December 2017.  Relevantly those orders provide that the parents have equal shared parental responsibility, that the children live with the mother and that they spend substantial and significant time with the Father – varying from time to time in accordance with the Father’s work locality and roster.

3. The only remaining issue between the parents relates to the paternal grandfather - a registered child sex offender. 

4. The Mother seeks an order restraining the Father from allowing the children to have any contact with the paternal grandfather.  Her case is that, going forward, any time the paternal grandfather spends with the children would place them at unacceptable risk of harm.   

5. The Independent Children’s Lawyer (“ICL”) supports the Mother’s position.

6. The Father opposes the imposition of a blanket injunction in relation to the paternal grandfather, who lives relatively close by to him and with whom he maintains a relationship.  The paternal grandfather also maintains a relationship with the Father’s one (1) year old daughter, [B], being the child of the Father’s subsequent failed relationship.  [B]’s mother and the Father have an arrangement whereby [B] is able to spend time with the paternal grandfather provided that another adult is present.  No such flexibility applies to the present children.  The Father’s extended family is thus “split” to some extent.

7. Essentially, the Father wants to be able to facilitate some contact between these children and the paternal grandfather going forward. His case is that he will accept whatever time the court considers appropriate to occur between the children and the paternal grandfather, and on whatever conditions the court considers necessary for the children’s protection.  To use the colloquial, he comes to the court “cap in hand” seeking whatever orders will enable the maintenance of some sort of relationship between the children and the paternal grandfather. 

8. I should also record here that supervised contact at a contact centre is not an option in this case - the paternal grandfather’s child sex convictions render him ineligible to utilise such a service.  The Father’s case was therefore conducted on the basis that he and/or other family members would effectively have to act as supervisors for the paternal grandfather if time was permitted to occur.

The trial:

1. The proceedings came on for trial on 1 March 2019.

2. The Mother was represented by Mr Wilkinson of counsel.  The Father represented himself.  The ICL appeared on his own behalf, without counsel. 

3. The Mother relied upon the following evidence:

   (a)her Affidavit filed 15 August 2016, particularly paragraphs 65 through 70, 81 and 95;

   (b)her Affidavit filed 24 February 2017.

4. The Father relied upon the evidence in his Affidavit filed 8 September 2016, particularly paragraphs 49 through 60. 

5. The ICL relied upon the evidence set out in the Child Inclusive Conference Memorandum of Family Consultant C dated 1 June 2017.

6. The Mother’s counsel and the ICL also tendered various subpoenaed records which became exhibits in the proceedings. 

7. The Mother and the ICL had prepared written submissions for the trial. 

8. The Father, probably as a result of being self-represented, had not prepared any written submissions.  However, at the court’s invitation he did tender a handwritten document entitled “Submission by Mr Savege 1/3/2019” which essentially set out the orders that he was seeking.[1]  His orders provided that, whenever the paternal grandfather was spending time with the children:

   ·    that time would be directly supervised by one of the parents;

   ·    no party consume alcohol;

   ·    the paternal grandfather not be involved in showering, bathing, changing or toileting the children;

   ·    there be no overnight visits with the paternal grandfather present.

   [1] Exhibit 1

9. Notably the Father’s proposed orders also included this catch-all:

   “I’m happy to have further conditions enforced if suitable by submission of the ICL or [the Mother] or the court.”

10. As the Applicant, the Mother was to be the first witness.  However, she was not required for cross-examination and thus her affidavit evidence went unchallenged.

11. The Father was the next witness.  With my leave, he gave some brief oral evidence-in-chief, following which he was cross-examined by both the Mother’s counsel and the ICL.

12. The last witness, the Family Consultant, was not required for cross-examination.

13. As the only witness who I saw give evidence was the Father, I would record here that I found his evidence to be honest.  I consider that he is motivated by what he genuinely believes to be the best interests of the children. 

14. Before turning to a consideration of the competing proposals in this case, I make the observation that the Father’s lack of legal representation at trial was unfortunate.  I do not say this disrespectfully of him as in my view he conducted the trial as best he could.  The problem however was that his evidence at trial was lacking.  In particular:

    (a)the Father had not called the paternal grandfather as a witness in his case.  No affidavit had been filed by the paternal grandfather and he was not able to be cross-examined;

    and

    (b)the Father did not provide the court with any evidence as to the paternal grandfather’s rehabilitation or treatment (if any) in relation to his offending. 

15. In closing submissions, these “gaps” in the Father’s case were  highlighted by the ICL. 

16. The Father responded indignantly to that criticism.  He complained that he did not know that he should have called the paternal grandfather as a witness.  He also asserted that the paternal grandfather had apparently been assessed by a psychologist (or by some other appropriately qualified expert) as being a “low risk” of sexually re-offending.  He submitted that, rather than the ICL criticising his running of the case, the ICL should instead have played a more active role in evidence-gathering before the matter got to trial.

17. I accept the Father’s genuineness; he likely saw these proceedings as being more inquisitorial than adversarial in nature.  I accept that he did not know that he should have called the paternal grandfather as a witness or that he should have provided evidence to the court as to the paternal grandfather’s rehabilitation.  

18. In failing to call the paternal grandfather as a witness, I do not infer that the Father was acting “tactically” in an endeavour to withhold relevant evidence.  I do not draw a Jones v. Dunkel inference against the Father.[2]

    [2] (1959) 101 CLR 298

19. Likewise, I cannot infer that the paternal grandfather’s evidence would have positively assisted the Father’s case either. 

20. In the end the Father has to be responsible for the running of his own case.  The evidential “gaps” in his case must inevitably limit the court’s capacity to assess future risk of harm to the children in circumstances where the court is obliged to act protectively.

The Law:

1. These are parenting proceedings conducted pursuant to the provisions of Part VII of the Family Law Act 1975 (“the Act”).   

2. However, although these are parenting proceedings the only orders being sought by the Mother and the ICL are injunctions pursuant to s.68B(1)(a) of the Act. This section relevantly empowers the court in parenting proceedings to make such order or grant such injunction “as it considers appropriate for the welfare of the child[ren] including… an injunction for the personal protection of the child[ren].” 

3. A “parenting order” is statutorily defined in s.64B of the Act and in my view an injunction pursuant to s.68B falls outside that definition. Thus, although these are parenting proceedings the Mother and the ICL are not in fact seeking a “parenting order”.

4. The Father does seek an order that the children spend time with the paternal grandfather.  In my view such an order is a “parenting order” as defined in s.64B(2)(b). That said, the Father’s proposal is also conditioned upon the making of s.68B injunctions.

5. When making a “parenting order” as contended for by the Father, the court is required to regard the best interests of the children as the paramount consideration: s.60CA. The relevant mandatory “best interests” considerations for the court are prescribed in s.60CC.

6. One of the so-called “primary considerations” for the court in s.60CC(2)(b) is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse…”.  The term “abuse” includes involving the child in a sexual activity in which the child is used as a sexual object and where there is unequal power as between the child and the abuser.[3] 

   [3] Paraphrasing from the statutory definition in s.4 of the Act

7. In my view, insofar as s.60CC addresses questions of “risk”, it needs to be read conformably with the court’s injunctive power in s.68B. The two provisions sit together and form part of a broader framework for the making of orders pursuant to Part VII of the Act.

8. Whether “best interests” are, or are not, strictly the paramount consideration when considering a s.68B injunction, “best interests” must nonetheless remain highly significant to the injunctive power. In practical terms, if the court considers it to be in the best interests of these children to maintain some form of contact with the paternal grandfather - albeit subject to conditions to ensure the children’s safety - then it is difficult to see how the court could equally find an absolute injunction to be “appropriate for the welfare of the child[ren]”. [4]

   [4] This phrase is taken from s.68B

9. In these Reasons, I therefore propose to focus upon the “best interests” considerations set out in s.60CC while remaining mindful of s.68B.

Benefits to maintaining some form of relationship between the children and the paternal grandfather:

1. The Act expressly recognises the role of grandparents in the lives of children. The objects and principles of Part VII of the Act are set out in s.60B and one of the principles underlying the objects is that children have a right to spend time and communicate regularly with people significant to their care, welfare and development – specifically including grandparents.[5] 

   [5] Section 60B(2)(b) of the Act

1. Both parents could see a benefit to the children in having a relationship with the paternal grandfather in this case - prior to him being charged in June 2016.  Up until then the paternal grandfather had regularly spent time with the children, including babysitting them.  The Mother’s own evidence is that the children (and also the Mother herself) had “a great relationship” with the paternal grandfather.[6]

   [6] See s.60CC(3)(b)(ii). This evidence is taken from the Mother’s affidavit filed 15.08.16, paragraph 68.

2. I accept the Father’s evidence that their older daughter [X] in particular used to have a very close bond with the paternal grandfather.  It is likely that a bond still remains between them now, albeit diminished over the past three (3) years or so.[7]  I am not satisfied that [Y] presently has any recollection of the paternal grandfather given the passage of time.  It was nonetheless common ground that whatever orders were made should apply equally to both children.

   [7] See s.60CC(3)(b)(ii).

3. Provided it does not expose them to unacceptable risk, in my view the children would obviously benefit from the opportunity to have some interaction with the paternal grandfather.  He is a part of their heritage, their sense of identity.  Amongst other things the paternal grandfather could for instance tell the children stories about the Father when he was their age, and about their family experiences.[8] 

   [8] See s.60CC(3)(f)(ii), s.60CC(3)(m)

4. Involvement of the paternal grandfather also means that the whole of the Father’s family can come together on occasions.  Notably this could potentially include family events such as birthdays, Christmases and the like.[9] 

   [9] See s.60CC(3)(f)(ii), s.60CC(3)(m)

5. In reality, there are many potential benefits in the children being able to have some form of relationship with the paternal grandfather.  To be fair, I do not understand the Mother’s or the ICL’s case to take issue with that general proposition.  Rather, their case is that any ongoing contact places the children at unacceptable risk of harm, such that any potential benefits fall away.

Assessment of the paternal grandfather’s behaviour said to give rise to unacceptable risk:

The paternal grandfather’s historical offending:

1. On 22 September 2015, the paternal grandfather’s cousin (“the victim”) made a complaint to Police that she had been sexually assaulted by the paternal grandfather when she was a child in the late 1970s and early 1980s.  The victim told them that she had recently reconnected with another female cousin who, when they were discussing their childhoods, disclosed that she too had been a victim of his sexually abusive behaviour.  This disclosure to the victim, coupled with the victim’s concern that the paternal grandfather could potentially continue to offend against other family members, is what prompted the victim to finally come forward to Police.[10]

   [10] See exhibit 5 - the report made by the victim to Region D Police on 22/09/15

2. The victim told Police that the paternal grandfather had offended against her on more than twenty (20) occasions between around December 1979 and December 1982 when she was between around twelve (12) and fifteen (15) years of age and the paternal grandfather was between eighteen (18) and twenty-one (21) years of age.  She said that the abuse occurred in a family setting, in the home of the paternal grandfather’s parents – being the victim’s aunt and uncle.  On occasions when the victim was staying there while her parents were at work, the paternal grandfather took opportunities – and at time positively created opportunities – to be alone with the victim during which times he would put his hand under her top and rub her breasts.  This involved varying degrees of force. The victim felt violated and upset; though only twelve (12) she had gone through early puberty and had developed breasts early.

3. The victim told Police that the paternal grandfather continued this behaviour against her notwithstanding that at one stage he entered into a serious relationship.  She said that the abuse only stopped when she got older and was no longer being sent to stay at the aunt and uncle’s home, ie. when the paternal grandfather no longer had access to her anymore.

4. In April 2016 at the instigation of Police and pursuant to a warrant permitting covert recording, the victim staged a meeting with the paternal grandfather in a public place.  She raised these matters with him, and he admitted that the incidents had played on his mind over the years and that he knew his actions were wrong.  He told her he was glad it “never went any further than touching” and that he had been “fucking stupid” in doing what he did.  He did however seem to minimise his actions to some extent, telling her that he felt the pair had been “drawn to each other” at a difficult time in their respective lives.  He reasoned that he was perhaps “looking for a bit of love” and that his actions were just “comfort of something”.

5. Police later arranged to meet with the paternal grandfather on 2 June 2016, at which time he agreed to be interviewed.  During the interview he made frank admissions to the majority of what was alleged - although he could not remember some things given the passage of time. He did however agree that he had touched the victim on the breasts on a number of occasions when she was aged between twelve (12) and fifteen (15) years of age and when he was between the ages of about seventeen (17) and twenty (20).[11]

   [11] See exhibit 6, being the agreed facts for sentence in Court E

6. The charges were finalised a little over two (2) years later on … 2018 at which time the paternal grandfather pleaded guilty in Court E at Newcastle to just four (4) counts of indecent assault upon the victim at a time when she was under the age of sixteen (16) years.  The offences to which he pleaded were all committed in the year 1980 when the paternal grandfather was eighteen (18) years old and the victim was twelve (12).

7. The agreed facts in respect of each count were that he forcibly placed his hand underneath the victim’s pyjama top and fondled her breasts against her will. 

8. Court E sentenced the paternal grandfather to an overall term of one (1) year and six (6) months imprisonment, with a non-parole period of six (6) months.

9. One issue that was argued before me at trial was whether the abuse actually perpetrated by the paternal grandfather upon the victim was more extensive than that to which he ultimately pleaded.  The victim clearly told Police that the offending behaviour towards her occurred over a longer period, and the paternal grandfather admitted as much to Police.

Did the paternal grandfather historically abuse his other unnamed cousin as well?

1. Moreover, the victim’s unnamed cousin may also have been a victim of similar behaviour from the paternal grandfather – although that person’s details are undisclosed, as are the details of the alleged abuse.  Obviously I cannot assess that evidence in any way; it is at best “second hand hearsay”.  But equally I do not think that I can completely discount it either – particularly given the paternal grandfather’s behaviour towards the victim over a (presumably similar) timeframe.  It is hardly stretching credulity to think that he may have offended against this other family member.

December 2016 allegations against the paternal grandfather relating specifically to [X]:

1. The Mother gives evidence that on 14 December 2016 [12] the child [X] made a disturbing disclosure to her about:

   (a)her “poppy with a beard” picking her up from pre-school instead of the Father;

   and

   (b)that [X] said she went to “nanny’s house” and had sleepovers there. According to the Mother, [X] told her that “I have sleep overs with poppy and I see him wear no undies, he sleeps in my bed with no undies.” [X] also said “I see poppy without any clothes or undies…he doesn’t put any clothes on”. 

   [12] Mother’s affidavit of 23.02.17 states that [X] told her these things “on or around” 14.12.16; but exhibit 4 (page 7) indicates that when the Mother took [X] to the Police on 14.12.16 the Mother told Police that [X] had said these things on 13.12.16.  The latter, being contemporaneous, is more likely to be accurate

2. To be clear, the Mother understood “poppy with a beard” to be a reference to the paternal grandfather and “nanny” to be his de facto partner.

3. The disclosure is relevant to risk in two (2) contexts.  Firstly, there was an absolute injunction in place at that time prohibiting any contact between the paternal grandfather and the children.  The second aspect is the child’s reference to the paternal grandfather being naked in the child’s presence including in her bed.

4. The Mother was naturally concerned about what [X] said.  She recorded [X]’s statements and she took [X] for an interview with Police.  Police listened to the recording and considered that the allegations were credible.  That said, there had been no changes to [X]’s behaviour, nor did she say she was suffering pain or discomfort to any part of her body.

5. The Department of Families and Communities (NSW) were notified but took no positive action given that the Mother had at that time decided to suspend the Father’s time pending further Police investigation. 

6. The Police investigation did not result in any criminal charges.  [X] was only three (3) years old at the time and her Police interview yielded nothing of benefit to Police. 

7. The Father assured the Mother that he had not breached the injunction and the day-care centre could not otherwise assist as to pick-up and drop-off information due to recent changes to their “sign-in” sheet system.

8. At trial, the Father vehemently denied breaching the injunction; he denied that [X] had had any contact with the paternal grandfather since the sexual abuse allegations were first made in June 2016.  I accept the Father’s evidence.

9. But while I dismiss [X]’s December 2016 “disclosures” in relation to the timing of the alleged events, I cannot exclude the possibility that [X] was speaking about earlier lived experiences at a time when she used to regularly spend unsupervised time with the paternal grandfather prior to June 2016. 

10. If so, then the paternal grandfather’s behaviour could be of real concern.  Normalising his nakedness around the child, or sleeping in her bed naked, could potentially be the beginning of grooming behaviour, or a precursor to same.  I hasten to add that this is obviously the “worst case” scenario and based upon the words of a very young child.  It is possible that [X]’s statements were fantasy or were otherwise unreliable.  It is possible that if the fuller and more accurate context was available that the paternal grandfather’s actions may have been explicable on some other innocuous basis.

11. The Mother seems to have been somewhat “torn” in relation to this particular aspect of the matter.  On 1 June 2017, some six (6) months or so after [X]’s “disclosures” to her, the Mother participated in a Child Inclusive Conference - at which the Family Consultant recorded that it was common ground between the parents that the paternal grandfather had never acted inappropriately towards the children.[13] 

    [13] CIC Memorandum, page 2, first bullet point

12. At trial the Mother’s counsel nonetheless submitted that it was a “disclosure” that the court needed to take into consideration in assessing risk.

13. At trial, far and away the major risk issue that was agitated by the Mother and by the ICL was in respect of the paternal grandfather’s historical sexual offending against the victim.  This was the way in which the case was run.  In terms of [X]’s “disclosures”, the main focus of the Mother and of the ICL was that they were said to demonstrate that the Father had breached the “no contact” injunction, so that by extension he could not be relied upon to comply with a future injunction.

14. In the end, I confess that I have found [X]’s December 2016 statements particularly difficult to assess in terms of risk.  The form of the evidence and the child’s age provide a relatively “thin” evidential foundation.  But on an absolute worst-case scenario [X]’s statements may potentially point to [X]’s exposure to past grooming or pre-grooming behaviour.  The statements from [X] came “out of the blue” and were incompatible with how both parents had previously viewed the paternal grandfather as a carer for [X].

15. Weighing up what [X] said is something of a diabolical task for all concerned.  Out of an abundance of caution I must however factor in [X]’s statements as potentially elevating the risk posed by the paternal grandfather.

The “unacceptable risk” test and what it means:

1. These are not of course criminal proceedings.  The paternal grandfather is not on trial.

M & M (1988) FLC 91-979:

1. As the High Court explained in M & M (1988) FLC 91-979, the ultimate issue to be decided in a parenting case is whether the making of the order sought is in the interests of the welfare of the child, or – to adopt the language now used in the Act - in the “best interests” of the child.

2. The High Court held that when allegations of sexual abuse are made against a parent who seeks time with a child, the resolution of such allegations is subservient and ancillary to the court’s determination as to what orders are in the child’s best interests.   The High Court held that the appropriate test to be applied in such circumstances is the “unacceptable risk” test, ie. the court would not make an order that exposes the child to an unacceptable risk of harm.

3. The “unacceptable risk” test has since become settled law in this jurisdiction.  Its flexibility means that the test can be adapted to meet any potential risks posed to a child in a given case – be they risks of sexual, physical, psychological and/or emotional harm.

4. I propose to apply the “unacceptable risk” test in this case.  But the challenge is to give practical expression to that test.

Harridge & Anor & Harridge & Anor [2010] FamCA 445:

1. In this respect, I am assisted by the unreported decision of Murphy J handed down on 4 June 2010 in the matter of Harridge & Anor v. Harridge & Anor [2010] FamCA 445.

2. His Honour therein helpfully reviewed a number of relevant authorities, observing that:

   (a)the question of unacceptable risk directs Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, the facts could be said to raise an unacceptable risk of harm to the child.  The value of the expression is in its direction to judges to consider deeply where the facts of a particular case fall, and to adequately explain their findings in this regard;[14]

   (b)the fulsome discussion by a trial Judge of the component aspects of a finding of unacceptable risk provides a useful platform for the future consideration of the family’s circumstances – including potentially eliminating paths by which a future court might subsequently explore options for change.[15]

   [14] Taken from the judgment of Fogarty J sitting as a member of the Full Court in N & S & the Separate Representative (1996) FLC 92-655, which passage was cited with approval by Brown J in McCoy v. Wessex (2007) 38 Fam LR 513

   [15] Taken from the judgment of Warnick J in Napier v. Hepburn (2006) 36 Fam LR 395, cited with approval by the Full Court in Potter v. Potter (2007) 37 Fam LR 208 and Partington v. Cade (No.2) (2010) 42 Fam LR 401.

3. Put shortly, Murphy J considered it to be extremely important in a parenting case to identify the nature of the risk or risks said to be present, and how - and the extent to which - the identified risk or risks are said to impact on orders reflecting best interests.  His Honour continued:

   “Frequently (I would venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto” consequences for the orders made.  Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components which must, axiomatically, vary according to the circumstances of each case.” [16]

   [16] Taken from paragraph 71 of his Honour’s judgment

4. His Honour went on to quote with approval from an academic paper presented by English author, B Mahendra, a qualified psychiatrist and barrister, entitled “Psychiatric Risk Assessment in Family and Child Law” published in (2008) 38 Family Law 569.  His Honour specifically referred to the following extract from that paper:

   Risk assessment in any situation involves, in essence, the asking of the following questions:

   (1)What harmful outcome is potentially present in this situation?

   (2)What is the probability of this outcome coming about?

   (3)What risks are probable in this situation in the short, medium and long term?

   (4)What are the factors that could increase or decrease the risk that is probable?

   (5)What measures are available whose deployment could mitigate the risks that are probable? [17]

   [17] Paragraphs 72 and 73 of his Honour’s judgment

5. His Honour also quoted with approval from an academic paper presented by the Honourable John Fogarty AM, in which Mr Fogarty referred to risks in life being unavoidable and an inherent part of life.  Mr Fogarty pointed out that risk involves two (2) components – an assessment of likelihood of an occurrence and the possible consequences if it does.  Individuals may focus more on one than on the other of these components.  But at some point the individual must make a judgment of the risk and whether it can/should be taken.  Risks are relative and usually involve trade-offs.  The concept of “unacceptable risk” is all about the courts striking an appropriate balance in the best interests of the child concerned.[18]

Applying the “unacceptable risk” test to the facts of this case:

[18] My summary of Mr Fogarty’s paper as quoted by Murphy J in paragraphs 74 and 75 of the judgment

What potentially harmful outcome is potentially present in this situation?

1. Sexual abuse of children is enormously damaging to their health and wellbeing across a range of dimensions.  The emotional scars that are inflicted upon its victims can be lifelong, leading to a range of adverse impacts throughout their life.  These may include post-traumatic stress, depression, anxiety, an inability to trust others and all manner of relationship difficulties.  Some victims go on to develop personality disorders; others may turn to drugs and alcohol to escape their painful inner world.  Other victims may themselves go on to become offenders, perpetuating this toxic cycle.

2. I proceed on the basis that sexual abuse of either of the children of these proceedings would likely have an enormously damaging effect upon them. 

What is the probability of this outcome coming about?

1. The sexual risk that the paternal grandfather potentially poses to these children is a real one and inherently serious. 

2. When assessing the probability of future harm, an obvious “elephant in the room” is that the offences were historical - occurring upwards of thirty-five (35) years ago.  The only recent concerns about the paternal grandfather arise out of [X]’s statements to the Mother in December 2016 which I have dealt with earlier.  Aside from those statements by [X] there has never been any suggestion of the paternal grandfather behaving in an inappropriately sexual way towards any other person from the early 1980s to now.

3. But equally there is no evidence before me to any rehabilitation or treatment undertaken by the paternal grandfather to address his past offending behaviour.  I have no psychiatric or psychological evidence before me, or any evidence of his attendance at, or completion of, a sex offenders course while he was incarcerated. 

4. I accept in general the Father’s evidence that the paternal grandfather does not want to be sent back to prison and I note that there is no evidence before me of his having breached any of the relevant conditions surrounding his release on parole.

1. But in the end, absent the opportunity to assess the paternal grandfather as a witness, and absent expert evidence as to the likelihood of the paternal grandfather re-offending, the court will proceed on the basis that there remains a genuine probability that the paternal grandfather could sexually harm the children if he maintains contact with them going forward.

What risks are probable in this situation in the short, medium and long term? What are the factors that could increase or decrease the risk that is probable?  What measures are available whose deployment could mitigate the risks that are probable?

1. These questions can conveniently be considered together.

2. In my view, the paternal grandfather poses a sexual risk to the children which needs to be properly addressed in the short term, the medium term and the long term.

3. Deploying a supervisor in respect of any time between the paternal grandfather and the children is absolutely essential.  In the court’s view, effective supervision of the paternal grandfather can adequately and properly protect against the relevant risk. 

4. The Father submits that he can act in that supervisory role.

5. The Father also proposes additional protection being afforded to the children by way of additional injunctions which:

   (a)strictly prohibit some potentially “high risk” interactions occurring as between the paternal grandfather and the children – such as toileting, changing or showering the children;

   (b)strictly prohibit the Father from  consuming alcohol whenever the paternal grandfather is present, or permitting the paternal grandfather to do so;

   (c)limit time with the paternal grandfather to non-overnight time.

6. The Mother and the ICL submit that such protections are inadequate to address the relevant risks; the risks would remain “unacceptable” even if such measures were deployed.

7. The reality is that child sexual abuse ordinarily occurs in a private setting, behind closed doors.  Supervisors who are family members - such as the Father - may not be appropriately vigilant in supervising interactions with the paternal grandfather, particularly in the medium to long term if they become complacent.  There is a risk that, over time, the extent of “family” supervision may become more lax. 

8. A potential lapse in supervision could potentially be exploited by the paternal grandfather, who could in turn sexually harm one or both children.  So goes the argument of the Mother and the ICL, who oppose family members acting as supervisors.  Their concern about “family” supervision is a legitimate one and it derives support from the Full Court.

9. In particular, the ICL referred me to the Full Court’s decision warning against orders for supervision by family members: In the Marriage of M & J Bieganski (1993) 16 Fam LR 353.

10. In Bieganski the trial Judge concluded on the evidence that the father had acted in a sexually inappropriate manner towards both of his young children – but ultimately made orders for the father to have supervised time with them.  The trial Judge appointed the paternal grandmother as principal supervisor, however she rejected any suggestion that the father posed a risk to the children.

11. The mother successfully appealed to the Full Court (Fogarty, Baker & Purvis JJ). 

12. In reversing the trial Judge’s decision, their Honours’ joint judgment affirmed the “unacceptable risk” test.  Their Honours went on to hold that a trial Judge who had made a finding that an unacceptable risk of sexual abuse existed, or that sexual abuse had occurred, should look to the level of trauma in the widest sense that has been occasioned to the child or children, or which may be occasioned in the future, in order to determine whether supervised time with the abusing parent was appropriate.  If there remained an unacceptable risk of physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised time would not be appropriate.

13. Their Honours went on to hold that social science, literature and experience had demonstrated that it was generally inappropriate for friends or relatives to act as supervisors where there was any risk of harm to children.  Their Honours’ rationale was that family and friends are not neutral, but usually had an opinion as to whether any harm had occurred or whether any risk existed.  They may not believe that close monitoring is necessary.  In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. 

14. Their Honours emphasised that supervisors must be available to the children for safety and support and must be prepared to intervene, and that it is unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.

15. Their Honours ultimately concluded that:

    “For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse  occurring”. [19]

    [19] At page 369 of the reported judgment

16. The facts of that particular case can however be distinguished.  In Bieganski, neither of the appointed supervisors accepted that the father had behaved in a sexually inappropriate manner towards the children, or that he posed a relevant risk to the children - contrary to the trial Judge’s findings. 

17. In the present case however, the Father as proposed supervisor accepts that the paternal grandfather is guilty of child sexual abuse against the victim.  He accepts that the children can never be left alone in the paternal grandfather’s company again.

18. I accept the Father’s evidence that as a registered sex offender, the paternal grandfather is now subject to quite stringent conditions and restrictions in his day-to-day life insofar as his freedom of movement, and involvement with children are concerned. 

19. I accept the Father’s evidence that the paternal grandfather is, for a period of fifteen (15) years subject to the following stringent conditions:

    (a)that he have no unsupervised time with any children – at risk of being sent back to prison in the event of a breach;

    (b)that he has to advise Police in relation to any children that he may be in contact with;

    (c)that he cannot drink alcohol when in the company of children;

    (d)that he has to keep Police up-to-date with his contact details at all times, including details of any motor vehicle that he drives.

20. The Father’s description of the paternal grandfather’s life is that he is at risk of immediately being returned to prison if he breaches his parole conditions, including by breaching any of the conditions attaching to him as a registered sex offender.

21. It is against that background that the Father and [B]’s mother have agreed that the paternal grandfather is never to be left unsupervised in [B]’s company.  This arrangement is for [B]’s protection, and also avoids placing the paternal grandfather in breach of his legal obligations and therefore at risk of further imprisonment. 

22. I am satisfied that the Father is anxious both to protect [X] and [Y], and also to avoid any future legal difficulties in relation to the paternal grandfather.  The Father knows what is at stake.  He says that the paternal grandfather does too.

23. The Father certainly accepts that the paternal grandfather poses a risk which needs to be guarded against. 

24. In that respect, and to his credit, the Father has throughout the proceedings consented to interim injunctions that absolutely prohibit contact between the children and the paternal grandfather – injunctions which he abided by notwithstanding the resultant inconvenience and family disappointment occasioned to his family from time to time. 

25. The Father took that position prior to any findings or admissions of guilt by the paternal grandfather.  He consistently acted protectively towards the children throughout the proceedings in what has been a most unfortunate and invidious position to find himself in.

26. That said, I accept the Mother and ICL’s complaint that the Father does not accept the possibility that the paternal grandfather’s offending against the victim may have been more extensive than what he ultimately pleaded guilty to in Court E.  The Father is in that sense somewhat naïve and prefers to remain loyal to the paternal grandfather.  This does potentially elevate the risk of a future lapse in supervision over the longer-term. 

27. Moreover, the Father does not in my view accept the possibility that the paternal grandfather may have behaved inappropriately towards [X] at any earlier time.  That suggestion was very much rejected by him; his evidence (which I accept) was that the paternal grandfather had not been spending time with the child at the time of the disclosure.  He is unaware of any inappropriate behaviour between the paternal grandfather and the children.  I consider that he would not be pressing his application if he genuinely thought that the paternal grandfather had engaged in any inappropriate behaviour towards either of the children.

28. Of course, as time goes by the children will also be growing older.  They will become able to appreciate and understand the limitations of any time they spend with the paternal grandfather.   They will be able to better understand the difference between appropriate an inappropriate behaviour; they will be able to speak up and better protect themselves.  To be clear, I do not want it to be suggested that the children should be responsible for their own protection.  I am merely observing that the passage of time potentially has effects both ways in terms of risk.

29. In his submissions, the Father made it clear that if needs be he will have to be content for the children to have quite limited time with the paternal grandfather going forward.

30. This may be the price that has to be paid for the maintenance of some form of relationship.

31. In my view, circumscribing the available times that can be spent between the paternal grandfather and the children – time that is already to be supervised and subject to specific injunctions – offers the children a layer of additional protection.

32. Circumscribing the paternal grandfather’s time further limits the risk that he poses to the children; yet it also diminishes the potential benefit to the children in maintaining some form of ongoing interaction.  It is this benefit which the court must weigh up in deciding whether the attendant risks are relevantly acceptable or unacceptable in all the circumstances.  This is the balancing act in arriving at a “best interests” determination.

33. Circumscribed opportunities for future interaction between the paternal grandfather and the children can still be “meaningful” to the children and of benefit to them in a wider family context.  A “meaningful” relationship does not purely relate to quantity of time, but rather to the quality of the relationship.[20]

    [20] See Mazorski v. Albright (2007) 37 Fam LR 518

34. I consider that the paternal grandfather’s involvement in the Father’s family-related activities and in other special days involving the Father and all three (3) of his children, may enable a “meaningful” relationship to be fostered - albeit perhaps at the lower end of the “meaningful” scale.  The opportunity for limited interactions of any nature would in my view be beneficial to the children and would also be highly valued by the Father, who would be very eager to ensure that there were no lapses in supervision given the limited opportunities for interaction to occur. 

35. I accept that the Father would comply with any orders for supervision to the best of his ability.

What is the potential adverse impact on the children of the Mother’s fears about them having any contact with the paternal grandfather?

1. Understandably, the Mother has some anxiety.  I am entitled to take her anxiety into account.[21]

   [21] Re Andrew (1996) FLC 92 – 692; R & C (unreported, Full Court, 25 June 1993).

2. The Mother’s anxiety is against the background that she was herself a victim of child sexual abuse.  The Father knows this; he factored her anxiety into his early decision to agree to an absolute injunction.

3. During the Child Inclusive Conference, the Mother told the Family Consultant that even if the paternal grandfather was found not guilty of the offences, it would still take her some time to build trust again and to agree to the children spending time with him.

4. There is however no evidence of any likely serious impact on the Mother’s parenting capacity in the event that supervised time were to occur.  It is not a case where the Mother’s mental health would be likely to suffer, resulting in a diminution of her parenting capacity.  She is a robust person and parent and at trial her counsel made clear that she was not running a case that her parenting would be adversely affected by the making of an order for supervised time.

5. I accept in the short term that the Mother would need to get used to the idea of supervised time occurring. 

Other relevant “additional considerations”:

1. I have taken into account the additional s.60CC(3) considerations. Many of the factual findings that I have made are relevant to one or more of such considerations.

2. I am mindful that the making of Orders which permit supervised time to occur in the future carry with them an greater risk of future litigation than Orders which prohibit time from occurring: s.60CC(3)(l).

Conclusion:

1. The risk argument advanced by the Mother and by the Independent Children’s Lawyer is a real one; protective measures are necessary for the children.

2. But I do not accept that the attendant risks warrant the complete excision of the paternal grandfather from the children’s lives.  Such outcome smacks of a “generalised” finding of risk – and in my view the court is obliged to consider the risk issues more deeply than that.  Most notably, the paternal grandfather’s sexual offending occurred in the late 1970s to early 1980s at a time when he was himself a young adult and prior to the Father’s birth.  I do not say this to minimise or excuse his behaviour but rather to emphasise that the offences were committed a long time ago.

3. Likewise, I reject the blanket submission that the Father cannot act as a supervisor on the basis of Bieganski (supra). That authority laid down an authoritative guideline, not a fixed rule of law. Each case must always turn on its own facts. As the Full Court judgment made clear at page 369, having family or friends supervise “is in most cases undesirable”. 

   (my underlining)

4. In my view the facts of this case are more nuanced. 

5. I consider that orders which afford the opportunity for the children to spend some limited time with the paternal grandfather, subject to family supervision and on strict conditions, is overall in the best interests of the children. 

6. I am satisfied that the Father recognises and accepts that the paternal grandfather committed historical sexual offences.  I accept that the Father is genuinely determined to protect the children from any such risks and I consider that he would act appropriately protectively.

7. The orders which I propose to make would not, in my view, expose the children to “unacceptable risk”.

8. The injunctions I propose to make pursuant to s.68B of the Act are self-explanatory. For instance the supervised time will not on any occasion exceed a maximum period of four (4) hours and there will be no overnight time.

9. I consider that my proposed orders are otherwise “appropriate for the welfare of the children” – to borrow from the language of s.60B.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate:  

Date:  30 May 2019