WALKER & BALDWIN

[2015] FamCA 1007

FAMILY COURT OF AUSTRALIA

WALKER & BALDWIN [2015] FamCA 1007

FAMILY LAW – CHILDREN – equal shared parental responsibility – child to live with the mother – where the mother has made numerous reports to child safety authority – discussion of whether Rice & Asplund argument open to be made – where no sufficient change in circumstances to justify re-litigation – where it is found the father is not a risk to the child.

Family Law Act 1974 (Cth) s 4 s 4AB s 60B s 60CA s 60CC s 61DA s 62B s 65DA s 65DAA s 65DAC s 69ZQ
Evidence Act 1999 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Harridge & Harridge [2010] FamCA 445
Rice & Asplund (1978) 6 FamLR 570; (1979) FLC 90-725

B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569ta

APPLICANT: Ms Walker

RESPONDENT: Mr Baldwin

INDEPENDENT CHILDREN’S LAWYER: Ms Berck

FILE NUMBER: BRC 3973 of 2008

DATE DELIVERED: 17 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 6, 7 and 8 October 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER :

Mr Tucker

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck Solicitors

Orders

1. All previous orders are discharged.

2. B (“the child”), born … 2007, live with Ms Walker (“the mother”).

3. The mother and Mr Baldwin (“the father”) have equal shared parental responsibility for the major long term issues of the child.

4. The child shall spend time and communicate with father at all times as may be agreed between the parties in writing but failing agreement as follows:

   a.       by telephone: each Tuesday and Thursdays between 6.00 pm and 7.00pm with the father to initiate the telephone call to a number provided to him by the mother; and

   b.      each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing 16 October 2015 ; and

   c.      from the commencement of the June/July 2015 gazetted school holiday period;

   i.for the first half of each school holiday period in even numbered years; and

   ii.for the second half of each school holiday period in even numbered years for 2014

   d.      from 9.00 am 24 December until 2.00 pm 25 December in even numbered years save for 2014; and

   e.      from 2.00 pm Christmas Day until 5:00 pm boxing Day in odd         numbered years;

   f.       on  the child’s birthday each year:

   i.if the day occurs on a school day: from after school until 6.00 pm with the father to collect the child from school at the commencement of time and return the child to the mother’s home at the conclusion of such time; and

   ii.if the day occurs on a non-school day; from 1.00 pm until 6.00 pm with the changeovers to occur at McDonald’s at Suburb Y.

   g.      From 5.00 pm Friday until 5.00 pm Sunday on the weekend on which Father’s Day occurs

5. The operation of Clause (4)(b) of this order shall be suspended for the weekend on which Mother’s Day occurs such that the child shall remain with the mother during that weekend.

6. The child shall communicate with the mother by telephone during any school holiday time he is spending with the father, with such telephone communication to occur each Tuesday and Thursday between 6.00 pm and 7.00 pm with the mother to initiate the telephone call to a number provided to her by the father.

7. In order to facilitate the child’s telephone communication with each parent, each parent shall:

   a.    ensure that the child is available to receive the telephone call; and

   b.    ensure that the child telephones the other parent on the following night if for any unforeseen circumstance, the child misses the telephone call from that parent; and

   c.    ensure that the child has privacy during the telephone communication.

8. Each parent shall be at the liberty to attend the child’s schooling and extra-curricular activities and events.

9. Save as is otherwise provided for in this Order or agreed between the parents in writing, changeover shall occur at McDonald’s at Suburb Y and for that purpose:

   a.    each parent may collect the child in person or by a nominee, provided that such nominee is an adult known to the child and the other parent; and

   b.    each parent shall remain near their respective cars so as to enable the child to move readily between the vehicles.

10. Each parent shall:

    a.    keep the other informed at all times of their current residential address and contact telephone number; and

    b.    in the event  that there is a change to their address and/or contact telephone number: notify the other parent at least seven (7) days before any such change; and

    c.    keep the other informed of the names and addresses of any treating medical or other allied health practitioner upon whom the child attends for treatments; and

    d.    inform the other as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.

11. By this Order, any treating medical or other allied health practitioner upon whom the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, such information about the child’s attendance and treatment as they are lawfully able to provide.

12. By this Order, any school at which the child attends is hereby authorised to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and any other related activities and achievements.

13. During the time the child is in a parent’s care, that parent shall:

    a.    respect the privacy of the other parent and not question the child about the personal life of the other parent; and

    b.    speak of the other parent respectfully; and

    c.    not denigrate or insult the other parent to or in the hearing or presence of the child and shall use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or presence of the child; and

    d.    not physically discipline the child.

14. Any application in relation to the enforcement of this Order is to be listed with priority.

15. The Independent Children’s Lawyer be discharged upon the later of the expiration of the appeal period from these orders, or the determination of any appeal.

16. Pursuant to 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BEC 3973/2008

MS WALKER

Applicant

And

MR BALDWIN

Respondent

REASONS FOR JUDGMENT

introduction  

1. By her Amended Initiating Application filed 16 September 2014, Ms Walker (“the mother”) seeks the discharge of earlier consent parenting orders made on 18 April 2012.  In their place, she seeks orders that she have sole parental responsibility for the child B, born in 2007 and hence presently eight years of age (“the child”) who should reside with her and only spend supervised time of no more than four hours each alternate weekend with Mr Baldwin (“the father”).

2. By his Response filed 7 November 2012, the father seeks that the mother’s application be dismissed.  He contends that the effect of that would be to keep operative the 18 April 2012 orders, which provide for equal shared parental responsibility, and for the child to live with the mother but spend unsupervised time with the father on alternate weekends from 5:00pm Friday to 5:00pm Sunday, together with one half of school holidays.  The father justified his orders on two bases.  Firstly, in reliance upon the so-called rule in Rice & Asplund, he said that there has been insufficient change of circumstance since the orders of 18 April 2012, and the mother should not be permitted to re-litigate them.  Alternatively, he said that such orders remained in the best interests of the child, and even if the mother were permitted to re-litigate, the outcome should be indistinguishable from those earlier consent orders.

3. The Independent Children's Lawyer supported the position of the father.

BACKGROUND FACTS

The father

1. The father was born in 1972 and hence is presently 43 years of age.  He grew up in Suburb in Brisbane.  Although having a generally unremarkable childhood, he does suffer from Blepharophimosis, Ptosis and Epicanthus Inversus Syndrome, which is a condition which mainly effects development of the eyelids, and causes people who suffer from it to have a narrowing of the eye opening, droopy eyelids and an upward fold of skin on the eyelid.  He told Dr F, a psychologist who examined him, that this condition caused him to be bullied by his peers as a child, but nonetheless he generally enjoyed school, was well behaved and academically successful.  He completed schooling to grade 12 and then attended the university where he completed a degree.  After graduating, he worked for about six years away from Brisbane, but ultimately returned to employment in the Brisbane region.

2. Whilst living away from Brisbane, he met his first wife, Ms Baldwin.  They married and remained in a relationship for approximately eight years.  There were two children to that relationship being C (presently 17 years of age) and D (presently 16 years of age).

3. That relationship concluded after the father and his then wife had returned to Brisbane, although the father told Dr F that towards the end of that relationship and thereafter his wife would make “all kinds of claims” about him “abusing her or having raped her.”

4. Sometime after the termination of that marriage, in September 2005 the father commenced a relationship with the mother after having met her online.  He was then 33 years of age.

The mother

1. The mother was born in 1968 and hence is presently 46 years of age.  I know little of her early life, other than she successfully completed a Bachelor’s degree and subsequently completed a Master’s.  It is not clear whether she had completed those qualifications prior to meeting the father.  Likewise I know little of her earlier relationship history, save that she appears to have been earlier married, to which relationship a daughter, Ms G, presently 19 years of age, was born.

2. The mother, then aged 36 was living with Ms G, when she met the father in September 2005.

The relationship

1. Both parties deny that at any time during their relationship they ever cohabited, although they concede that they did spend regular time overnight in one another’s homes.  The parties appear to agree that the pregnancy which led to the birth of the child was unplanned.

2. The parties are not in agreement as to when their relationship terminated; the mother says it was in September 2007 whereas the father says it was in 2009, however nothing turns upon that and it is unnecessary to determine that issue.

Post-relationship

1. In either late 2007 or early 2008, the father commenced proceedings relating to the child in the then Federal Magistrates Court.  It appears as though he was simultaneously engaged in litigation with his ex-wife in relation to C and D.

2. At about this time, in circumstances which are not clear, the father was charged with possession of child exploitation material, seemingly stored on his computer.  However for reasons which the evidence does not detail, the prosecution did not proceed and the charges were withdrawn.

3. Also at about this time, it appears as though the mother commenced to make allegations that the father was sexually and physically abusing the child.  The father then, and has always, denied any such misconduct by him.

4. Notwithstanding those matters, on 11 September 2009, the then Federal Magistrates Court proceedings relating to the child concluded by consent on a final basis, with orders which saw the mother and father have equal shared parental responsibility for the child, who was to live with the mother but spend gradually increasing unsupervised time with the father, including overnight time, and up to four blocks of time with the child, each block being of one week.

5. Although there may have been a brief period of peace, those final orders did not see an end to the mother’s making of allegations that the father was abusing the child.  For instance in 2010 she became concerned when the child allegedly made a disclosure that the father had “bit his wee wee.”  The subsequent Departmental investigation apparently did not substantiate any risk of harm posed to the child by the father.

6. Then on 29 March 2011 the mother raised with police that after spending time with the father, the child was returned to her with bruising.  A video recorded interview of the child ensued, but according to the police records, the child “could make no clear disclosures as to what had occurred.”  That record continues “no injuries to the victim that were sighted.  The victim has been the subject of 9 previous matters relating to his father where complaints were made by victim’s mother.”

7. However about two weeks later the mother again returned to police with the child.  It appears this may have been precipitated by an alleged disclosure by the child to his general medical practitioner that when spending time with the father he had “placed his mouth over [the child’s] penis.”

8. The mother attended police directly after leaving the GP, and asked for an immediate s 93A interview with the child.  However at the time the child was asleep and she was told that the interview would be conducted on the following day.  In that interview according to the police notes:

   ..[The child] stated that dad put toy in mouth and made him sick.  [The child] stated that dad broke his finger, dad tied his hands up with shoe laces and dad bit his wee wee and that his dad must hate him.

9. The child was medically examined.  That examination, at least according to the police report, could not find any evidence that the child had been sexually abused and found no sign of any soft tissue injury.

10. Both before and after these events it appears as though the father and mother continued intermittent skirmishes, or attempted skirmishes, in the Federal Magistrates Court, with at least the father seeking variations of the recent consent orders, and various contravention proceedings being filed, but apparently never concluded.

11. On a date which is unclear, the mother filed a fresh Initiating Application in the Federal Magistrates Court seeking a new regime of final orders.  It is unclear whether or not a Rice & Asplund argument was raised in relation to that application, but in any event orders were made for the preparation for a Family Report and in due course it was released to the parties.  That appears to have precipitated a second set of final consent orders on 18 April 2012, which I have sufficiently detailed earlier in these reasons.  Again that appears to have heralded a brief period of peace, however in October 2012 the mother withheld the child from spending time with the father, which led to the father bringing contravention proceedings.  Perhaps in response to that, on 2 November 2012 – just a little more than six months after the final consent orders had been made – the mother commenced these proceedings by filing a further Application in the Federal Magistrates Court seeking to suspend the then final orders, and requiring that any time that the child spends with the father be supervised at a Contact Centre.  At the same time she filed a Notice of Child Abuse or Family Violence, the affidavit in support of which asserted a variety of physical injuries to the child, including bruising, split lips and the like.

12. On 7 November 2012 the father filed his Response which, in part, sought both final and interim orders dismissing the mother’s application on the Rice & Asplund grounds.

13. Those matters came on before Federal Magistrate Jarrett (as his Honour then was and who had been the Magistrate who had made the consent orders in April of that year) who, without determining the father’s application, transferred the proceedings to the Family Court on 23 November 2012.

14. The father’s application in due course came on for hearing before Kent J on 3 June 2013.  In written reasons delivered 9 September 2013, his Honour determined not to dismiss the father’s application, but to adjourn it to the trial Judge.  He did that because he could not “be satisfied, on such an interim hearing, that there is nothing new, or no material change in circumstances in the allegations advanced by the mother.”

15. In the subsequent melee of proceedings, there have been several occasions when the mother has withheld the child, and occasions when she has permitted time under the extant interim orders to continue.  Several interim applications have been made from time to time by the parties, but it is unnecessary to traverse their somewhat tortured history.  Suffice to say that the mother has during that time, apparently consistently agitated for the father’s time with the child to be supervised.

16. In February 2013 the father commenced a new relationship with Ms H, currently aged 43 years old.  They commenced living together in about September 2014, together with Ms H’s son from a previous relationship, J.  J is currently seven years old.

17. Interim orders were made by Principal Registrar Fillapello on 17 April 2014 which provided, on an interim basis, for equal shared parental responsibility, and for the child to live with the mother, but to spend progressively increasing time with the father, culminating in alternate weekends and half of school holidays.  The mother appealed those orders, but for reasons delivered 5 December 2014 Hogan J determined (by way of hearing de novo) that a virtually identical regime of orders was appropriate.  Those were the orders which continued in force at the time of trial before me.

18. In her reasons for judgment, Hogan J helpfully set out in chronological order the relevant departmental notifications in relation to the child as follows (footnotes omitted):

    42.The Department has been informed on a number of occasions about matters involving the child:

    (a)28 May 2008: a Child Protection Notification was recorded arising out of a report that the father liked to fondle the child’s genitals and touch him inappropriately – this was found to be unsubstantiated;

    (b)8 May 2009: a Child Protection Notification was recorded arising out of a report that the father was ‘groping the child’s ball sack and fiddling and squeezing them’ – this was found to be unsubstantiated; the child appeared happy and healthy when seen by Police and Departmental officers on two occasions;

    (c)28 June 2010: a Child Concern Report was recorded arising out of allegations that about two years earlier the father had sexually abused the child but no charges were brought because he was too young and could not communicate; it was reported that, in April, he said ‘daddy….wee wees’ while jumping up and down and rubbing his hands over his genital area;

    (d)6 January 2011: a Child Concern Report was recorded arising out of a report the father had harmed the child whilst he was in his care;

    (e)29 April 2011: a Child Concern Report was recorded arising out of an allegation the child had suffered a bruise on his chest as a result of his father hitting him – this was regarded as a vexatious complaint;

    (f)5 August 2011: a Child Concern Report was recorded arising out of a report the child fell off his scooter and may have seen the father push his partner;

    (g)24 January 2012: a Departmental officer spoke with the mother and concluded the Family Court dispute plays a significant part in the manner of communication between the child’s parents; the mother reported that C’s mother had spoken with her about allegations and held concern for the child whilst in the father’s care;

    (h)20 December 2013: a notifier reported he/she was very concerned about the child’s time with the father because no one can protect him;

    (i)20 December 2013: a notifier reported he/she believed the mother was terrified of the child staying with the father; the father had been spoken to by the Police about allegations he physically abused C;

    (j)3 January 2014: a notifier reported that, on 20 November 2013, C was taken to the Suburb R Police Station to report an incident he was told about on 1 September 2013 when he was with his father and the child and his paternal grandparents in a park at Suburb I for a Father’s Day celebration; C is reported to have told the Police that the child told him the father ‘touched him on the wee wee’ but could not provide further information; the notifier reported there have been five previous allegations made but no charges have been laid against the father; C could not particularise but maintained that the child told him previously about the same incident but he could not recall when.

    43.As at September 2011, the Department concluded that the only “parenting need” for both parents was the need to work on household relationships due to ongoing conflict around residence and contact issues. The Department assessed that the main issue was that the mother should exercise appropriate responses to the child’s reports rather than presenting him for intrusive interviews with the Police. At that time, she had not done so for three months, but there was still considerable conflict between the parents.

    44.The mother has previously worked in conjunction with the Department – she entered into an Intervention with Parental Agreement (IPA) which was operative between 3 August 2011 and 29 September 2011. Departmental records establish she appeared willing to engage with the Department and committed to working with services to provide her with the necessary skills and support to protect the child from further harm.

    45.A Case Review compiled by the Department on 26 October 2011 noted that there had been three prior Child Protection Notifications, all of which were concluded to be unsubstantiated. The Department expressed concerns about emotional harm due to allegations of sexual abuse, asserted excessive physical discipline and alleged poor hygiene and nutrition whilst in the father’s care.  The Department concluded that the child had suffered emotional harm (manifested by increasingly clingy and aggressive behaviour) for which the mother was considered responsible. The Department noted that, after this conclusion had been reached, there were two further Intakes relating to reports of the child suffering a bruise and lump on his head.

    46.On 7 December 2011, the Department notified that the IPA with the mother had been closed on the basis that she advised she had already accessed her own counsellor.

    47.The Department resolved to downgrade the January 2014 report from a Child Protection Notification to a Child Concern Report and not to commence an investigation into the same because:

    (a)there had been previous allegations of sexual abuse between 2008 and 2012;

    (b)all previous Notifications about concerns about the father have been unsubstantiated;

    (c)the most recent Investigation and Assessment concluded with a substantiated harm finding about the mother because she had instigated multiple investigations and had presented the child to Police and other agencies on occasions;

    (d)no concerns were noted about both parents during the 2010/2011 Departmental investigation;

    (e)when interviewed by a speech therapist on 28 September 2010 the child said, in relation to the father: ‘he not bite my wee wee’ (my emphasis);

    (f)on 12 October 2010, Police concluded that the allegations that the father had sexually abused the child were unsubstantiated;

    (g)on 21 October 2010, Police concluded that disclosures made by the child appeared to have a degree of coaching about them – they recommended no further ICare involvement because it would be harmful to the child to be further involved in further investigations;

    (h)on 24 February 2011, Police concluded the child sounded as if he had learned responses – they supported the Department’s conclusion of emotional abuse of the child by the mother;

    (i)on 29 March 2011, Police expressed the opinion that nothing untoward had happened to the child;

    (j)C’s information about the child and the father was very limited, lacked particularisation, contained no specific details and provided no context around the disclosure: Police had concluded that no offence had occurred;

    (k)the mother continues to subject the child to ongoing investigations despite all allegations being found by Police and the Department to be unfounded;

    (l)the validity of the information provided was highly questionable, there being no further concerns reported about the child since the original notification;  and

    (m)B would suffer more harm if interviewed by Departmental officers again.

1. Likewise at paragraphs 50 to 55 of her Honour’s reasons she recorded the following in relation to departmental and police involvement in relation to C (footnotes omitted):

   50.C has previously been reported as having problems controlling his aggressive impulses on occasion. The Department has been informed on a number of occasions about matters involving C:

   (a)2004: a notifier reported the father had kicked and punched C’s mother’s oldest child (K); whilst it was alleged C was also kicked, he did not remember being hurt by the father and said he did not know he had been kicked until his mother told him he had; a notifier reported ongoing concerns around C’s sexualised behaviours (it was alleged he asked his sister D to touch him) which were linked to his Asperger’s Spectrum Disorder – however, the school said there were no problems with this;

   (b)2009: a notifier reported that there were still concerns around C’s sexualised behaviours and he reported he was allowed to touch the father’s genitals; when D was interviewed by the Department, she denied being sexually harassed by C and the school informed that it had never seen C display sexualised behaviours; the father told the Department he had legal adult pornography on a password protected computer and both D and C denied seeing pornography at the father’s home: the Department identified that continual allegations regarding C’s alleged sexualised behaviours could potentially lead to him suffering emotional harm, especially given that concerns were being raised (without any supporting evidence) that he was displaying inappropriate behaviours;

   (c)2011: a Departmental Intake recorded allegations the father inappropriately disciplined C: Police investigated and concluded that one occasion involved domestic discipline which was an appropriate reactions to C’s behaviour; the Intake records that “Family Law Court action is continuing to create conflict in the family”;

   (d)17 July 2012: a notifier reported C was struggling emotionally, exhibited strange and impulsive behaviours and had written a letter which indicated abuse from the father, fear about him and disclosed feelings of suicide – there is no suggestion that this involved allegations of sexual abuse;

   (e)17 July 2012: a second notifier reported that, in talking about a time when he lived with the father and his mother in S Town, C reported the father arguing with and being violent toward an older brother; that C said he had fun with the father when visiting him but, occasionally, his bad side showed; that C reported the father physically disciplined the other children and that, in 2007, the father had taken his ‘wrath’ out on him and he was scared; that C said it was fine until 2010 when he began to feel scared; that, in 2011, C was anxious about starting high school and felt like the father picked on him and he could not take it so he (C) did little things to annoy the father who then reacted, was mad and C was scared;

   (f)20 July 2012: the second notifier from 17 July 2012 was contacted and reported that, when his mother enrolled C in Boys Brigade, she reported he had multiple issues like anxiety, challenging behaviours and health concerns but the people at Boys Brigade never saw these behaviours;

   (g)6 September 2013: a notifier reported that, on 1 September 2013, C sent a friend a text saying he had gone to a bridge and was going to jump off – this was after visiting his father that day; the friend talked C out of that threat and called the Police; C was located and admitted to an Adolescent Mental Health Unit at a central hospital and, during his admission, disclosed that:

   (i)he had been sexually abused by an 18 year old maternal cousin when he was 9 years old; and

   (ii)he was having ‘memories’ and ‘flashbacks’ of the father physically and sexually abusing him - he could not provide a timeframe about when this was alleged to have occurred  and said he had never disclosed this before.

   The notifier also informed that the child’s mother had told C’s mother after the same visit on 1 September 2013 that the child came home upset, took his clothes off and showered, saying “ I have to wash daddy off me’;

   (h)17 September 2013: a notifier informed that C was discharged from the Mental Health Unit on 12 September 2013 to be followed up by Child and Youth Mental Health Service at an appointment on 6 September 2013; he had recently spoken with his mother about his disclosure of being sexually abused by a cousin when aged 9 years – she was shocked but will act protectively; C was worried about the disclosures and what they would mean for his family; C made no further disclosures and no further information was known about the father – C spoke more about the disclosure involving his cousin;

   (i)29 November 2013: a notifier informed that C had assaulted his mother and broken her elbow – the family was said to be saying she fell down stairs;

   (j)17 December 2013: a notifier reported C was highly anxious and his anxiety could occur over relatively minor matters; he is said to have been diagnosed with Asperger’s and is on medication; the notifier believed C had told his story about the father so many times without repercussions for the father; C was reported to be very concerned about the child whilst in the father’s care; the notifier reported that the father had accused C of sexually abusing his sister (D); that C chooses to have more time with the father than the Court ordered and was taken to Prince Charles Hospital after a Father’s Day picnic with the father;

   (k)mid December 2013/early January 2014: a notifier reported C was experiencing flashbacks;

   (l)20 December 2013: a notifier reported that C only recently said he had seen child pornography at the father’s place; that C believed that the father sexually abused him and had reported he had been sexually abused by a cousin when he was 9 years old;

   (m)20 December 2013: a Departmental officer saw C at his home - he was highly agitated and demanded the officer get the child and keep him away from the father.

   51.C was taken by his mother to the Police station at about 11.00 pm on 20 December 2013 to report something he was told by the child on 1 September 2013. He was agitated and concerned for the child and told Police the child told him ‘dad touched him on the wee wee’. He recounted he had spoken with Departmental officers earlier that day about the incident. He was unable to provide any further particularisation about the child’s reported comment to him.

   52.The interviewing Police officer noted C has an intellectual impairment, was worked up and said the father did the same thing to him: in particular, he said the father had told him to take his pants off – or he somehow became unclothed – lifted his penis, looked at it, went ‘hmmh’ and walked away.

   53.After interviewing C, Police formed a conclusion that neither C’s’ mother nor the child’s mother like the father, were ‘in the children’s ears’ and collude. Police concluded that, because it is not ‘unnatural’ that parents might behave in the manner described by C, there was no indication an offence had occurred.

   54.The Department concluded that C has been the subject of systems abuse. A stark insight into the impact on C of exposure to repeated investigations and parental conflict can be seen in the fact that, when was 14 years old, C wrote “ I need help” and that he felt like his head was about to explode.  At around that time, the Department concluded C had been harmed and was at an unacceptable risk of future emotional harm due to exposure to destructive/abusive parenting practices from both parents. Given that his mother’s house provided for his care, her home was identified as the source of the risk of emotional harm. The Department noted that, as C alleged the father was the person to whom he attributed anxiety and fear, the father was listed as the person responsible for harm also.

   55.In a not dissimilar way to that involving C, the Department has concluded the child has been subjected to repeated investigations and interviews which are suggestive of systems abuse.[1]

   [1]           Exhibit 9.

2. Before me no party contended that Hogan J’s recital of this information was erroneous, and I gratefully adopt her Honour’s analysis.

3. The orders of Hogan J appear to have been complied with by both parties and to have worked well.  To the extent that there have been any issues, they were that on 7 August 2015 it took about 40 minutes to effect changeover of the child into the father’s care, and that telephone communication between the child and father has not been successful.  Otherwise the evidence of both the father and his mother, Ms W Baldwin, as to the child enjoying time with his father, and with his step brother J, was unchallenged.

4. I should also advert to the fact that in the course of interviews for the second Family Report, the child was unwilling to engage with the father despite his “patient, child focussed and varied engagement approaches” and concluded with the child shortly thereafter choosing to exit the room and join his mother and sister Ms G.  However the Family Report writer observed:

   It is noted that electronic mail correspondence subsequently received from [the father] stated that [the child] had transitioned into his care on the next scheduled changeover for his week of school holiday time and he had settled well into his care.

THE ISSUES

1. I identify the following as the issues likely to substantially determine the outcome of these proceedings:

   1.Is the father’s Rice & Asplund argument still open to him;

   2.If it is, has there been a sufficient change of circumstances since 18 April 2012 to justify re-litigation;

   3.What is the nature of the relationship between the father and the child;

   4.Would the child benefit from a meaningful relationship with the father, and if so, how might that best be facilitated;

   5.Is the father an unacceptable risk of harm to the child if he spends unsupervised time with him.

2. Once I have considered the relevant statutory provisions and legal principles, I will address those issues in advance of a traverse of the s 60CC factors, and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable,  the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents.  If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents.  In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).

6. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[2]

   [2]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.

7. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)          an assault, including a sexual assault, of the child; or

   (b)          a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c)           causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)          serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family … or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence.  Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[3] 

   [3] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

1. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[4]

   (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?

   [4] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

2. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

Rice & Asplund

1. The so-called Rule in Rice & Asplund has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque.  Moreover, the discussion in those authorities is somewhat confusing, in that it involves large slabs of earlier judgments being recited, often in a way which is rather unwieldy.  From my analysis of those cases, I venture the following as relevant principles which may either be drawn directly from them, or which otherwise logically arise:

   (a)The rule is but one manifestation of the best interests principle;

   (b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;

   (c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;

   (d)The rule can be applied at any stage of the proceedings;

   (e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;

   (f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);

   (g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued.  In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved.  Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible.

   (h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;

   (i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child.  Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;

   (j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;

   (k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);

   (l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;

   (m)It will be a matter for the trial judge as to whether under Family Law Act s 69ZQ, evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;

   (n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.  

IS THE FATHER’S RICE & ASPLUND ARGUMENT STILL OPEN TO HIM

1. I have already adverted to the fact that in his Response filed 7 November 2012, the father sought interim orders that the mother’s application be dismissed.  Kent J interpreted that as an application by the father to summarily dismiss the mother’s application, although concluded that on the untested material before him, he could not be satisfied that there was nothing new, or no material change in circumstances in the allegations advanced by the mother.  However at paragraphs 34 and 35 of the reasons, his Honour went on to say that he would adjourn to the trial judge the father’s application rather than dismissing it, because it may be that by the time of the trial “an application to summarily dismiss can more readily entertained and dealt with because of the state of the evidence and the capacity to have relevant witnesses cross-examined.”

2. For reasons which are unclear, in determining the appeal from the Principal Registrar’s interim parenting orders, Hogan J at [10] concluded that Kent J had dismissed the father’s application for summary dismissal of the mother’s Initiating Application.  Moreover, later in those reasons, when identifying the competing proposals between the parties, her Honour noted at [21] “the father and Independent Children's Lawyer propose that [the child] should spend time with the father in the manner ordered on 17 September 2014 [ie by the Principal Registrar].”  Whilst it is unclear whether that was the father’s articulated position before her Honour, certainly it appears plain that his Response remained as cast as at 7 November 2012, namely, that the mother’s application simply be dismissed.

3. No doubt in consequence of those matters, there appears at the commencement of her Honour’s orders that “All previous orders are discharged.”  That order was under the heading “Orders” and immediately before a further heading “It is ordered until further order that”.  It seems plain that her Honour intended the order discharging all previous orders to be a final order rather than an interim one, not only because of the contra-distinction between the two headings, but also because her Honour used the word “discharged” rather than “suspended.”

4. No appeal was brought from the orders of Hogan J.

5. I am satisfied that the effect of that is that indeed the consent orders of 18 April 2012 no longer remain in force, because they have been discharged.  The practical effect of that was to dismiss both the father’s application for summary dismissal, and indeed the father’s application for final relief.  The father’s application based upon Rice & Asplund has therefore been thwarted.  However to cover the eventuality that I am wrong in that conclusion, I will proceed to consider the Rice & Asplund issue as a threshold question in this judgment.

HAS THERE BEEN A SUFFICIENT CHANGE OF CIRCUMSTANCES TO JUSTIFY RE-LITIGATION

Overview

1. The mother contends that not only has there been a sufficient change of circumstance to warrant re-litigation, but she says that those changes compel the conclusion that it is in the child’s best interests that any time he spends with the father be supervised.  The father denies both of those arguments.  The Independent Children's Lawyer submitted that whilst there is an argument that there has been insufficient change in circumstances, nonetheless the re-litigation should be permitted because the prior orders were consent orders without any findings of fact arising from trial.  Particularly the Independent Children’s Lawyer argues that there has never been a finding that the father was not an unacceptable risk by a judicial officer, and that a finding either way on that issue is likely to ensure that the litigation is not only concluded, but that a judicial determination might finally quell the parties’ dispute.

What has changed?

1. The mother appears to contend that the following are the circumstances which have changed since 18 April 2012:

   ·That on several occasions the child has returned from the father’s care with either bruising or minor injuries (such as a split lip);

   ·That on two occasions the child has witnessed domestic violence: the first occasion was on 6 August 2011 involving the father and his first wife; the second was in 2012, and involved the father and mother during the course of a changeover of the child;

   ·That the father has on occasion been medically neglectful of the child, for instance it is said that on 24 July 2012 he allowed the child when he was suffering from the flu to sleep outside in a tent;

   ·On 28 September 2012 DoCS substantiated that the father was a risk of emotional harm to C;

   ·On 17 April 2014 DoCS again substantiated that the father was a risk of emotional harm to C as a result of sexual abuse of him by the father;

   ·That C does indeed appear to suffer considerable mental distress including, as at the time of trial, being hospitalised for such issues;

   ·That the child refused to engage with the father at the Family Report interviews, and has on occasion in the past refused to spend time with the father;

   ·On one or more occasions the father has been physically violent with the child, one instance of which was said by the mother to have resulted in him suffering concussion;

   ·That in the most recent court orders relating to C and D the father consented to orders which did not oblige them to spend any time with him (although the mother mistakenly thought that this was a “no contact” order at an early stage in the litigation).

2. The father denies that he has ever sexually abused either C or the child.  Further, he points to the fact that to the extent that such disclosures have been made by C, they are concededly part of a “recovered” memory, and insofar as they have been made by the child directly either to his general medical practitioner, Dr T, or his counsellor at H Organisation, Mr Q, neither of those persons forensically evaluated those disclosures.  Further, neither of those person were made available for cross-examination (both were unable to attend before me because of illness) and subsequent investigations by DoCS had not, as regards the child, substantiated any risk of harm in the father.  Further, the father has never been charged, much less convicted, of any such offence.

3. As regards the DoCS substantiation of a risk of harm to C, the father points to the fact that the Departmental processes do not require satisfaction of anyone other than the Department itself, that the Department appeared to unquestioningly accept C’s disclosures without any real investigation, and further that the referral by the Suburb R DoCS (who made the substantiated finding in relation to C) of the matters involving the child to the E Town DoCS (being the relevant area with responsibility for the child) led to the latter in fact downgrading the notification and not proceeding to any investigation of it.

4. The father further says:

   ·He has never been responsible directly for any bruising to the child, save for one episode where the child was out of control and his discipline of him caused the child to fall off a bed.  He says that the police investigation arising from that concluded that he acted reasonably;

   ·That he has never inappropriately failed to afford medical attention for the child;

   ·That the child would not engage with him in the Family Report interview, but says that subsequently he has spent time with him satisfactorily.

5. As shall ultimately be seen later in these reasons, I am not persuaded that there is any merit in the mother’s arguments that such of the matters as she has established demonstrate that the father presents an unacceptable risk of harm to the child.  However the following points, notwithstanding that, tell in favour of the mother being permitted to re-litigate in the somewhat unique circumstances of this case:

   ·The trial has now been conducted.  Whatever evils the preparation for it (including Family Report interviews) have visited on the child, and the conduct of it effected on the parties, they have nonetheless now eventuated;

   ·In those circumstances, if I were to rule that the mother could not re-litigate, and that finding were overturned on any appeal, the parties would be obliged to conduct the trial all over again (although I accept that could be ameliorated by proceeding to go on to determine the substantive parenting proceedings on their merits to accommodate that eventually; why however I would do that rather than simply determine the parenting proceedings is unclear);

   ·The parties have in the past only entered into consent orders, which do not appear to have ever had the effect of in fact quelling the controversy between them;

   ·The mother’s consistent theme is the risk which the father poses to the child.  There has been no judicial determination on that controversy, other than implicitly by virtue of the consent orders previously made.

6. I should make it plain that, had this matter not been listed for trial, but rather the Rice & Asplund issues argued by way of preliminary point well in advance of the trial, the outcome may have been substantially different.  However as the cases make plain, the time at which the rule is considered cannot be ignored, and particularly in this case, I adjudge that it is in the best interests of the child to have the controversy between the parties determined by explicit reasons resolving it.  The alternative, namely to leave the parties to stew in what appears to have been, at least from the mother’s perspective, considerable disquiet with the appropriateness of the orders which she consented to now over three years ago, is not attractive.  Therefore not only am I not persuaded that the so-called rule should preclude the mother from re-litigating, I am positively persuaded that it is in the child’s best interests that she be permitted to do so.

NATURE OF RELATIONSHIP BETWEEN FATHER AND CHILD

1. The father asserts that he has a good relationship with the child.  The mother does not enthusiastically agree with that proposition, but says that she does not know what occurs when the child is spending time with the father, and therefore cannot disagree with the proposition either.

2. In a draft affidavit prepared during the course of the trial and adopted by the father whilst under oath in the witness box, he set out his experience of the child spending time with him since the orders of Hogan J in December 2014.  It is unnecessary to set that out in detail, however the following are relevant points:

   ·Although initially there was conflict between the child and J, they are now very close and play enthusiastically together;

   ·The child enjoys playing with the father’s dog;

   ·The child has a large Lego collection at the father’s home and enjoys interacting with the father in building things from it, or alternatively making them himself;

   ·The father and the child play chess which both enjoy, and the father enjoys teaching the child;

   ·The father and the child (together with J) often play soccer, football and cricket and enjoy watching NRL games together;

   ·The collective family enjoy beach access where, although because the child is scared of sharks he does not swim, they play beach cricket and make sand castles;

   ·The child enjoys reading, and has taken a pride in reading to J.  Further he writes his only stories and draws pictures for them;

   ·The father encourages the child in mathematics and sometimes sets him problems in that;

   ·The child has bonded with another child of about his age who is part of the father’s friend group;

   ·The family group will attend outings at the park, beach, swimming, movies or similar.

3. His evidence in this regard was supported by evidence from his mother, Ms W Baldwin by way of affidavit dated 1 September 2015. 

4. Neither the father nor the paternal grandmother were challenged in relation to any of their evidence in this respect, and I accept it.

5. As previously indicated, in fact the Family Report writer was unable to observe interaction between the father and child in the course of the most recent Family Report interviews.  However she said that the fact that the child is voluntarily going to spend time with the father, and appears to otherwise be doing well with his life and not disclosing any problems experienced by him when he is spending time with the father, tends to suggest that the relationship is good.  I accept that evidence.

6. I am satisfied that the child and the father have a meaningful relationship from which the child derives comfort, support, intellectual and social stimulation and exposure to a range of good experiences.

BENEFIT OF MEANINGFUL RELATIONSHIP WITH FATHER AND FACILITATION

1. Ultimately the mother appeared to concede that so long as the child is safe in the father’s care, he would indeed benefit from a meaningful relationship with him.  That concession is sensible.  Plainly the fact of knowing his father is important of itself to the child.  However the father brings benefits to the child of a kind which I have just discussed above.  There is apparently no other male role model regularly in the child’s life.

2. Ms L, the Family Report writer, was asked in relation to this matter.  She was firmly of the view that the child would particularly benefit from having a meaningful relationship with the father during the formation of his adolescent identity, and that the relationship would be best facilitated by regular face-to-face time and the father being involved in all areas of the child’s life.

3. I accept that evidence and indeed am so persuaded.

IS FATHER AN UNACCEPTABLE RISK OF HARM

Overview

1. The mother’s case in this respect appeared to either be inconsistent, or at least to change over time.  However as ultimately formulated, she told me that both individually and collectively, the father posed an unacceptable risk of harm to the child physically, sexually and emotionally.  It is therefore necessary to consider those asserted risks individually and collectively.

Physical risk of harm

1. There were apparently two species of physical risk which the mother said the father posed.  The first was medically related, in that she alleges that on occasions the father has not properly cared for the child (for instance letting him sleep outside in a tent when he had influenza) and that the child on occasion was returned to the mother’s care with bruising or other injuries.  Also the mother appears to rely upon an incident in which the father disciplined the child with the consequence that the child was diagnosed with concussion.

2. Turning firstly to the medical contentions, it is said that on 24 July 2012, when the child was in the father’s care, he slept outside whilst he was suffering from the flu.  I do not understand the mother to say that the child suffered any harm in consequence, but rather the mother said that this demonstrated, inferentially, a lax approach to keeping the child medically well whilst in the father’s care.  The father did not appear to dispute that the child indeed was suffering flu when he slept outside in a tent, but I am not persuaded that such represents some failure to responsibly parent the child on the part of the father.

1. Turning then to the physical injuries which the child has returned with from time to time, they appear to be principally either bruises or cuts, including a split lip on occasions.  However the mother does not contend that the father directly caused these to the child, but rather that they occurred “during his watch” over the child.

2. A parent is not a guarantor that children will not be subjected to the usual sorts of cuts and abrasions that invariably attend a boisterous childhood.  On all accounts the child is active and enjoys engaging actively with others, including his younger step-brother J.  It is only to be expected that on occasions he will injure himself in minor ways.  None of the issues raised by the mother are physically significant.

3. I am unpersuaded that the father presents any risk of physical harm to the child in any respect.

Risk of sexual harm

1. There are two primary sources of the mother’s concern in relation to the father posing a sexual risk of harm to the child.  The first is C’s allegations that the father has sexually assaulted him.  These allegations were first made towards the end of 2013, in consequence of so-called “recovered memory.”  The allegations by C, irrespective of to whom they have been made, have been devoid of much, and on occasion any, particularity.

2. The father was subject to assessment to Dr F, a psychologist who undertakes sexual risk assessments.  He gave some evidence in relation to the notion of recovered memory.  The effect of that was that it was controversial, and that based upon it, he could neither confirm nor disconfirm the likelihood of the accuracy of the alleged recollection.  I accept that evidence, noting that it was not substantially challenged.  Dr F was also particularly troubled by the lack of any specificity attending the alleged disclosures.

3. The second source of concern are alleged disclosures by the child himself.  These appear to have had their genesis in an alleged disclosure made by the child in 2010 that the father had “bit his wee wee.”  This disclosure was investigated by DoCS, and the father was not found to then comprise any risk of harm to him based on that assertion.  Indeed during the course of that investigation the child positively denied that the father had done any such thing.

4. Next it is said that the child has made disclosures of the father touching his penis to Dr T and his psychologist at H Organisation, Mr Q  I have already observed that neither of these witnesses were able to attend for cross-examination; it was said that Dr T was “dying” by the mother (although there was no direct evidence of this) and there was correspondence provided to the court by solicitors for Mr Q which showed that he was “undergoing urological surgery at the time of the trial” and hence unable to give evidence.

5. Dr T is not above criticism.  Particularly the Department has a dim view of him, to the effect that he has been nothing more than a mouthpiece – perhaps more aptly a megaphone – for the mother’s concerns from time to time, and that he has without any reflection regularly made notifications to various entities, including (it seems) the Department.  Absent the doctor presenting for cross-examination, I am left with that unchallenged assertion.  It causes me to have some considerable concern in relation to the doctor’s records, or at least the degree to which he exercised any scepticism as to the veracity of the matters that he was being told.

6. As to Mr Q, as was plain from the evidence of another H Organisation employee, Ms P, the starting point for therapeutic assistance is to, unless it is inherently improbable, accept the version of events which has been given by the client.  The role of the counsellor such as Mr Q is plainly therapeutic, not forensic.  That said, the absence of Mr Q for cross-examination is unfortunate, even if explicable.  It must inevitably means that the weight which is given to his records is diminished.

7. I do not overlook the fact that the Department has substantiated a risk of harm to C based upon the father’s alleged sexual assault of him.  However it appears that they have been prepared to act upon the “recovered memory” of C with less trepidation than I am prepared to.  Moreover it does not appear as though they were with the benefit of evidence from anyone such as Dr F, as to the weight which should be given to such alleged memories.

8. The father has never been charged with any offence in relation to either C or the child.  In the case of the child, even if his disclosure is correct, it is not necessarily sexual abuse, or indeed any form of abuse.

9. Allegations of sexual abuse are grave matters.  To allege that someone presents an unacceptable risk of harm to a child based upon a risk of sexual abuse is likewise a grave matter.  I am not persuaded to the requisite standard that the father presents such a risk.

Emotional risk

1. I did not understand the mother’s case to be that the father has emotionally harmed the child in the past, but rather that by virtue of him allegedly having emotionally harmed C, some level of risk necessarily attaches in relation to the child.

2. The mother appears to principally rely upon a finding by DoCS that the father presented a risk of emotional harm to C, such finding having been made on 28 September 2012.  That finding was expressed in two places in the evidence.  However beyond that finding being linked with various utterances by C consistent with him then being extremely distressed, nowhere can I find in the material any reference to the logic which underpins the alleged substantiation.  Absent the exposure of any such reasoning for scrutiny, I am not prepared to simply adopt the findings of DoCS.  Moreover there is difficulty in translating any such risk as may attach to C directly to the child.  They are quite different children.  C suffers from Aspergers Spectrum Disorder.  The child does not.  It seems plain that C is a gravely troubled child, whereas no such concerns exist in relation to the child.  The fact that some of the father’s behaviours may affect emotional harm upon C, therefore does not immediately translate into a probability that they would affect similar harm to the child.

3. I am not persuaded that the father presents any substantial risk of emotional harm to the child.  I am buttressed in this conclusion by the fact that the child appears to have enjoyed his time with the father for the last ten months under the interim orders of Hogan J.

Evaluation

1. I am not satisfied that the father presents an unacceptable risk of harm taken individually of physical harm, sexual harm or emotional harm to the child.  It only remains to consider whether taken cumulatively they present such a risk.

2. In my view, the soundest means of assessing that is to look at the last ten months.  Save for two instances of reluctance to transfer into the father’s care, and for the apparent failure of the telephone communication regime, there is nothing to suggest that the relationship between the father and child has been anything other than healthy.  Such weight as I give to past instances which do raise some concern in relation to the father – and the weight I give them is very slight – is wholly outweighed by the recent ten month period, which has progressed relatively uneventfully.

3. The evidence falls a long way short of establishing that the father presents any real or substantial risk of physical, sexual or emotional harm to the child, much less an unacceptable one.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that in discussing the issues, I have already traversed many of the s 60CC considerations.  Nonetheless the following further comments are particularised.

2. The child did not express any wishes to the Family Report writer in the most recent Family Report interviews other than to say he did not wish to discuss his father.  The Family Report writer said that such disengagement was consistent with a child who felt torn loyalties between two parents.  I accept that evidence.  I give no weight to the absence of any expressed view by the child. 

3. The paternal grandmother appears to have an excellent relationship with the child.  Likewise the child’s step-brother, J, appears to have an excellent relationship with him, and to a lesser extent so does the father’s new partner Ms H.  I am satisfied that those relationships are important to the child.  His experience of them is an important part of him identifying who he is.      

4. The father has a somewhat unusual approach to engaging with the mother about decision making in relation to the child (accepting that he has for some time not had equal shared parental responsibility).  He assesses that any opposition by him to the mother’s proposals causes her to become aggravated, which causes conflict and in turn is unhelpful to the child.  He therefore expressed the view that he would be unlikely to insist upon his views prevailing in any discussion about decision making in relation to the child, to avoid that conflict.  That said, he has from time to time communicated with the mother in relation to his views, and done so in a rigid and relatively unhelpful fashion.  He acknowledged as much in the witness box.

5. It appears as though the father has met his obligations in relation to child support,

6. Neither party asserted that the other did not have the capacity to provide for the child’s needs.

7. Whilst the mother does identify as aboriginal and intends to raise the child with the knowledge of that culture, this is not a determinative matter in this case given that both parties propose that the child will continue to live with the mother and hence have an excellent opportunity to enjoy that culture.

8. I am not persuaded to the requisite standard that there has been any family violence by the father towards either the mother or his former wife, Ms Baldwin.

9. Family violence orders have been sought on occasions, but never appear to have been made.  I draw no inference from that.

PARENTAL RESPONSIBILITY

1. Given that I am not satisfied that there are reasonable grounds to believe that there has been family violence, the presumption applies.  In any event I am persuaded that equal shared parental responsibility would be in the best interests of this child, notwithstanding the father’s somewhat unusual view that to avoid conflict with the mother, he would not assertively press points of view contrary to those articulated by her.  The father said that he hoped that the conflict between the parties would abate with the conclusion of these proceedings, and upon that event, he would hope to have a more significant role in relation to long term decision making for the child.  That said however, it is plain that if the prospect of conflict remains live, he is unlikely to exercise it except, as he identified in his evidence, in relation to significant matters such as turning off a life support system.

2. Whilst I am mindful of the obligations of an order for equal shared parental responsibility imposed upon the parties by s 65DAC, and am likewise mindful that in the past the parties’ communication has been “clinical” or even terse, nonetheless I am satisfied that both of these parents have much by way of world experience to offer this child by way of influence in decision making.  Indeed I agree with the father that there is a good prospect that with the conclusion of the parties’ disputes – not merely the conclusion of this litigation – there is likely to be some thawing of the ice in relation to their communication.

3. There will be an order for equal shared parental responsibility.

TIME AND COMMUNICATION THE FATHER

1. The mother contends that the father’s time should be supervised and restricted to, at most, four hours per fortnight.  There was no evidence that four hours of supervised time would be available at the relevant Contact Centre proposed by the mother, but even if it were, plainly that would not only be a substantial diminution of the amount of time that the child gets to spend with the father, but also a serious dilution of the quality of the experience during that time.  It seems unlikely that it would involve all the current range of the paternal family members.  Many of the activities which the father has undertaken in the last ten months with the child would be precluded.  There would be (presumably) little opportunity to play cricket, football or soccer.  There would be no visits to beaches, parks or movies.  The child would not get the experience of playing with his step brother J and the family dog.  The effect of that diminution of his interaction with the father and the paternal family is likely profound.

2. I have already found that the child presently has a meaningful relationship with the father, from which he does and will obtain real benefit, particularly during the formation of his adolescent identity.  I have concluded the best means of facilitating the benefits of that relationship to the child is by regular face-to-face time with the father, and him being involved in all aspects of the child’s life.  Supervised time at a Contact Centre would be a positive impediment to any such benefit being obtained by the child.

3. Moreover the mother appeared to contemplate that such supervision would be necessary until the child turned 18 years of age.  The Full Court in the past has expressed considerable reservations about the benefits of such long term supervision without some in goal in sight.  This is par excellence such a case.

4. I have likewise found that the father does not present an unacceptable risk of harm to the child if he spends unsupervised time with him.  The only benefit of supervised time would to be allay the mother’s concerns as to the father’s risk to the child.  Those concerns are unreasonable.  Appeasing her concerns does not outweigh the benefits to the child of having a meaningful relationship with his father.  There will therefore be no order for supervision of the father’s time.  I am otherwise satisfied that the regime of time proposed by the father – noting that it is substantially that which has prevailed for the last ten months and which has worked well – is in the child’s best interests and will so order.

CONCLUSION

1. For those reasons there will be orders as sought by the father and Independent Children's Lawyer and as set out at the commencement of these reasons.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 17 November 2015.

Associate:

Date:  17 November 2015