Waters & Waters & Anor - [2009] FMCAfam 819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WATERS & WATERS & ANOR

[2009] FMCAfam 819

FAMILY LAW – Interim parenting orders – allegations of child pornography – unacceptable risk of harm.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA
Evidence Act 1995, s140

AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1998) 12 Fam LR 606
W v W (2006) 34 Fam LR 129
N & S (1995) 19 Fam LR 837

Applicant:

MR WATERS

First Respondent:

MS K WATERS

Second Respondent:

MS S WATERS

File Number:

NCC162 of 2009

Judgment of:

Lapthorn FM

Hearing date:

22 July 2009

Date of Last Submission:

22 July 2009

Delivered at:

Newcastle

Delivered on:

4 August 2009

REPRESENTATION

Solicitor for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

Slater & Gordon lawyers

Counsel for the first Respondent:

Mr Boyd

Solicitors for the first Respondent:

Moin & Associates

Solicitor for the second Respondent:

Ms Blissett

Solicitors for the second Respondent:

Everingham Solomons

ORDERS

That the orders made 6 April 2009 be discharged.
That orders 4 and 5 made 2 March 2009 be discharged.
That the child [X] born in 2007 spend time with the father:
(a)Commencing 8 August 2009 from 9am Saturday to 5pm Sunday each alternate weekend; and
(b)Commencing 13 August 2009 from the conclusion of day care Thursday until the commencement of day care Friday morning each alternate week; and
(c)At such other times as agreed between the parties;
That for the purposes of Order 3 herein the periods of time the child spends with the father are to be in the presence of one or both of the paternal grandparents.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC162 of 2009

MR WATERS

Applicant

And

MS K WATERS

First Respondent

MS S WATERS

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 2 March 2009 the parents of [X] agreed to interim parenting arrangements and consent orders were made accordingly. These orders provided for [X] to live primarily with her mother Ms K Waters and spend time with her father Mr Waters. The mother was also restrained from relocating the child’s residence more than 25 kilometres from the Armidale Post Office.
The time the child was to spend with the father was to be from the conclusion of day care on Thursday afternoon until the commencement of day care on Friday morning in one week and in the following week from the conclusion of day care on Friday until 9.00am the following Monday morning. There was also provision for [X] to spend further time with the father as agreed between the parties.
Within three weeks of the making of those orders the mother sought to have them discharged and in their place to have any time the father spent with the child supervised. The reasons she sought this change was that she formed the view the father had been accessing child pornography via the internet.
She sought to reduce the father’s time with the child from that provided for in the orders to every Saturday from 9.30am to 12.30pm and telephone time every Tuesday and Thursday at 5.30pm for half an hour. The mother further sought final orders that would provide upon an assessment as to the safety of [X] the child spend time with the father from the conclusion of day care on Friday afternoon until 9.00am on the following Monday morning each alternate week. This final order was also a reduction of the time agreed to by the mother three weeks prior.
When the matter next came before the court on 6 April 2009 the original interim parenting orders were suspended in so far as they related to the time the child spends with the father. In lieu thereof an order was made for the child to spend time with the father from 2.00pm to 5.00pm each Monday afternoon with that time supervised by an employee of the Armidale Family Support Service.
The parties indicated to the court through their lawyers that they would obtain an expert’s report as to the contents of a laptop computer. The lawyers were confident that the matter could proceed to a final hearing once that report was to hand. The matter was listed for final hearing in the New England circuit commencing 20 July but in the week prior to the hearing the court was advised by both solicitors that the matter could not proceed to final hearing and asked that the matter be heard on an interim basis only.

Background

Both the mother and father are 31 years of age, the father having been born in 1977 and the mother in 1978. They commenced to live together in 2000 and where married in 2003. [X] was born in 2007. She is therefore 2 years and 5 months of age.
The parties separated on 30 August 2008. By that time the child was about 18 months of age. The following month the father commenced spending over night time with the child.
In August or September 2008 the mother was lent a computer that was owned by the father’s parent’s company [S] Pty Ltd. This computer was previously used mainly by the father but also by the mother and other persons in the employ of the company.
Three months after lending the computer to the mother the father sought its return.
In January of this year the mother told the father she wanted to move to Port Macquarie. He again requested the return of the computer. It was at this stage the mother decided to have the computer investigated. Whilst the computer was being investigated the mother entered into the interim parenting orders that I have referred to above.
A few days after the making of the consent orders the mother referred the computer to the Armidale Police. A few days later the police made a notification to the Department of Community Services and the Police commenced an investigation. The mother suspended the child’s time with the father after receiving legal advice and on 23 March 2009 filed the response to which I have referred along with a Notice of Child Abuse. The crux of the mother’s concern is that she believes the father has an interest in child pornography and says that the content of the laptop computer is evidence justifying that concern. The father denies accessing any child pornography and says that the child is not at risk in his care.
At the interim hearing the mother sought for the father’s time with the child to continue to be supervised but in the supervision of the paternal grandparents and that such time could include overnight time. The father sought a return to the original orders that were made by consent in February this year.
The 27 May 2009 the paternal grandmother Ms S Waters filed an Application in a Case seeking to be joined as a party to these proceedings and filed a response. She sought to spend time with the child each Tuesday from 3.00pm to 7.00pm each alternate Saturday from 12 noon to the following Sunday at 12 noon and from 5.00pm on 23 December until 12 noon 24 December. At the hearing the paternal grandmother indicated that she did not wish to place any further pressure on the child and indicated that if there was no objection to her spending time with the child whilst the father was spending time with her then she would withdraw her application.
The mother had previously agreed for the time the father spent with the child to be supervised by the paternal grandparents rather than at the contact centre. The paternal grandmother indicated a willingness to continue to act as supervisor.

Issues

The major issue in this case is whether there is an unacceptable risk of harm to the child if she is to spend time with the father unsupervised.

The evidence

The father’s initial application was filed on 29 January 2009 however he relied upon his amended initiating application filed on 16 June 2009. In that application he sought final orders providing for the parents to equally share the parental responsibility for the child and for the child to live with him from 4.30pm Thursday until 8.30am Wednesday each alternate week and with the mother at all other times.
In support of his application he relied on his affidavits filed on 16 June 2009 and by leave in court on 22 July 2009. He also relied on the affidavit of the paternal grandfather Mr W filed on 16 July 2009.
At the hearing the father also sought with leave of the court to rely on an affidavit of Mr Z who is a Senior Computer Forensic Examiner with AFS Computer Forensics. Mr Z was retained by both parties to prepare a report in relation to the contents of the computer that was owned by the paternal grandfather’s company. The report was annexed to this affidavit along with the letter of instructions signed by both solicitors.
This affidavit was provided only in facsimile form as Mr Z resides in Canberra and the original had not made it to the solicitor for the father in time for the hearing. The affidavit was also defective in that on the face of it the deponent did not appear to have affirmed or sworn the evidence in front of an appropriate witness. Ordinarily such affidavit would not be received by the court however Mr Boyd of counsel who appeared on behalf of the mother did not object to the reception of the affidavit but reserved his right to make submissions as to what weight should be given to it. Those submissions were ultimately made. I allowed the report to be relied upon but noted that if it is to be relied upon at a final hearing the affidavit will need to be re-sworn. Because there was no objection and because the report was originally intended to be relied upon by both parties the court allowed it to be relied upon by the father. The court was informed that although it was intended to be relied upon by both parties when it came time for payment the mother withdrew her instructions. The father paid for the report in full.
The mother filed her response on 23 March 2009 along with a Notice of Risk of Child Abuse. In support of her case she relied upon her affidavits filed 23 March 2009 and 26 June 2009.
During the hearing the counsel for the mother sought to rely upon an unsigned document entitled “proof of evidence” from a Detective Senior Constable W. This document was tendered and was given the marking “I1”. The court was informed that Detective W would not provide an affidavit sighting policy of the New South Wales Police. Whilst the court has heard mention of that policy in the past it has also experienced police officers providing affidavits. I am not sure if there is a definite policy of non provision or whether there is some confusion on the part of police officers as to whether they can provide evidence in support of parties in non criminal law matters. Further adding difficulties to the mother’s case was the inability of Detective W to be available at the Walcha Local Court on the day this matter was listed for hearing.
Whilst initially listed for final hearing, given neither party was ready for this matter to run as a final hearing the matter was allocated a spot in the circuit as an interim hearing. Interim hearings usually proceed “on the papers”. The court is reluctant to allow witnesses to give oral evidence in interim proceedings because of time constraints and in order to provide fairness to all parties and all matters of a like nature there needs to be some consistency in the approach to be adopted. Because Detective W was not available when the matter was listed for hearing the court did not have to decide whether to allow him to give oral evidence but I take this opportunity to indicate he may not have been given that opportunity other than maybe to adopt the proof of evidence. If the court had allowed him to give further evidence and to be cross examined there would have been a disadvantage to the father, in that, unless the court allowed all parties to give evidence orally the father’s case would have been compromised by not having an opportunity to give evidence to rebut it.
I did allow and had regard to the unsigned proof of evidence treating it akin to a business record although technically it would not fall into that category. In adopting this unusual course I had regard to the fact that this matter should proceed in as less adversarial manner as possible; that it was an interim hearing; that the matter proceeded on circuit in the town of Walcha because the larger city of Armidale’s court house was not available for use due to renovations; a telephone link was not available; and Mr Rugendyke appearing for the father did not object to its tender in itself but made submissions that weight should not be given to conclusions drawn as to who the perpetrator of a possible criminal offence was. In essence we had to “make do”. I took the view that the information contained in the proof of evidence was important to the mother’s case and along with the other police records that were tendered this document should be given some weight although conclusions drawn therein would not be.
A number of other documents were tendered which I have had regard they being: a customised report from New South Wales Police; the notes from the Armidale Family Support Service; the police notes created on 17 December 2008; an invoice from Country Capital Computers; and the curriculum vitae of the mother.

Legal principles

Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[1] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [2]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[1] Section 60CA
[2] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3]
[3] Section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[4] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[5]
[4] Section 61DA
[5] Section 61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.
This legislative approach must be followed in all parenting cases.[6]
[6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
In deciding what order allocating parental responsibility is to be made I will consider the factors set out in s.60CC.

Presumption of equal shared parental responsibility

The interim orders made 2 March 2009 provided for the parties to share equally the parental responsibility for the child. In the mother’s response she sought to have this order discharged but it was not argued at the hearing. The allegations made by the mother are serious and if found proved at a final hearing the court would need to consider whether it is appropriate to apply the presumption. Section 61DA(3) provides that the presumption should be applied in interim proceedings unless the court considers that it would not be appropriate for it to apply. Any application of the presumption in the interim is disregarded at a final hearing where the issue would be revisited.
I am satisfied that notwithstanding the serious allegations it is still appropriate to apply the presumption. There is no evidence of any abuse or family violence involving the child or other child at the hand of the father.

Consideration of equal time or substantial and significant time

Neither party is seeking in the interim for this child to live in an equal shared care arrangement. The father’s proposal would see the child spend substantial and significant time with him whereas the mother’s proposal would see the child’s time with him restricted. In determining this matter I have had regard to the considerations set out in s.60CC so far as they are relevant to this interim determination.

The primary considerations: s.60CC(2)

The benefit to the child of having a meaningful relationship with both of the child’s parents

This child is very young. Whilst I did not have the benefit of any evidence from a social science expert to assist in determining this interim arrangement the court can have regard to the generally accepted views of social scientists that regularly give evidence in the Family Law Courts. Such specialists tell the court that for children in this age bracket frequency and regularity are considered to be of more benefit than the length of time a very young child spends with the non-primary carer on each occasion. It is also important for such young children to not be away form their primary carer for a significant period of time.
There is no doubt that the mother has been the primary carer of this child all of her life.
Since separation the child has spent overnight time with the father. However since the orders that were made in February this year did not progress, as a result of the agreement to suspend the orders, the child’s opportunity to develop her relationship with the father in accordance with them has been compromised. Nevertheless it was submitted by Mr Boyd on behalf of the mother that her own application is not one that could be said to compromise the development of the child’s relationship with the father. She proposes regular time each week between the child and the father including overnight time. I am satisfied that the orders sought by the mother would ensure a continuation of the development of the relationship between daughter and father even if such time was supervised given her young age and given the need for regularity and frequency over any desirability for more time.
The father argues however that it is important to progress the relationship in accordance with the previous orders. I am satisfied that the parties had in their mind in February this year that this child was at a sufficient level of development to spend overnight time with the father for up to 4 nights in a fortnight. Whilst she is very young to spend lengthy periods of time away from her mother I am satisfied that the mother felt that such an arrangement was appropriate by virtue of her consent to such orders.
The orders proposed by both parties at least in the interim would ensure that this child’s relationship with the father would continue to be maintained and developed. Putting aside for one moment the serious concerns raised by the mother the father’s proposal however would provide the greater opportunity for this child to develop her relationship with him.

Whilst I am satisfied that the length of time the child spends with the father under the father’s proposal would not compromise her relationship with the mother it may be, given the child has not spent overnight time with the father now for four or five months, prudent to limit any time away from the mother to one overnight at a time until she is used to being with the father overnight.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

This is the significant consideration for determination. The mother expresses serious concern that the father has an interest in child pornography and wishes to ensure that this child is safe. The final orders sought by her indicate that she is open to the child having an unfettered relationship with the father if an assessment indicated the child’s safety would not be compromised.
The father denies the allegations.
Interim proceedings are difficult to determine because of the truncated nature of the hearings. Disputed evidence can not be tested when a matter proceeds on the papers.
In either August or September 2008, just after the parties separated the mother was lent a laptop computer to enable her to keep in touch with her friends via email. According to the mother the father always had possession and control of this laptop during their marriage and he also had an external hard drive that he kept in his possession at all times. The father denies being the sole user of this computer.
In December 2009 the father asked for the computer to be returned. Later that month the child spilt orange juice over the keyboard and the mother was not able to use it after that date.
On 20 February 2009 the mother was served with a Statement of Claim issued from the Local Court in Armidale from the paternal grandfather’s company [S] Pty Ltd. The Statement of Claim pleaded that the laptop was owned by [S] Pty Ltd; that the computer was lent to the mother in August 2008 with an understanding that it would be returned when it was needed to carry out company work; that a letter of demand was delivered asking for a response by 11 February 2009 and no response had been received; and that the computer had diagnostic and programming software installed on it which was needed to carry out some of the company’s work.
The mother claims she could not understand why the father or the paternal grandfather wanted the return of a four year old computer so urgently. She suspected that there must have been another reason because the business had access to other laptops and computers. She decided to have the computer hard drive downloaded on to an external hard drive to ensure that she became aware as to what was on the computer when she handed it back. On the 23 February she caused her father to deliver the computer to Country Capital Computers in Tamworth to have the laptop computer hard drive downloaded onto an external hard drive. There was no evidence from any employee of that business as to the details of the work they carried out or any evidence addressing the chain of custody of the computer.
The letter of instructions to AFS Computer Forensics signed by the solicitors for both parties provides a good summary of the issue surrounding the alleged contents of the lap top computer. The relevant part of that letter is as follows:
During the course of the proceedings, an issue has emerged in relation to material that the mother asserts that she located on an external hard drive, the contents of which she says were copied from the internal hard drive of a laptop computer which was the property of the parties. It is common ground that this material if it was in fact at any time prior to separation on the internal hard drive of the laptop computer, and if it has found its way there as a result of the activities of either party, is relevant to the overall proceedings.
Both parties live in or near the city of Armidale in the New England Region of New South Wales. The evidence of the mother is that she gave the laptop in question to her father, who took the computer to a business known as Country Capital Computers Pty Limited, which operates from Tamworth, which is approximately 115 kilometres from Armidale. The mother says that for approximately 2 months before the laptop was delivered to Country Capital Computers, the keyboard was not operating properly after the parties’ two year old daughter had spilt juice on it.
The mother’s evidence is that approximately two weeks after she gave the laptop to her father, she received back the laptop and external hard drive. She was informed that the external hard drive contained a copy of all of the contents of the internal hard drive from the laptop.
The laptop was subsequently delivered to Armidale Police. The police have made a copy of the “offending material” from the internal hard drive of the laptop. They have advised that the contents of the internal hard drive of the laptop have now been completely “wiped”. To date police have not laid any charges against our client or, so far as we are aware, any other person in relation to the material copied from the internal hard drive of the laptop computer.
The mother’s evidence is that after the external hard drive unit was returned to her, she began searching its contents. In the course of doing so she gives evidence that she discovered on the external hard drive a key logger program called “Blazing Tools Software”. The mother also indicated that she continued searching the contents of the internal hard drive which contained the file “BPK” which contained a file within it “DT”.
The mother assets that the files “BPK” and “DT” contained screen dumps showing various sites that the father had visited, including sites devoted to incest, child pornography, sex with animals and adult matchmaker chat rooms.
The husband denies that he ever used the laptop or accessed any sites of the sort suggested by the mother.
A subpoena was issued to Country Capital Computers for production of worksheets and any other relevant records as to the copying of the contents of the internal hard drive.

A representative of Country Capital Computers contacted the writer to advise that no such records existed and all that was produced in answer to the subpoena was a copy of the invoice for the work.
The report was compromised because the police had wiped the original hard drive making it impossible for the forensic examiner to determine the source of the downloaded software and the dumps allegedly found. The report suggests that much of what is alleged to have been downloaded could possibly be manipulated or downloaded without the knowledge of the user of the computer. On the face of the report is useful as to a general understanding of how the types of programmes found on the computer can be activated and manipulated but carries little if any weight as to the particular circumstances of this case.
The proof of evidence from Detective Senior Constable W indicates that no charges will be laid. The police officer indicated any prosecution would be unlikely to result in a conviction on the basis that the image that was located was captured by software as opposed to a person downloading it. Notwithstanding this Detective W expressed an opinion that the offensive material was likely to have been placed there and or stored there by the father. He says there were two “log ons” on the laptop computer one that appeared to be for the mother and one that appeared to be for the father. He says the image captured on 14 January 2008 at 7.01pm had been displayed under the log on that was purported to be for the father.
He says that on 13 March he spoke to the mother about the material obtained on the computer and as a result of that conversation he reported his concerns to the Department of Community Services.

I note that the Department has not investigated this matter. He says that on 17 March he requested the New South Wales Police Computer Forensic Branch technicians to attend the Armidale Station for an analysis of the laptop and hard drive. They did this on 1 Apirl 2009 and Detective W was present when the analysis occurred. He says that he would describe the material of being of a pornographic nature including child pornography and incest. There is no more detail than that. He says that the computer whilst ostensibly the property of the employer of the father was generally in the father’s possession and was not ordinarily used by anyone other than the father and occasionally the mother. This was denied by the father.
The father was careful not to accuse the mother of downloading the material herself but in his evidence he sought to establish that he was not responsible for any “offending” material on the computer.
In the affidavit of the father filed by leave in court on 22 July he alleged that if the annexures to the mother’s affidavit are correct somebody logged in on the laptop at 6.50am on the morning of Monday 14 January using the password “[B] Road” and remained logged in continuously until at least 7.28pm and also signed in to a hotmail account at 11.16am. His evidence is that he did three separate jobs on behalf of [S] Pty Ltd on that day. The first was at Tamworth. He says he left home to arrive at the company work shop at 7.00am and then left the work shop and drove to Tamworth arriving at approximately 9.00am. He says that he worked at the job until approximately 12 noon and then left to return to Armidale. He did a second job in Armidale and then a third job was at the [E] which are approximately 80 kilometres from Armidale. He returned to Armidale in the late afternoon. He annexed as Annexure ‘a’ to that affidavit a copy of the telephone account for [S] Pty Ltd showing the service between the 18 December 2007 and 17 January 2008. He gives evidence that he made telephone calls from Tamworth at 12.02pm Armidale at 1.23pm and 1.44pm and again 5.34pm and 6.44pm. Annexure ‘a’ also purports to show that he retrieved messages from his message bank in Taminda a suburb of Tamworth at 8.59am; in Tamworth at 11.58am; and in Armidale at 5.05pm.
The court has been invited to form the conclusion that it would not have been possible for him to have been the person logged in on that date. That determination however will have to wait until the final hearing.
The mother’s evidence is that she is not IT trained but is trained how to use a computer for work related activities and that she mainly uses a computer for basic internet and word processing. The solicitor for the father tendered the mother’s curriculum vitae and argued that a conclusion could be drawn that the mother was a lot more computer literate than she would have the court believe. The CV indicates that the mother is experienced in various internal intranet services and has computer skills to complete tasks within the office environment. She says that she has used programmes such as Microsoft Word and Excel, Lotus Notes, Outlook Express, Quickbooks and MYOB, Centrelink archive system and DEWR mainframe systems. She was also familiar with Wage easy (payroll system) and ABM (invoicing system). If this is the limit of the mother’s computer skills I am satisfied she is sufficiently experienced to use computers in the work environment and to access the internet and emails. The CV however does not lead to the conclusion that the mother is anymore experienced than that. This also will be a question for determination at a final hearing.
The father gave evidence that the mother has downloaded pornography in the past but this was denied by the mother although she gave evidence of making purchases from an adult shop.
Much of the content of the affidavits filed by both parties is not evidence but conclusions and opinions of the parties. In order to keep this judgment brief I merely indicate that I have not had regard to those parts of the affidavits. Any affidavits filed in the final hearing should however confine themselves to factual evidence.
If the father has accessed child pornography the court would be concerned for the welfare of the child if she was to spend unsupervised time with him until he could be assessed by an appropriate expert as to any potential he may have to act out on a sexual interest in children. The mother’s case as it currently stands does not appear very strong which no doubt is the reason why the police have not laid charges. The standard of proof in the criminal courts is however much higher than in the civil courts. In assessing whether this child is at an unacceptable risk this court will need to consider the evidence on the balance of probabilities but at what is known as the Briginshaw Test.[7]
[7] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; s.140 Evidence Act 1995 Cth; M v M (1988) 12 Fam LR 606
Being interim proceedings the court has not had an opportunity to determine the disputed evidence and therefore the level of application of that test needs to be lower.
In W v W (abuse allegations: unacceptable risk)[8] the Full Court reiterated the difficulty courts face in determining whether there is any unacceptable risk to a child. The court adopted the questions asked by Fogarty J in N & S[9] as a form of structure that may assist in any assessment of risk. His honour had said in that case:
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonable based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitable vary from case to case. But it is essential that questions like these be asked.
[8] (2006) 34 Fam LR 129
[9] (1995) 19 Fam LR 837 at 860
I indicated that the mother’s case does not, at least at this stage, appear very strong. This is because there is no evidence of any sexual abuse of the child; there is a suggestion by the police and the forensic examiner that what was downloaded on the computer may have arrived without the knowledge of the user; there is no actual evidence before the court as to the nature of the items alleged to have been viewed by the father – only conclusions drawn by others that the dumps included child pornography; there is no evidence of a chain of custody of the computer; the contents of the lap top have been wiped; and the evidence as to who had access to the computer when the parties were together is disputed. Consequently it is difficult to determine what risk if any is posed to the child if she spends unsupervised time with the father.
Notwithstanding that I am satisfied that it is appropriate to progress this matter cautiously. If there is some truth to the allegations the father’s time with the child would need to be monitored until he can be assessed by an appropriate expert to ascertain if he poses any risk to the child. If on the other hand the mother is responsible for fabricating any evidence of that alleged then the court would have to look at the appropriateness of her remaining the primary carer of the child. Neither of those considerations can be determined in the interim.
The mother has agreed to the paternal grandparents fulfilling the role of supervisors of any time the child spends with the father. I take it from that that she has confidence they will be able to fulfil that role and be protective of the child. The mother is also open to the child spending overnight time with the father provided a paternal grandparent is present. Such form of supervision is not supervision in its strictest sense but would provide some safe guards to the child and some comfort to the mother.
Because I am not able to determine, until the evidence is more properly tested, the level of risk, if any, to this child it is appropriate that the paternal grandmother and/or paternal grandfather be present when the child is spending time with the father.

The additional considerations: s.60CC (3)

Many of the additional considerations can not be properly determined at the interim stage because of the lack of proper evidence and the many disputed facts between the parties.
I have however read the reports from the Armidale Family Support Service. These notes show that the child has a close and loving relationship with the father and that he appears to relate well to her and acted appropriately at all times. I am satisfied that she has a good relationship him.
There is no question as to the relationship between child and mother.
The child’s time with the father since the orders made in March were suspended has been limited. I am satisfied that they need to increase in order to maintain and develop the relationship between the child and father. Whilst the father would like his time to return to that provided for in the original consent orders I am not satisfied that that would be in the best interests of the child at this stage.
It is appropriate that overnight time resume and that there be some time each week. Because I am satisfied that until the matter can be determined on a final basis the time between child and father needs to be in the presence of either of the paternal grandparents I consider an appropriate level of time to be overnight each alternate weekend from 9am Saturday to 5pm Sunday and overnight Thursday in the other week from the conclusion of day care on the Thursday to the commencement of day care on the Friday morning.
Whilst this is somewhat less than the amount of time the child was to spend with the father pursuant to the original orders there has now been a number of months when she has not had the benefit of that overnight time. To move directly into three consecutive overnights may be too much for this child. The orders I will make will ensure the child sees the father every week and provides her with the opportunity to get used to overnight time with him again. Because the grandparents will also be there the child will be able to develop her relationship with them as well. Consequently it is not necessary to make separate orders for the child to spend time with them.
I do not propose to restrict the periods of time to the grandparents’ home but if the father is to spend time with the child at his home at least one of his parents will have to be there the whole time.
For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of LAPTHORN FM

Associate: Helen Drysdale

Date: 4 August 2009