WHITMAN & BURR

[2011] FamCA 199

FAMILY COURT OF AUSTRALIA

WHITMAN & BURR [2011] FamCA 199

FAMILY LAW – CHILDREN – BEST INTERESTS – Allegations of sexual abuse of child by the father – where child subsequently denied abuse – where investigations by child protection authorities determined no abuse had occurred – whether father unacceptable risk to the child – where mother has repeatedly encouraged child to make false disclosures against the father – where mother has previously failed to return the child to the father – whether mother unacceptable risk to the child – child to remain living with father – where all time with mother to be supervised 

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Telecommunications (Interception and Access) Act 1979 (Cth)

Family Law Rules 2004 (Cth)

B & B [1993] FLC 92-357
B and B (1988) FLC 91-978
Byrne & Byrne (2003) FLC 93-125)
C & J (1996) FLC 92-697
In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655
In the Marriage of Rice & Asplund (1979) FLC 90-725
M and M (1988) FLC 91-979
M v M (1988) 166 CLR 69
McCoy v Wessex (2007) 38 Fam LR 513
Miller v Harrington (2008) FLC 93-383
Miller v TCN Channel Nine Pty Ltd (1986) 67 ALR 321
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
RG v JR [2006] FamCA 293

APPLICANT:  Ms Burr

RESPONDENT:  Mr Whitman

FILE NUMBER:  BRC 6170 of 2007

DATE DELIVERED: 28 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 & 17 December 2010

REPRESENTATION

THE APPLICANT: Ms Burr in person

THE RESPONDENT: Mr Whitman in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr George

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

Orders

UPON NOTING that the court has found that the presumption of equal shared parental responsibility is rebutted by reason of the best interests of the child D (‘the child’) born … December, 1997

IT IS ORDERED THAT:

1. All previous orders, in so far as they apply to D, are discharged, and in lieu, it is ordered as follows:

Parental Responsibility

1. The father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:

   a.Use his best endeavours to advise the mother in writing of the decision intended to be made;

   b.Seek the mother’s written response in relation thereto;

   c.Consider, by reference to the best interests of the child, any such response prior to making any such decision;

   d.Advise the mother in writing as soon as reasonably practicable of his ultimate decision.

2. Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:

   a.Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;

   b.Any school which the child attends;

   c.The Director of any extra-curricular school or other activity in which the child is involved,

   to provide to the other party such information as might reasonably be required about the child together with any report, assessment or other such document provided to a parent in respect of the child.

3. Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.

4. Each of the parties shall advise the other and keep the other advised of:

   a.Their residential address;

   b.Telephone numbers at which they and the child can be contacted;

   c.Any email address to which the child can have access,

   and shall notify any changes in any such details within 48 hours.

5. The father shall do all such things as might be required to have the child attend such counselling as might from time to time be recommended by her current counsellor, Ms P, psychologist, including any further or other counselling with such other appropriately qualified counsellor whom she might recommend.

Live With and Time

1. The child shall live with the father.

2. The child shall spend time with the mother as follows:

   a.Supervised by the W Contact Centre for not less than two hours, or for such longer duration to a maximum of 8 hours that the said Centre might be able to accommodate, on either Saturday or Sunday each alternate week;

   b.Commencing on the first Saturday or Sunday upon which the said Contact Centre can accommodate each such period of time and fortnightly thereafter.

3. The costs of supervision of time in accordance with these Orders shall be borne equally by the parties.

Communication and Restrictions

1. The mother is at liberty to contact the child by telephone not more than twice per week on days suitable to each but not before 8.30am and not after 8.30pm but otherwise the said restrictions shall remain until D turns 16.

2. The mother shall:

   a.Take all such steps as are necessary so as to ensure that her fiancé, Mr H has no oral or written contact or communication with D;

   b.Not contact D whether by telephone, orally, by letter or e-mail save during any period of time previously provided for in these orders.

3. The Independent Children’s Lawyer shall provide a copy of these Orders and the Reasons for Judgment in this matter to:

   a.Ms P and such other counsellor who she might recommend;

   b.The Director of the W Contact Centre or such other Contact Centre or individual supervisor appointed by them or agreed in accordance with these Orders;

   c.The Director-General of the Department of Communities (Child Safety) or such other authorised person within the Department as the Director-General might direct,

   and the publication of same to those individuals is approved pursuant to s 121(9)(g) of the Family Law Act 1975 but no other publication of the Orders and/or Reasons of Judgment, or any other account of the proceedings by the parties, is approved.

4. The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders or the hearing of any appeal.

IT IS FURTHER ORDERED THAT:

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. Pursuant to s 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 details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC6170 of 2007

Ms Burr

Applicant

AND

Mr Whitman

Respondent

REASONS FOR JUDGMENT

1. Fundamental to an understanding of this parenting dispute in respect of thirteen year old D (….12.97) is the history of her parent’s dispute that now finds expression in these proceedings.

2. Section 69ZX(3) of the Family Law Act 1975 (Cth) (the Act) plays a crucial role in the decision to be made in this case. The Independent Children’s Lawyer (ICL) relies upon three earlier orders and sets of reasons by me (31.3.09, 3.11.09 and 10.2.10) and part of the transcript of proceedings on 10.2.10. That issue will be looked at in more detail below.

3. By way of overview the following can be said:

   ·These parties have been litigating about their children for three and a half years, first in the Federal Magistrates Court and, since the end of 2007, in this Court;

   ·Five earlier sets of reasons have been delivered (19.9.08; 31.3.09; 16.9.09; 3.11.09 and 10.2.10);

   ·Two recovery orders have been made upon the application by the father the first (on 19.9.08) in respect of the parties’ elder child C (born ….11.94); the second in respect of D (decided on 10.2.10);

   ·A trial in respect of parenting issues was held over three days (10-12 March 2009) and reasons delivered on 31 March 2009;

   ·The issues underlying these proceedings are effectively identical to those underlying each and all of the earlier proceedings;

   ·Those issues emanate from an asserted implacable and unshakeable belief on the part of the mother (shared by her partner Mr H) that D has been sexually abused by her father. Identical allegations had been made in respect of the parties’ other child C, and were the subject of the earlier trial.

4. The earlier trial proceedings should be seen, ideally, as having brought to an end litigation in respect of parenting issues (s 60CC(1)) – noting s 65D(2); the In the Marriage of Rice & Asplund (1979) FLC 90-725; Miller v Harrington (2008) FLC 93-383.

5. Here, two changes of significance have occurred. First, after the trial, C (then aged not yet sixteen) made his way to Melbourne. It is alleged by the mother that he did so of his own volition and without any assistance – direct or indirect – from her or anyone acting either in concert with her or at her behest.

6. Secondly, in February 2010, on the first occasion of unsupervised time between D and the mother pursuant to the orders made after the trial in March 2009, D was retained by the mother. Fresh allegations were made that she had been sexually abused by her father. In turn, those allegations are said to have been based on further ‘disclosures’ by D. A significant distinction will be drawn in these Reasons between things which the mother reports D as having said and behaviours which the mother says D has exhibited when with her, and the things said by D and the observations made of her when not with the mother and, in particular things said, and observations made, by D’s treating therapist Ms P and by the single expert reporter, Mr M.

7. Those two central matters cannot, in my view, be properly examined here without setting out in some detail the history of this matter. I also consider the findings made in earlier proceedings are central to that determination. I propose to have regard to findings made by me in those earlier proceedings (and to the transcript). I consider the Act permits me to do so for reasons which I will now elaborate.

Section 69ZX(3) – Reliance on Earlier Findings

1. Section 69ZX(3) of the Family Law Act 1975 (Cth) (“The Act”) provides that:

   The Court may, in child-related proceedings

   a)receive into evidence the transcript of evidence in any other proceedings before:

   (i)the court; or

   (ii)another court; or

   (iii)a tribunal;

   and draw any conclusions of fact from that transcript that it thinks proper; and

   b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a) (i) to (iii).

2. The Explanatory Memorandum to the Bill introducing that section provides:

   29. Subsection 69ZX(3) inserts a modified version of section 86 of the Native Title Act 1993. It provides that the court may, in child-related proceedings, receive into evidence the transcript of evidence in any other proceedings before a court or tribunal and draw any conclusions of fact from the transcript that it thinks proper. The court may also adopt any recommendation, finding, decision or judgment of any court or tribunal.

   30. This amendment implements recommendation 5 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The Report found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child pursuant to subsection 68F(2). It suggested that, in the case of an Aboriginal or Torres Strait Island child, such an approach would assist a court in informing itself of the content of the relevant kinship obligations and child-rearing practices wherever such reliable information exists. In this regard, the provision is relevant to new section 61F (inserted by item 14 in Schedule 1) which requires the court to have regard to the kinship obligations and child-rearing practices that are relevant to an Aboriginal or Torres Strait Islander child.

   31. This provision does not apply only to proceedings concerning an Aboriginal or Torres Strait Islander child. It applies to all child-related proceedings. In this respect, the provision implements recommendation 48 of the LACA Report. The Committee was of the view that extending the provision to all children would be helpful and may assist in addressing issues surrounding claims of family violence and abuse. The note to subsection 69ZX(3) clarifies that the subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.

3. Section 69ZX(3) is contained within Division 12A of the Act, a Division which broadens considerably the ability of the Court to receive, and apply weight to, evidence in child-related proceedings that may otherwise be inadmissible. (See e.g., s 69ZN(7); s 69ZT(1) and s 69ZX itself).

4. Subparagraph (a) of s 69ZX(3) appears on its face unrestrained in terms of the conclusions of fact that may be drawn from transcripts in other proceedings. So, too, the permission afforded by subparagraph (b) refers to the adoption of “any” of the named matters including, relevant to this case, any “finding” or “judgment” of “any court”. Again, the language is permissive and unrestrained.

5. I am, in effect, invited by all of the parties to take account of findings and decisions made by earlier judges of this court (albeit that the parties have different emphases and urge differing effects).

6. The section can, in my view, be seen to have particular utility in the case such as the present where historical issues are mirrored in current issues before the Court and where those issues are directly relevant to the best interests of the children – the specific focus of Division 12A of the Act.

7. It is to be noted that within the Explanatory Memorandum reference is made to the underlying intention of the section being ‘helpful and may assist in addressing issues thrown in claims of family violence and abuse’. It seems to me that the section is specifically intended to prevent the potential for direct or indirect harm to children arising from allegations of, for example, violence and abuse, being pored over multiple times.

8. In my view the section has particular application to the facts and circumstances of this case; the allegations made here are virtually identical to those made in the earlier proceedings and, it might be said, arise in a virtually identical way. The application of the section is particularly helpful in putting D’s predicament in perspective; the allegations made against her father do not arise in a vacuum but, rather, can be seen to be a component of a litany of allegations preceding the present group.

9. Subparagraph (a) of s 69ZX(3) permits of the Court receiving into evidence transcript from courts which include ‘the court’. Subparagraph (b) of that section refers to the adoption of a finding or recommendation of ‘any court’ including, relevantly, ‘the court’. I consider that the section specifically permits me to incorporate my own findings made in earlier proceedings before me.

10. Further reference will, then, be made to specific findings from earlier proceedings before me. It is important at the outset, to set out here the central findings made after the March 2009 trial which provide the essential background to the current proceedings. They are:

    Summary of Central Findings and Orders

    Orders

    61.I propose to make orders that both children live with their father and, as earlier indicated, him having the ultimate decision in respect of parental responsibility.

    62.The issue of time with the mother is more complex.  Opinions from each of the single experts whose evidence is before me are consistent: first, that the mother’s time with the children should be supervised and, secondly, that [Mr H] should not play any part in her time with them.

    63.Those opinions are also consistent, though, that the mother has a loving relationship with each child, and they with her, and that the children are closely attached to her and miss her.  Similarly, there is clear evidence that the children want to spend time with their mother.  Indeed, if [C’s] wishes are to be taken at face value, he is adamant he wants to live with his mother. 

    64.Supervision is, of course, inherently restrictive of the nature and extent of the relationship that children can have with their parents.  In particular, the thought of the relationship between a 15-year-old boy and his mother being confined to a contact centre is one with which I am entirely uncomfortable.  It also does not, at first blush, sit easily with the notion that such an order is in [C’s] best interests. 

    65.Ultimately, however, for the reasons which follow, I am persuaded that time should be supervised.  I am not, however, persuaded that it should continue indefinitely as is effectively advocated for by both the ICL and the father.

    66.I accept the assessments of [Mr H] by both [the reporting psychiatrist] [Dr N] and [single expert report writer] [Mr M].  The submission by the mother in final address that [Dr N] “didn’t have a problem” with [Mr H] is, in my view, and with respect to the mother, not to the point.  It is also indicative, in my view, of the mother’s failure to appreciate the broader thrust of [Dr N’s] views. The doctor ultimately assesses [Mr H] as a malign influence on the children and, for reasons which will emerge, I agree.  I will make orders designed to ensure that the children are protected from his influence.

    Findings

    67.      The central findings I make in this case are as follows:

    1)[D] is not at risk of sexual harm in the care of her father.

    2)[C] is not at risk of physical harm in the care of his father.

    3)[C] and [D] are at a slight risk of emotional harm in the care of their father by reason of a somewhat compromised capacity on his part (and on the part of his father) to isolate the children from adult issues.  But, I accept the tenor of the children’s statements to [Mr M]. During the course of proceedings in this court, I consider that his capacity in that respect has significantly improved.

    4)[C] and [D] are at a very high risk of emotional harm in the care of their mother by reason of what I find is likely to be a continuing enmeshed relationship between she and the children (and [C] in particular); an incapacity to isolate the children (and [C] in particular) from issues relating to her emotional and psychological health (and particularly to statements by her about each) and an incapacity to isolate the children (and [C] in particular) from adult issues.

    5)Further, both children are at a very high risk of emotional harm at the hands of their mother by reason of a continued inculcation of a belief on her part that [D] has been the subject of sexual harm at her father’s hands, [C] the subject of physical harm and both children the subject of emotional harm, together with her past, and likely future, behaviours in and about seeking to obtain “disclosures” from either child relating to any such harm.

    6)The children are at a very high risk of emotional harm from [Mr H] by reason of his unrestrained expression of hatred toward one of their primary loved objects, namely their father; and [Mr H’s] past, and likely future, inculcation and encouragement of the beliefs referred to in the earlier paragraph.

    7)Although the mother was the historical primary carer of the children, they have been in the primary care of the father for some 16 months.  [D] is well settled in his care.  [C’s] school performance has improved during that time and [D’s] school reports (in circumstances where, in a small school, the principal has been “keeping an eye” on her) are that there are no concerns about her presentation, demeanour or conduct. 

    8)Despite [C] running away from his father’s home on as many as five occasions (most recently in September 2008) and having written letters (copied to his mother) to the Independent Childrens Lawyer expressing negativity about his father and an ardent desire to return to his mother’s care, he is, in fact, well settled in his father’s home and his relationship with his father has improved over time.

    9)[C’s] expressed wish to live with his mother (and [Mr H]) and his expressed antipathy towards his father and his father’s care of him, should not, despite his age, be accepted at face value.

    10)[C’s] letters, and his running away from home, are an expression of a troubled adolescent, significantly scarred emotionally and psychologically by his parents’ conflict and reinforced by actions of his mother and [Mr H].

    11)Furthermore, [C’s] actions are, most likely, the overt expression of a deep – and highly troubling – psychological issue clearly identified by [Dr N].

    12)[C] is receiving counselling which has been significantly beneficial.  He is highly likely to need on-going counselling into the future.  The father has in the past, and will likely continue to, support such counselling.

    13)By reason, principally, of the matters earlier enumerated the mother has an impaired capacity to provide adequately for the totality of the children’s psychological and emotional needs.  The father’s capacity in that respect is somewhat impaired, but not to the extent of the mother’s.  [Mr H] has little capacity to provide for the children’s psychological or emotional needs.

    14)So, too, the involvement of the children in the parents’ conflict, the inability or unwillingness to draw boundaries around adult issues and failure to ensure that the children are not involved in, or affected by same and the lack of insight into the psychological needs of the children speak poorly of the responsibilities of parenthood exhibited by the mother and [Mr H].

    15)The willingness and capacity of the mother to support a close and continuing relationship between the children and their father is, on her own case, dependant ultimately on decisions being reached by the children.  Whilst the mother sees this as being child-focussed, I see it as placing an intolerable burden upon the children and, ultimately, as an abrogation of adult responsibilities.  In stark contrast to facilitating a “close and continuing relationship” between the children and their father, her attitude will, as I find, potentially sow – or risk sowing – the seeds of the effective destruction of that relationship.

    16)There is no realistic prospect that the mother’s fiancé, [Mr H], will be supportive of the children having a close and continuing relationship with their father.

    17)The father is more likely to actively ensure that the children see their mother.  This is, I think, more likely to come from an acceptance of what is plainly their desire rather than a sincerely motivated independent parenting stance on his part, consistent with his insight into their best interests.

    18)Ultimately, I consider that the prospects of the parents achieving, or getting close to achieving, what the children each clearly want and need (and what the Act desires) – namely a meaningful, healthy co-parenting relationship – are virtually non-existent.

    19)I will make findings about supervision of time later in these reasons.

1. In those earlier reasons reference was made to the decision of the High Court in M v M (1988) 166 CLR 69 and the point was made that those parenting proceedings ‘are not an enquiry into whether sexual harm did or did not occur’ but, rather, their purpose is to ‘fashion orders in accordance with findings as to the children’s best interests’ in respect of which ‘allegations of sexual harm will…be a crucial component…’.

2. In the instant proceedings the father makes submissions with respect to M v M and makes submissions that this Court should make a specific finding that he has not abused his daughter. He advances a number of reasons why that should occur. The reasons advanced by the father have validity and are understandable. This issue will be discussed at some length later in these reasons.

3. It also should be noted that D is now thirteen. She is an older and more mature child then the one which presented to the experts (and investigating officers of the Department and police) two years ago. I propose to attach considerable significance to ‘D’s views’ and, in doing so, the sharp distinction earlier referred to between what D is alleged to have said to her mother and what D has said to other persons including, in particular, experts, is very important.

4. It needs to be noted that an extensive investigation occurred in the lead up to the earlier trial proceedings. That investigation is outlined in some detail in my earlier trial Reasons.

5. I also specifically rely in these reasons upon the observations there made [121ff] about the mother’s self-representation. The mother also represented herself in these proceedings and prepared her own material for them. The comments made in those earlier reasons with respect to the mother’s self-representation apply equally here. I said there that it seemed to me that the mother was:

   126.… a highly stressed person who, on many occasions, struggled to exhibit insight into the ramifications of what was being discussed. Her failure (as I find) to appreciate the potential for emotional harm in sharing thoughts of self harm with her adolescent son is a particularly acute example to which further reference will be made below.

6. I specifically found that:

   130.I have no hesitation in finding that both the mother and [Mr H] have no difficulty at all in assuming the worst of anything said by either child, in so far as it reflects – or might reflect – adversely on the father.

   131.Moreover, I consider that their pre-existing personalities and antipathy towards the father are highly likely to lead to an inaccurate recall of what was said by either child, or alternatively, a self serving account in that respect. 

   132.Both [Mr H] and the mother exhibit a barely concealed hatred of the father exemplified perhaps most poignantly by [Mr H’s] vitriolic and unabashed statement that he could not see any good whatsoever at all in the father – “absolutely none” – and that, in respect to any good qualities, “if he has any, I haven’t seen them”.

   133.I also consider that each of the mother and [Mr H] have a desire – probably unconscious, but I am not completely convinced about that – to twist statements made by others, including the children so as to paint an adverse picture of the father.  A good example was provided by the mother in the witness box.  The mother was anxious to tender before me a letter from the Department of Child Safety which ultimately became Exhibit M8.  The mother was anxious to indicate that harm had been substantiated by the Department against the father.  The letter is dated 10 June 2008 and relevantly provides:-

   “The […] Child Safety Service Centre assessed the concerns in relation to your children [C] and [D].  As part of the assessment of the notified concerns Departmental workers spoke with you on 21 February 2008 and 25 February 2008.  Departmental workers also spoke with your children [C] and [D], as well as their father… As discussed with you on 21 February 2008 the outcome of this assessment is SUBSTANTIATED child not in need of protection, for your children [C] and [D].” [Bold in original]

   134.Contrary to the mother’s assertion, that was not the Department’s substantiation of harm of the children at the hands of the father, but, rather, a substantiation of harm (emotional harm) at the hands of the mother. 

   135.[Ms B] said in the witness box that “there was nothing to substantiate claims of sexual or physical harm but rather there was evidence to suggest that [C] had been spoken to inappropriately by the mother (and probably [Mr H]) and that emotional harm was substantiated due to the distress this had caused him.”  [Ms B] also said in evidence that “[The mother] did not comprehend the impact of (emotional) harm upon the children.”

   136.With this assessment I respectfully agree. As earlier indicated, it is entirely consistent with my impressions of her and her evidence during the course of the hearing.

7. I also referred in those earlier reasons to the mother’s capacity to ‘either distort evidence or alternatively to present it (whether consciously or unconsciously) in a self-serving way’. I gave as an example reference to the evidence of Ms A who was the supervisor of the time between the mother and D.

8. It needs to be appreciated that, at least in terms of allegations of abuse, that it was C who was the primary focus of the earlier trial. However, in light of the comments made by D to which reference will be made below, it is important to bear in mind that in those earlier reasons I said:

   146.The younger of these two children, [D], seems, on all of the evidence, to have been less affected by the sorts of pressures to which [C] made reference to [Dr N].  However, I reiterate the evidence concerning the pressure put upon her in respect of interviews conducted by both [Mr H] and the mother.

   147.I am very concerned about the impact this has had on [D] generally.  In the context of the allegations of sexual abuse, I consider it highly likely that [D] too has “a perceived need to remain aligned with”(her) mother.”  I consider it likely that this has impacted upon statements made by her about abuse at varying times. 

9. As I have earlier indicated, I consider it vital to record the sharp distinction between statements made by D to her mother and statements made to other people, including, importantly, her therapist. I specifically rely upon these findings made by me in the earlier trial reasons:

   148.I am not convinced that I can place any weight whatsoever on evidence by either the mother or [Mr H] as to statements allegedly made by [D].

   149.I consider that any “disclosures” made by [D] are highly likely to have been influenced by leading questions (and leading behaviour) on the part of the mother and [Mr H] and to have been influenced significantly by [D] not only overhearing conversations between the two of them about such matters, but also being exposed to highly negative comments, and most likely specific assertions, made by them about the father.

   …

   151.The evidence of the mother and [Mr H] is inconsistent and unreliable with respect to things allegedly said by [D] about sexual abuse.

   …

   155.[D] has exhibited no behaviours, nor made any statements, that have caused concern to her school who have been closely monitoring her (as they do according to the evidence of the principal with all children who are experiencing conflict at home).

10. As I have indicated, it is also important, in giving proper context to the current proceedings, that a thorough investigation took place at the hands of each of the Department of Child Safety and the Police in respect of earlier allegations made by the mother. In relation to those investigations, I said:

    154.The Department and police have investigated the matter on more than one occasion and have not substantiated any concerns of harm in respect of alleged sexual abuse by the father.

11. I apply each and all of the findings I have detailed above, as the following Reasons will articulate, to the instant proceedings. They each remain as applicable now as, in my view, they were then.

Parties’ Proposals

The ICL

1. The ICL made no specific submissions in relation to the orders which ought to be made. Mr George, counsel for the ICL confirmed that there is currently an order placing C in the father’s care and as such, no other orders ought to be made in relation to C. Similarly, neither the father nor the mother seek orders directly in relation to C.

The Father

1. On 3 December 2010, the father filed a document which outlined the orders he sought. Amongst other things, the father proposes that:

   a)The mother, or any agent acting on her behalf, be restrained from making any complaint in relation to the father, C or D to ‘any child protection agency or police force without the leave of the Family Court’;

   b)‘[Mr H] is restrained from communicating with, approaching or remaining in a place with the children, father and paternal grand father whom are protected persons under section 68B(1)’;

   c)‘The mother shall take all such steps as are necessary so as to ensure that [Mr H] has no oral contact or communication with either of the children’.

2. The father also outlined the orders he sought specifically in relation to D which included:

   a)Discharging of the Orders made 31 March 2009, excluding Orders 1 through 6 and 11;

   b)That D spend supervised time with her mother at a contact centre for a period of two hours fortnightly on either Saturday or Sunday and that the mother bear the costs of and incidental to such supervision;

   c)That when [D] reaches 16 years of age, the mother may ‘arrange to undergo biannual assessments by [Dr N] to ascertain whether she has demonstrated a clear and consistent pattern of respecting [D’s] rights…’;

   d)That following such an assessment and the subsequent compilation of a report by Dr N, the mother may apply to the Court seeking time with D on ‘each alternate Saturday from 9:00am to 5:00pm’ with the changeover to be at the ‘father’s discretion’. The father does not specify whether or not such time will be supervised;

   e)‘All communication and time [between D] and [C] or any member of the maternal extended family shall be under the supervision of the father’.

3. In addition to these written proposals, the father made oral submissions at the conclusion of the proceedings. During these submissions, the father expressed concern regarding the conduct of the W Contact Centre which had supervised time between the mother and D. In particular, the father stated that inappropriate comments had been made and the Centre ‘provided a cover’ for the mother when she took D to the police in February 2010. As such, the father submitted that supervision, if ordered, ought to take place at a different Contact Centre.

The Mother

1. In a Reply filed 31 May 2010, the mother set out the orders she sought in relation to both C and D. In relation to D, the mother proposed that she be placed primarily in her care and to have ‘psychological aid as necessary and until it is determined that [D] no longer needs it’. The mother also sought an order that any time between D and both her father and paternal grandfather be supervised with time occurring only if D ‘approves’.

2. Alternatively, the mother sought orders that D live with her father during the school term and spend the entirety of the school holidays with her mother. The alternative orders proposed by the mother also included an order that D be able to phone her mother whenever she wants and that the mother have the ‘privilege’ of calling D ‘once a week without any interference or lack of privacy’. The mother also proposed an order to the effect that ‘I be granted ongoing contact with [D] on alternate weekends on a regular basis to help her with a challenging and confusing time in her life’.

3. The mother also outlined another alternative set of orders specifying that ‘[D] be sent to live with her brother and maternal grandmother in Victoria under the care of her maternal grandmother…’.

4. Like the father, the mother also made oral submissions outlining the orders she sought in relation to D.

5. The mother proposed an order that D be placed in the care of her maternal grandmother for a period of between 12 – 24 months. The mother submitted that such an order ought to be made because ‘every time I see and speak to D she goes on and on with a new allegation’ and apparently time away from both of her parents will allow D to ‘clear her head’.

6. The mother also proposed an order that her fiancé, Mr H, not be restricted in seeing either C or D.

Applicable Principles

1. I have previously extensively considered the principles applicable to this case. In the interests of expediency, I will make it clear that I specifically rely upon, and repeat the contents of paragraphs 23 – 32 and 46 – 60 of the Reasons for Judgment delivered on 31 March 2009.

Corruption, Conspiracy and Serious Misconduct

1. Aside from the allegations made by the mother against the father, the mother also made a particularly serious allegation of corruption against the father’s new partner. According to the mother, the father’s partner ‘interfered’ with a complaint lodged by the mother with the Department of Communities (Child Safety) (the Department).

2. In the mother’s affidavit, filed 11 October 2010, she asserts:

   [The father] has claimed that his girlfriend is a councilor (sic) who works with children. Whilst this may be the case, the following must also be considered.

   (a)His girlfriends (sic) name is [Ms S].

   (b)She works for DoCS in [W], as a child protection investigator. These are the same offices where the reports on both [D] and [C] were generated. (Or ignored as the case of [C] testifies within documents from DHS).

   (c)She is passing along personal and confidential information to [the father] regarding [Mr H]. The subpoena that [the father] submitted to the court had information that [the father] was not privvy (sic) to and could only have come from her.

   (d)[Ms S] has worked within the [W] region for a long time, and would therefore know a lot of the police also stationed here. This is also true of the councillors (sic) working within the region and I believe [Ms P], thus she could have possibly influenced these reports as well.

   (e)As it turns out, C also knows [Ms S], so the question has to be asked, how long has [the father] known her, and how long has she been helping him?

   I find that I have no option but to ask for all the reports generated by DoCS, the Police in [W], and councillors (sic) be dismissed as evidance (sic), and regenerated only by people who are certain not to know [Ms S] or be influenced by  her or a mistrial will have to be called for.

3. When I asked the mother what, as she saw them, were the issues in these proceedings, the mother stated that she believed that Ms S had interfered ‘in regards to DHS and possibly the police and their report’. When I asked the mother if she was alleging ‘some form of corruption’ on the part of Ms S, the mother stated ‘some corruption, or inter-office helping hand’. When I sought to clarify the allegation made by the mother, the following interchange took place:

   HIS HONOUR: Let’s be clear. You’re suggesting that [Ms S] has somehow interfered so as to prevent an appropriate investigation being carried out with respect to the allegations…

   [MS BURR]: The allegations made in February.

   HIS HONOUR:…that you raise in February. And she’s interfered in a way that prevented either the Department of Child Safety or the Police investigating those allegations properly.

   [MS BURR]: Yes, your Honour.

   HIS HONOUR: Well that’s an assertion of corruption…

   [MS BURR]: Yes, your Honour.

4. In light of the very serious allegations made by the mother against Ms S and the fact that the father applied to have Ms S act as McKenzie Friend, I asked Ms S to give evidence as the first witness in the proceedings so as to assist the Court and sought to restrict the mother’s cross-examination of Ms S, at that time to matters relevant to the allegation that Ms S had engaged in corruption.

5. Relevant to the mother’s central allegation, Ms S repeatedly testified that she had ‘never’ been employed by the Department of Communities (Child Safety) in any capacity. Ms S also stated that she had never worked with any of the people related to the case, including the ICL, Mr M or Ms P. Despite cross-examining Ms S for over thirty minutes, the mother failed to put any evidence to the witness which could, in any way at all, sustain any part of her allegation that Ms S had engaged in very serious corruption. In light of this, I determined that:

   … although the mother has in these proceedings asserted against the father’s partner that she has engaged in corruption and/or serious criminal activities, she has not put before the Court one single, solitary scintilla of evidence nor has she drawn from the witness or put to the witness one single, solitary scintilla of information or evidence that would suggest that this witness is either corrupt or has committed a criminal offence. Indeed, the very premise upon which the allegation is made, namely that the witness works for or has worked for…the Department of Communities (Child Safety) has been vehemently denied by the witness and the mother  has put not one solitary skerrick of evidence before the Court to suggest that evidence is false.

6. Ms S was subsequently permitted to continue in her role as McKenzie Friend for the father.

Admissibility of Evidence

1. On the first day of the proceedings, the father sought to rely upon transcripts of phone calls between he and the mother which he had recorded using a computer software program. The father had annexed the transcripts to an affidavit filed 3 December 2010 and sought to read that affidavit. I reserved judgment on their admissibility overnight to allow me to consider the relevant legislation and authorities.

2. When Court resumed the following day, I dealt with the admissibility of the transcripts. I had reference to s 6(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) which states:

   For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

3. Without the assistance of expert evidence regarding the means by which the father had recorded the phone calls, I was unable to determine whether or not the recordings breached the Telecommunications (Interception and Access) Act 1979 (Cth). (See Miller v TCN Channel Nine Pty Ltd (1986) 67 ALR 321; Byrne & Byrne (2003) FLC 93-125).

4. The transcripts, in any event, were significantly dated and, in my view, of minimal probative value to the central issues in these parenting proceedings. I determined that I was not assisted by the transcripts in ultimately determining the best interests of D and thus, pursuant to s 135 of the Evidence Act 1995 (Cth), the affidavit of the father filed 3 December 2010 was excluded.

Events Since Last Judgment

C and the Alleged Mystery Surrounding His Running Away

1. On or about 2 September 2009, C ran away from his father’s house and travelled to Bendigo, Victoria where he entered the care of his maternal grandmother. Whilst the chronology of events surrounding C’s running away are unclear, I have dealt with this incident in detail in two preceding judgments, including on 16 September 2009 when I made a Recovery Order in relation to C.

2. For efficiency and convenience, I will refer to the ex tempore reasons I delivered in relation to that Recovery Order in which I described the event in the following manner:

   4.It appears that [C] left his father’s care, and took himself into the care of a person named as the second respondent to these proceedings, [Ms Rapt]. 

   5.[Ms Rapt] appears before me today, and indicates that [C] came into her care on 2 September 2009, and left shortly thereafter.  It is said that he left after a visit from the police, during which the police indicated to him that he would need to return to his father.

   6.In the proceedings before me today, the mother tells me that [C] has somehow absented himself from Queensland, and, somehow, found his own way to rural Victoria.  She says that he is currently living with her mother, [Ms J Burr], at [K], which I am told is in central Victoria, some distance from Melbourne. 

   7.How [C] got there is, according to the mother, a mystery.  The mother says that [C] is safe there, and that her mother is prepared to care for him, and that he does not wish to return. 

1. Little more has been revealed since September 2009 in respect of how C found his way to his grandmother’s home. It is variously asserted that a father of one of C’s friends or a ‘friend of a friend’ drove C to Victoria in his truck. It seems to be accepted that regardless of who drove C to Victoria, his mode of transport was a semi-trailer or like vehicle.

2. The mother continues to assert that she had no knowledge of C running away nor did she play any role in facilitating his leaving Queensland. It might be noted that the mother’s fiancé has worked on-and-off as a transport worker, and the person who transported C to Melbourne did so in his capacity as a transport worker. Whilst there is no direct evidence to support the contention that the mother and/or her fiancé orchestrated or at least aided C’s departure, the connection between Mr H’s profession and the mode of transport utilised by C ought be noted as, indeed, ought my findings in respect of Mr H consequent upon the last trial. 

3. Whilst a Recovery Order was made by me in respect of C on 16 September 2009, the Department of Human Services in Victoria obtained an Interim Accommodation Order in respect of C on 18 September 2009 which effectively prevented the execution of the Recovery Order.

4. Proceedings were subsequently instituted in Victoria involving the Department of Human Services and the father which resulted in an Order dismissing the Department’s Protection Application on the basis that there was insufficient evidence to support the conclusion that, on the balance of probabilities, C was in need of protection. The father subsequently sought to regain custody of C. Despite the Order, C refused to return to Queensland with the father and continues to reside with his grandmother in Victoria.

5. None of the parties seek orders altering C’s current circumstances. According to the Independent Children’s Lawyer, C has ‘voted with his feet’ and it would be best to allow C to remain where he is currently located.

Sexual Abuse Allegations Regarding D

1. The orders made by me after the three-day trial in March 2009 provided for the father to have sole parental responsibility in respect of the children, and for each of the children to live with him. Time between the mother and the children was restricted initially, but graduated in its frequency and nature over a period of time.

2. As a result of allegations made by the mother, one of the central findings I was required to make following the three-day trial in March 2009 was whether or not D was at risk of sexual harm whilst in the care of the father. I found then that there was no risk of sexual harm to D and I later reiterated this finding on 10 February 2010 after making a Recovery Order for the return of D into the father’s care.

3. The events culminating in and surrounding the making of that Recovery Order are directly relevant to these proceedings.

4. Despite the previous orders I have made in relation to risk (or more accurately, the lack thereof) posed by the father, the mother maintains that she implacably and unshakeably believes that D has been sexually abused by the father and that she is at risk of such abuse if she remains in his care. 

5. On 6 February 2010, after spending unsupervised time with her daughter, the mother withheld D and refused to return her to the father’s care. The mother claims that she took D to a friend’s house, Ms R’s, for a swim and a picnic and, whilst there, D (completely unprompted it is said) made several disclosures to Ms Rr who subsequently phoned the police. The mother claims in her affidavit filed 11 October 2010 that:

   Whilst in the car, on the way back to [W], [D] stated that she was scared of what her dad would do to her when he found out [the she had made the disclosures]. I assured her this would not happen, and she appeared to not believe me. I asked her if she would like to talk to the people at the [W] Police Station and she stated that she did. With much texting, this was organized (sic) for me by [Mr H], and we drove straight there on our return to [W].

6. The mother also states that “the police advised me to take [D] home with me. I asked them to ensure it was okay with DoCS and he assured me that he had spoken to them, and they agreed with him”. The mother goes on to say “When I arrived home…I rang DoCS myself to ensure that they had agreed to me having her and all that was involved. They assured me that…having her with me was their wish…”.

7. The events just described were also detailed by Ms S, a Service Co-ordinator at the Contact Centre used by the mother and father to drop off and collect D, in a ‘Serious Incident Involving Client Report Form’ (which formed part of the bundle of documents tendered as exhibit ICL 7). Ms S noted the following:

   At 4pm on Saturday 6^th February [Mr H] (the mother’s fiancé) called to say that [D] and [the mother] were currently at [W] Child Protection Unit, and asked if I could give [the mother] a call in relation to an allegation made by [D].

   Phone call to [the mother] – [the mother] said they went for a picnic near [R], and with absolutely no warning or prompting, [D] disclosed that her dad had been touching her. [The mother] asked where her father touched her, and [D] replied ‘down below (pointing to her vagina)…..in his bedroom/computer room.’ [D] said he touches her through his clothes, and threatened to hurt her if she told anyone about the touching. [The mother] said that [D] was currently in with [Z] (Child Protection Unit) at [Y] Police station. I asked [the mother] to keep me informed as [the father] was due to arrive at 5.15pm to pick up [D]. [The mother] stated that it was imperative that staff at the [Contact Centre] not let [the father] know what was going on because of the possibility that the decision may be made to return [D] to her father…after the interview, in which case [D] would be at more risk. I agreed to this and said that if [the father] came to pick up [D] and she was still being interviewed, I would think of something to tell him. I informed [the mother] that we would be closing at 5.30pm, and she was welcome to leave a message on the answering machine after that time.

   …

   5.20pm – [the father] arrives at [the Contact Centre]. Both I (service coordinator) and the case coordinator were present to talk with [the father]. Service coordinator advised that [the mother] was caught up in traffic and would have to drop [D] at his home later on…[The father] said he would call the police if [the mother] had not returned [D] by 6pm. [The father] then left the Centre.

   …

   07/02/10 – Phone call to [the mother] who informed the matter was now being investigated by DoCS, and the police would have informed [the father] last night about the pending investigation, and why DoCS has ruled that [D]a stay with [the mother] throughout the investigation.

8. Upon making the Recovery Order for D on 10 February 2010, I also ordered that all contact between the mother and D be suspended. I made those orders based on a number of findings not least that ‘the mother, via her actions, is putting [D] through more pain and anguish’. I also reiterated my earlier finding that:

   Both children are at a very high risk of emotional harm at the hands of their mother by reasons of a continued inculcation of a belief on her behalf that [D] has been the subject of sexual abuse at her father’s hands….

9. Those findings prevail in the current proceedings. There is no evidence currently before me which would lead me to conclude that the father now poses an unacceptable risk of harm to D.

10. The Department of Communities (Child Safety) (the Department) investigated the allegations made by D and as part of those investigation, conducted an interview with D on 10 February 2010. A ‘Record of Interview’ completed by the Department and tendered as exhibit ICL 1, provides an overview of what was discussed with D during the interview including:

    ·[Interviewer] asked if father does anything…to [D] that makes her feel unsafe.

    ·…[D] stated no.

11. Significantly, the Department interviewed D again on 17 February 2010 and the following statements were recorded:

    ·Team Leader indicated that she had heard that…[D] had told [Z] [Police Officer] that her father touched her.

    ·…[D] stated that she didn’t remember saying anything like that.

    ·Team Leader…asked if [D’s] father had been doing things to her e.g. touching [her].

    ·…[D] said “No”” and shook he (sic) head.

    ·Team Leader…asked about concerns around [D] being touched by father.

    ·…[D] stated that she could not remember anything.

    ·Team Leader…asked if [D] had been touched by dad on (and indicated areas of her body – chest area and between her legs).

    ·…[D] stated that she could not recall anything like that happening to her.

    …

    ·…[D] stated that she was not worried about her father touching due to the fact that it was not happening.

    …

    ·…[D] stated that her mother has not spoken to her about touching.

12. The Department also conducted interviews with the mother and the father. Following this investigation, the Department made the following determinations which are important and consistent with my findings in the earlier trial:

    These concerns [regarding sexual abuse of D by the father] have been comprehensively investigated and any sexual harm allegedly caused by [the father] has been unsubstantiated. Concerns are unsubstantiated based on the fact that…[D] made no consistent disclosures in relation to being inappropriately touched by [the father]. It is acknowledged that…[D] reported to [police] (at [W] CPIU) that there was one occasion where her father had reach over the couch and touched her “down there”, however throughout the course of the interview it was established by Police that the information provided by…[D] was not consistent. Additionally, the individual to whom the disclosure was initially made…was concerned by…[D’s] lack of emotional reaction following the disclosure and questioned its validity. Furthermore,…[D] presented to the [W] Police station with her mother…and the Department has learned that [the mother] was coaching…[D] into making statements about how her father hurt her. Finally, when re-interviewed by departmental officer (and when no longer in the mother’s care),…[D] made no disclosures about sexual harm and in fact, could not remember the disclosure she had made to [police] earlier in the week.

    Upon request from [the mother] other parties were interviewed in relation to the sexual allegations and disclosures made by [D]. Interviewed parties suggested that they were concerned and suspicious of [the mother’s] actions in relation to the sexual allegations as well …[D’s] lack of emotional reaction following her initial disclosure. The Department assessed that the interviewed parties did not have substantial information to suggest that [D] had been sexually harmed instead there was suspicion over [the mother’s] conduct following the disclosures. Furthermore, the Department discussed with … [D] that they were concerned about the ongoing sexual allegations and assured [D] that she had the right to feel safe. [D] maintained that she would report any inappropriate conduct to relevant authorities.

13. Also consistent with my findings in the earlier trial, and also in my view, very significantly, the Department concluded that the mother had caused emotional harm to D:

    It has been assessed that [D] has been emotionally harmed by the actions of her mother…This harm has been substantiated based on reports provided by [D’s] psychologist [Ms P] indicating that [the mother] had been coaching …[D] to indicate she was unhappy in her father’s care and that her father had hurt her. [Ms P’s] report indicated that…[D] feels “confused” and “mistrustful” of her mother because she asked [D] to lie. Furthermore, [D] indicated a preference for her contact with her mother to be returned to a contact centre until such time as she felt like she could trust her again. Based on the above, emotional harm has been substantiated against [the mother].

14. The report of Ms P referred to by the Department was tendered as exhibit ICL 8 and contains a number of observations made by Ms P following several interviews with D. Notes from a session with D on 22 February 2010 state:

    Asked what had occurred at the last visit [with the mother]. [D] explained that mother did not take her back to the contact centre. [D] stated that she felt confused and didn’t know what was happening. [D] stated that her mother told her she was going to stay with her. [D] and I talked about her relationship with mother and father. She commented that she felt like she was ‘in the middle’. When I asked what she meant, [D] commented that she thought her mother didn’t like her father much. [D] advised that her mother had told her to say she was unhappy at her father’s home. She commented that she had tried to tell her mother that she was happy and not being hurt but her mother didn’t listen to her. I asked how [D] felt about this and she said it was ‘hard’. I asked if this had happened before and she commented that her mother had told her to say things that were untrue when they separated.

15. Having made these observations, Ms P advised the father that:

    Given the events that have transpired, it is my opinion that future contact between [D] and her mother be supervised. [D] is confused by her mother’s actions and is now mistrustful of her. Her desire to have visits return to the contact centre indicates that she no longer feels comfortable to spent time with her mother in an unsupported environment. In order for the relationship to recover it is important that [D] is provided with the environment and time she requires to re-establish the relationship.

16. I reiterate my previous conclusion: all of the independent evidence before me persuades me that the mother has caused significant emotional harm to D as a result of the actions just outlined.

17. I am comforted that the Department’s conclusion is similar:

    [o]ver the past three years [the mother] has consistently alleged that [the father] was abusing…[D]. Despite each investigation reaching an unsubstantiated outcome, [the mother] has persisted with her actions.

18. Mr M, a social worker with an extensive history in this matter, prepared a Family Report following interviews with the father, the mother, D, the maternal grandmother, maternal uncle and C on 17 May 2010. Significantly, Mr M felt that the issues in the case, as they related to D, were:

    ·[The mother’s] continuing pattern of action to undermine the children’s arrangements with their father;

    ·The risk to D of further unsupervised time with her mother.

19. Thus, for Mr M, there were no issues of concern for D in terms of her father; the main concerns stem from the mother’s actions and the risk the mother poses to D’s wellbeing. Mr M made the following observations:

    62. …I note that the interview which [Ms P] conducted with [D] shortly after the return to her father was comprehensively contrary to the assertions made by [the mother]. If that assessment and [D’s] presentation here is accepted, then it is more the case that [D] has been the victim of her mother’s obsessive focus to undermine her care with her father.

    …

    65.There is a pattern of [the mother] acting in a capricious manner to undermine the children’s tenure with their father. My view remains that his care of the children has been more stable. If [D] were to return to unsupervised time with her mother, [the mother] has made it clear that, if the circumstances were similarly aligned, she would not act any differently. This incurs any unsupervised times with risk for [D] of a repeat of those past events.

    66. Further to this, [D] expresses confusion and anxiety about the future arrangements with her mother. If her anxiety is to be accepted, this is due to her insecurity that her mother may again not return her, and expose her to the same train of events as before.

20. Mr M also made the following observations of D:

    51.[D] was slightly difficult to interview. She was nervous. Asked whether she would like to see her mother on the day, she initially said that she wouldn’t…However, she did agree to meet her mother on the day.

    52.[D] likes her father’s new partner and her daughter and they get on well together.

    53.[D] said that she never told her mother that her father had hurt her or done anything to her. She said that when she got to her mother’s place, on the last day her mother had simply told her that her father was a bad role model and that she was taking her to the police station. She was vague about what she had told her mother about whether or not she wanted to come home, but she was consistent throughout her interview that she had never said that there were any problems at her father’s place.

    …

    55.[D] said that she would like to keep seeing her mother at the contact centre rather than outside. Again her reasons for this were elusive. She liked the contact centre because she liked the people there and thought that they were nice. She thought hard and long about my question regarding why she wanted to go back to the contact centre again saying generally that she enjoyed time with her mother, and also why she had been anxious about seeing her mother. She eventually said that she felt that perhaps she thought that her mother wouldn’t return her again. This of itself was a pensive reflection for [D]. It did not appear easy for her to express this feeling.

21. It should also be noted that, in somewhat perplexing evidence, the mother has stated that if D was to come into her care, she would send D to her mother’s house in Victoria (so that she and C could be together).

Unacceptable Risk - Findings

1. In McCoy v Wessex (2007) 38 Fam LR 513, Brown J refers to a number of decisions where the place of “unacceptable risk” is considered. In particular, her Honour refers to the decision of the Full Court in In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655.  There, Fogarty J said (at 82,713-4):

   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 to explain adequately their findings in this regard.

2. As the Honourable John Fogarty AM, writing in the Australian Journal of Family Law (‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249), said (at 254-5):

   …the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.

   Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk everyday. People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harms way. Most people try to avoid what they perceive to be risk; some willingly take on high risk activities.

   Risk involves two components; the degree of “likelihood” of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.

   But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.

   Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).

   Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult….

   At times the courts and the legislature have attempted to give an indication of the content or quality of the risk – otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable”. [paragraphing added to the original for ease of reference]

1. I respectfully agree, as I also do with this statement by Mr Fogarty:

   … unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”. (at 261)

2. Subject to a consideration of the presumption of equal shared parental responsibility and, consequently, s 65DAA, the weighing of relevant Primary and Additional Considerations in the context of the Act’s Objects and Principles, seems to me to require, in cases of this type, a careful balancing exercise similar to that referred to by the Full Court, prior to the 2006 amendments to the Act, in B & B [1993] FLC 92-357; (1993) 16 Fam LR 353. There, the Full Court said (@ 365-366):

   The High Court in M v M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.

   The test propounded by the High Court in M v M and which is authoritative in this jurisdiction, is: “That a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse (at Fam LR 611; FLC 77,081)”.

   The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M v M that: “In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”.

   Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the court stated: “Even in such a case, however, there may be a risk of disturbance to a child who is brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. (emphasis added)”.

   Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.

   It should be noted that the M v M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s 64(1)(a) of the Family Law Act and Brown v Pederson (1992) 15 FamLR 173; [1992] FLC 92-271.

3. The prospect of erroneously finding that a person presents no, or no unacceptable, risk of harm is as grave as it is haunting. So, too, a finding that a child is not at risk, or unacceptable risk, from sexual abuse at the hands of their parent. Findings that a person presents no risk of harm cannot be, and are not, made lightly.  Judicial fallibility does not have to be expressly acknowledged to be ever present.

4. Bearing those extreme pressures in mind, by reason of the matters dealt with above, in particular the investigation conducted by the Department and D’s statements to both Ms P and Mr My, I am satisfied that the father poses no unacceptable risk of harm to his daughter: B and B (1988) FLC 91-978 and M and M (1988) FLC 91-979.

5. Whilst the father seeks a finding that he has not abused D, such findings should only be made when “strong practical family reasons” necessitate their making: M and M. It is clear that in this case, the only person who (ostensibly) believes that the father has sexually abused D is the mother. Not only has D denied that the father has sexually abused her, but third parties have also expressed serious doubt about the veracity of the allegations and have been more concerned with the mother’s motives for making the allegations. Furthermore, the mother has expressed that her belief that D has been abused by the father is both implacable and unshakeable and a finding of this Court to the contrary would not persuade her otherwise. I am thus, disinclined to make the finding the father seeks.

6. There are, however, issues apart from the alleged sexual abuse at the hands of the father, which raise concerns that D may be at an unacceptable risk of harm.

7. I have previously found that the mother’s actions in continuing to assert that the father has abused D, despite D repeatedly stating to the contrary, has undoubtedly caused D emotional harm and I reiterate those findings here. The events surrounding the mother’s retention of D in February 2010 solidify this finding. I am under no doubt that the mother has caused emotional harm to D and I am satisfied, to the requisite standard (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Evidence Act 1995 (Cth), s 140), that the mother poses an unacceptable risk of emotional harm in the future.

8. My own observations of the mother accord with the findings of the Department and Ms P’s observations and I reiterate that ‘the mother, via her actions, is putting [D] through yet more pain and anguish’.  

Primary and Additional Considerations

1. The Court’s central task, namely the determination of orders that best meet the best interests of the particular child or children in his, her or their particular circumstances and the mandatory process which governs that task, does not change because allegations of abuse are made.

2. In that respect, it is important to reiterate part of what the High Court said in M v M (1988) 166 CLR 69 (at 76) which, in my respectful view, is no less true consequent upon the passing of the Reform Act which introduced significant changes to Part VII of the Act:

   Viewed in this setting, the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…

3. Further, the High Court pointed out that:

   In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.

4. Now, just as when M v M was decided, the resolution of an allegation of the potential risk of harm ought not replace or divert attention from the central task of assessing D’s best interests.  The identification of the need to protect children from specified harm as a Primary Consideration does not, in my view, alter that position; that Primary Consideration occurs in the context of a broad assessment with an ultimate focus on best interests.  So much, in my view, is clear from a number of sections within Part VII, for example, s 65CA and s 60CC(3)(m).

5. There is no denying that D loves her mother and wants to have contact with her. However, it is concerning that a child, then 11 years old, has stated that she would rather have contact with her mother at a Contact Centre, as opposed to unsupervised contact. Significantly, this statement was made by D prior to her mother retaining her in February 2010 and all of the troubling events associated with that as earlier referred to.

6. Nonetheless, the ‘Facilitated Contact Observation Notes’ taken when the mother had supervised contact with D reveal a mutually loving and caring relationship between D and her mother. For instance, the notes from 28 August 2009 state:

   [D] jumped up and said to [the mother] “me first” and gave [the mother] a hug…

7. Similarly, on 9 October 2009 it was noted:

   [D] said that she was looking forward to seeing mum as she had not seen her for 2 weeks…[D] smiled at [the mother] as [the mother] kissed her on the head and tousled her hair.

8. These statements demonstrate that D does, when time with her mother is supervised, benefit from a relationship with her mother and that such a relationship is clearly meaningful and important for D.

9. There is however, a distinct need to provide adequate protective measures to prevent any risk of emotional harm to D. As has been detailed both above and in previous judgments, the mother, when allowed unsupervised contact with D, has encouraged D to make false allegations against the father. Sadly, this has not been an isolated event and the evidence before the Court reveals that such behaviours are detrimental to D’s emotional well-being. As such, whilst D would certainly benefit from a meaningful relationship with her mother that must occur when it is balanced against the need to protect D from psychological and emotional harm. I think that can only occur if time is supervised.

10. The Department of Communities (Child Safety) articulated similar concerns in the ‘Assessment & Outcome Summary’ (exhibit ICL 4) in February 2010:

    It should be noted that the Department is concerned that [the mother] continues to believe that …[D] is being sexually abused (despite nil supporting evidence) and will continue to explore various avenues which could be traumatic for [D]. One such avenue may result in [D] being subjected to an invasive physical exam in an attempt to find other supporting information. This poses [D] at great risk of physical and emotional harm, should the exam be allowed to occur.

11. I agree with this statement and in fact raised the issue of D being subjected to a physical exam with the mother during the current proceedings. The mother, despite my emphasising the extreme invasiveness of the procedure and the harm that may result, maintained that she would be willing to subject D to a physical examination to determine whether or not D had been sexually abused.

12. I also have concerns regarding the mother’s fiancé, Mr H – concerns repeatedly voiced in previous judgments. I will, again, incorporate sections of the judgment I delivered on 31 March 2009, specifically paragraphs 130 – 133 and 149 – 151. No evidence before me suggests that I should change my mind about any or all of those findings.

13. As I said earlier in this judgment, I attach great significance to the current views expressed by D and I find it very concerning that D has repeatedly expressed her desire not to see Mr H. On 8 October 2009, D saw Ms P. Ms P stated, in clinical notes pertaining to that session:

    [D] still anxious about unsupervised contact with mother given possible exposure to partner…Still worried [Mr H] will turn up at contact. Doesn’t like [Mr H] because he used to yell a lot. 

14. On 2 November 2009, D again visited Ms P who noted the following:

    Discussed visits with mother. [D] advised that if she had a choice she would prefer that they stayed at the contact centre. This was due to not wanting to see [the mother’s fiancé] at mother’s house. Would go to mother’s house if [Mr H] is not there.

15. Following another session with D on 22 February 2010 (following the mother’s retention of D), Ms P noted that D ‘indicated that she was now mistrustful. Still a bit confused. [D] commented that she would like to see her mother but at the contact centre’.

16. At the time D made these statements to Ms P, she was 12. She articulated her views with regards to the mother’s fiancé clearly and definitively. It is significant, to say the least, that a 12 year old girl would elect to visit with her mother at a Contact Centre as opposed to the mother’s home and to give as a reason, or part of the reasons, avoiding contact with the mother’s fiancé. I consider I should give those views respect and, accordingly, weight.

17. Aside from the findings I have made above, there is nothing on the evidence before me which would compel me to alter the findings I have previously made in relation to the relevant Considerations. I again refer to the reasons for judgment delivered 31 March 2009, specifically paragraphs 192 -199, 207 – 210, and 212 – 215 and I incorporate those findings, in addition to those set out in these reasons above, to make the following determinations in relation to time and supervision.

Time and Supervision

1. In the reasons for judgment published in March 2009 I said:

   218.The evidence and findings earlier outlined point, in my judgment, to the children living predominantly with their father and the removal of the influence of [Mr H].

   219.I am not convinced, particularly in light of the evidence earlier referred to with respect to the attitude of each of the mother, and [Mr H], to the father, and the evidence of [Mr H] in the witness box earlier quoted, that [Mr H’s] absence from the children could be relied upon in the absence of supervision of the mother’s time.

   220.What is also clear is that the children have a close bond with their mother and want to see her, and see her regularly. I am told by two independent experts that the risk of emotional harm is such that I should order that supervision of time between the children and their mother, and probably (as part of that) that time between the children and [Mr H], should be restricted.

   221.Supervision of time with the mother should also be assessed in light of an order to be made that the mother ensures that the children do not come into contact with [Mr H]. Such an order is indicated, in my judgment, as causing little if any detriment to the children and, conversely, as beneficial in protecting them from emotional pressure and, thus, harm.

   222.The issue of supervision requires analysis with respect to the principles which bind me and also the issues in this case.

2. I reiterate those findings. I am of the view that D’s best interests necessitate orders that see her remain living with her father and that all time between the mother and D be supervised.

3. I am of the firm belief that the mother poses a significant risk of emotional harm to D and such a risk can only be ameliorated if time between the mother and D is closely supervised.

4. Whilst I am acutely aware that supervision is often not conducive to the development of a meaningful relationship between a child and their parent, as the Full Court said in C & J (1996) FLC 92-697: “access orders need to be moulded to the particular circumstances of the case…” and ‘the Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option’.

5. There is nothing in the evidence currently before me to persuade me that D’s best interests can be secured other than by supervision. The mother’s actions in February 2010 and all that they imply to D’s detriment, serve as the most poignant illustration of why this is so.

6. I acknowledge that orders for supervised time might, in a usual case, be accompanied by a “sunset clause”. In RG v JR [2006] FamCA 293 the Full Court ordered indefinite supervised contact in the context of a father with mental illness. No general principles were laid down in that case for when such an order may be appropriate, however the Full Court implicitly accepted the trial judge’s considerations of what made such an order suitable in those circumstances. The Full Court also emphasised the value of inserting a review mechanism or “sunset clause” in orders. The Full Court said at [107]: “We accept that in many cases the effect on children of indefinite, long term, supervised contact, particularly if such contact is to continuously occur in a children’s contact centre, may not be in a child’s best interests”.

7. In my opinion, however, the true effect of that, and often is that, by reason of the predominance of children’s best interests, the Court has the widest discretion to make whatever orders are appropriate in the best interests of D in relation to the time D spends with her mother. Supervision without any review mechanism or “sunset clause” is one option. I am satisfied, in light of the tragic history of this matter, in particular, including the repeated and unrestrained emotional abuse of D by her mother, that any time the mother spends with D should be supervised.

8. I am also persuaded for the reasons earlier set out, that it is in D’s best interests if her father continues to have sole parental responsibility of D in respect of all ‘major long terms issues’. The parties have no capacity to communicate or reach joint decisions (see s 65DAC) and I consider the mother’s decisions are likely to be adversely affected by her implacable belief system and the things she does to D consistent with it. The presumption is plainly rebutted in D’s best interests.

9. I order accordingly.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 28 March 2011.

Associate: 

Date:  28 March 2011