York & York - [2023] FedCFamC2F 971

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
York & York [2023] FedCFamC2F 971

File number(s): CAC 1139 of 2021

Judgment of: JUDGE MANSFIELD

Date of judgment: 7 August 2023

Catchwords:

FAMILY LAW – PARENTING – Final orders – Two children aged 9 and 6 years old – Where father convicted of use of a carriage service to cause Child Exploitation Material (CEM) to be sent to himself – Where mother and ICL seek supervised time only – Where father seeks only a limited period of supervision and then overnight time – Conflicting expert evidence as to level of risk posed by the father – Determination that the risk posed by the father is classified as a possibility but is not an unacceptable risk.

Legislation:
Australian Passports Act 2005 s 11(1)(b)(i)

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 60CG, 61DA, 65D, 65DAC, 65Y(2)(b), 102NA

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69

Makita (Australia) Pty v Sprowles (2001) 52 NSW LR 705

R & C [1993] FamCA 62

Division: Division 2 Family Law

Number of paragraphs: 109

Date of last submission/s: 16 May 2023

Date of hearing: 3 to 5 April 2023

Place: Canberra

Solicitor for the Applicant: Self-Represented

Solicitor for the Respondent: Self-Represented

Counsel for the Independent Children’s Lawyer: Dr Leslie

Solicitor for the Independent Children’s Lawyer: Legal Aid ACT
ORDERS

CAC 1139 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR YORK

Applicant

AND:
MS YORK

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

7 AUGUST 2023

THE COURT ORDERS THAT:
1.All previous parenting orders for the children X born in 2013 and Y born in 2017 (‘the children’) be discharged.

Parental Responsibility and Lives With
2.The mother have sole parental responsibility for the children.
3.In exercising her sole parental responsibility, the mother shall do the following:
(a)Notify the father via email of any long-term parenting issue which requires a decision with the email to set out her initial view as to the decision that should be made (for example, what school the children should attend);
(b)Within 14 days of that initial communication, the father shall respond by return email setting out his view about the course of action proposed and any alternative suggestions he has;
(c)The mother will consider the father’s view for a period no longer than 14 days and, if necessary, re-contact the father for further information or discussion;
(d)That upon the expiration of 14 days from the date of receipt of any alternative view set out in Order 3(b) above, and if no agreement can be reached after a genuine attempt to reach agreement, the mother shall make the decision and notify the father forthwith by email of the decision made.

4.The mother:
(a)Be permitted to commence or proceed with an application for a passport for the children from the Department of Foreign Affairs and Trade of the Commonwealth of Australia pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005, without the consent of the father; and
(b)Has leave pursuant to section 65Y of the Family Law Act 1975 to take the children outside of the Commonwealth of Australia for the purposes of overseas travel.

5.The children live with the mother.

Spends Time With
6.The children are to spend time with their father as agreed between the parents and failing agreement:
(a)Every Wednesday from the conclusion of school or 4:00pm until 7:00pm, with the father to collect the children from their school or the mother, and the father to deliver the children to the mother at the end of the time; and
(b)Alternate Sundays from 9:00am to 5:00pm, with the father to collect the children from the mother at the start of time, and the mother to collect the children from the father at the end of the time.

7.Upon compliance with Orders 18 and 19, but no sooner than six (6) months from the date of these orders, the children are to spend time with their father as agreed between the parents and failing agreement:
(a)Every Wednesday from the conclusion of school or 4:00pm until 7:00pm, with the father to collect the children from their school or the mother, and the father to deliver the children to the mother at the end of the time; and
(b)Alternate Saturdays and Sundays (on the same weekend) from 9:00am to 5:00pm each day, with the father to collect the children from the mother at the start of time, and the mother to collect the children from the father at the end of the time.

Communication between the children and the Father
8.The children be permitted to contact the father each Tuesday and Thursday between 6:30pm and 7:30pm as follows:
(a)With the father to initiate the call to the mother; and
(b)With the mother to ensure that the device receiving the call is available and ready to receive the call.

9.In addition to the time set out in Order 8 above, should either of the children or both children express a wish to speak to the father at any other reasonable time, the mother shall facilitate that occurring.

Communication between the Mother and Father
10.For the purposes of communicating information about the children and/or compliance with any Orders made, the mother and father shall use the Talking Parents App unless the issue is urgent when communication shall occur via telephone call or text message to their personal phone numbers.
11.Both parents keep each other informed at all times of their contact details including mobile telephone numbers and email addresses and advise the other parent of any change to such details forthwith but no later than twenty-four (24) hours after the change has occurred.
12.The mother keep the father informed at all times as to the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other health professionals attended upon by the children.
13.Both parents inform the other parent of any serious medical condition, significant health issue or illness suffered by the children in their care as soon as reasonably practicable but within twenty-four (24) hours of such serious medical condition, significant health issue or illness arising and in the event the children attend hospital for any illness or injury the other parent be notified within two (2) hours.

Authority relating to School/s/Treatment Providers
14.This Order acts as authority for any school attended by the children to release to the father information about the children’s educational progress and other school-related activities and supply him with copies of school reports, photographs, certificates obtained by the children and any newsletters, notices or other correspondence or information about the children that would normally be provided to a parent.
15.These Orders be sufficient authority for the children’s treating practitioners and specialist practitioners or other health practitioners to provide any and all information relating to the children to the father, however shall not be taken to discharge the parent’s obligations pursuant to these Orders to keep each other informed of such information.

Counselling and Programs
16.The mother forthwith do all acts and things necessary to:
(a)Obtain a Mental Health Care Plan for each of the children;
(b)Obtain a referral to a clinical psychologist with experience in protective behaviours for children;
(c)Engage the children with that clinical psychologist for the following purposes:
(i)General emotional and psychological support for the children;
(ii)Assistance with informing the children of the father’s offending in a child- focussed and supportive manner; and
(iii)Work with the children on protective behaviours with a particular focus on boundaries and the risks of grooming by a trusted person given the father’s offending.

17.For the purposes of Order 16 above, the mother has liberty to provide a copy of these Orders, the Family Report of Dr B dated 7 February 2022, the report of Dr C dated 27 August 2022 and the reasons for judgment to the children’s treating practitioners.
18.The father continue to attend upon Ms D (Forensic Psychologist), or such other person as may be recommended by Ms D in the event she cannot continue her therapeutic engagement with the father, for a period as deemed necessary by Ms D (or such other person as may be recommended by Ms D) but for not less than 6 months if treatment is weekly or for not less than 12 months if treatment is less frequent than weekly, and with the father to follow all of her reasonable directions and recommendations in relation to treatment.
19.The father forthwith do all acts and things necessary to engage in regular targeted drug and alcohol counselling with a service such as E Service or, should the father prefer, with a private practitioner and the father shall do the following:
(a)Provide the mother with proof of engagement in regular targeted drug and alcohol counselling; and f
(b)Follow all reasonable directions and recommendations in relation to targeted drug and alcohol treatment.

20.In relation to Order 19 above, the father has liberty to provide a copy of these Orders, the Family Report of Dr B dated 7 February 2022, the report of Dr C dated 27 August 2022 and the reasons for judgment to his treating practitioners.
21.Should the mother continue with or engage in therapeutic counselling, she has liberty to provide a copy of these Orders, the Family Report of Dr B dated 7 February 2022, the report of Dr E dated 27 August 2022 and the reasons for judgment to her treating practitioners.

Restraints
22.The father is restrained from consuming alcohol while spending time with the children or for the 12 hours preceding spending time with the children.
23.The parties are each restrained from:
(a)Making any derogatory comments in regard to the other parent, their partners or a member of that parent’s family, in the presence or hearing of the children, or allowing the children to remain in the presence or hearing of another person making such comments;
(b)Posting or publishing any material on social media in regard to the other parent;
(c)Using physical chastisement as a form of discipline of the children;
(d)Exposing the children to family violence while the children are in their care or they are spending time with the children.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
INTRODUCTION

This is an application for parenting orders concerning two children – X who is nearly 10 years old and Y aged 6 years old. The applicant father and the respondent mother had a tumultuous thirteen year relationship until late 2018 when the father was arrested and charged with use of a carriage service to cause Child Exploitation Material (‘CEM’) to be sent to himself. The mother and the children moved out and the mother increasingly decreased the children’s time and the father commenced proceedings in June 2021. The leading issue in this case is what risk the father now presents to the children and what should be done about that in circumstances where all parties agree that there is a benefit to the children maintaining their meaningful relationship with the father and all parties agree that the children should spend time with the father provided that it is safe.
I have found that the risk posed by the father is classified as a possibility but is not an unacceptable risk that warrants supervised time only. The risk can be ameliorated by limiting the time that the children spend with the father along with affording the father and the children the benefit of undergoing therapy and counselling.
ORDERS SOUGHT & ISSUES
The Orders sought by the father by his Amended Initiating application of 29 March 2023 included that:
(a)The parents have equal shared parental responsibility;
(b)Until 4 March 2025, the children spend unsupervised time with the father:
(i)Alternate Wednesdays from after school to 7.00pm.
(ii)Alternative weekends from 9.00am to 5.00pm on Saturday and Sunday.
(c)From March 2025 and thereafter the children spend unsupervised time with the father:
(i)Alternate Wednesdays from after school to 7.00pm.
(ii)Alternative weekends from after school Friday to 5.00pm on Sunday.
The Orders sought by the mother by her Amended Response of 21 March 2023 included that:
(a)The mother have sole parental responsibility;
(b)The children spend professionally supervised time with the father for up to 4 hours each fortnight.
On the last day of hearing procedural orders were made for the Independent Children’s Lawyer (‘ICL’) to prepare and provide to the parties a minute of final orders sought by the ICL. Subsequently, the ICL’s minute of final orders sought included that:
(a)The mother have sole parental responsibility;
(b)The father continue therapy and undergo alcohol counselling;
(c)For two years, the children spend professionally supervised time with the father for no less than four hours each fortnight;
(d)The parties participate in mediation to determine time arrangements thereafter.
On the last day of hearing procedural orders were also made for the parties to respond to the ICL for the purposes of advising their respective positions in relation to the ICL’s proposed minute prior to the ICL making her final submissions in writing. In her submissions, the ICL prepared a table which helpfully reconciled the parties’ respective positions against the ICL’s minute. With the benefit of the ICL’s written submissions, the parties then had the opportunity to further revise their respective positions in their own written submissions.
When making the orders regarding written submissions, it was not anticipated that any submissions in reply would be necessary. The ICL however filed submissions in reply not in order to take issue with the submissions of the parties not agreed to (which would not have been necessary), but to “draw the court’s attention to important procedural and evidence issues that arise out of the filing of the Father’s submissions [where] the Father seeks through the written submission process to adduce further evidence that was not tendered, cross-examined on or otherwise in evidence during the hearing of the matter [which] is both impermissible and procedurally unfair.” In turn, the father and the mother then filed their own further written submissions in reply.
In these reasons I have taken into account all of the evidence that was duly admitted in the proceedings and I have read all of the submissions. I have not taken not taken into account evidence within the submissions that was not duly admitted in the proceedings.
After receiving all of the submissions, there are a series of final orders that are agreed. There are also some orders concerning secondary matters that require judicial determination. The primary matters that remain in dispute and require judicial determination are:
(a)Parental responsibility – the mother and the ICL seek sole parental responsibility for the mother with a requirement to consult the father prior to making relevant decisions whereas the father seeks an order for ‘co-parental’ (which I understand to be ‘equal’) shared parental responsibility;
(b)The conditions and regime for time spent with the father – the father seeks as his primary position the regime as per his Initiating Application or more. He otherwise seems to concede that the children’s time with the father be professionally supervised for one year. The ICL and the mother seek for no less than four hours once per fortnight. The father seeks once or twice a week for a minimum of four hours. Thereafter;
(i)The ICL seeks the same regime continue for another year and the parties attend mediation to determine time thereafter;
(ii)The father seeks for mediation to occur prior to the expiration of one year to determine time thereafter;
(iii)The mother seeks the professionally supervised regime continue for another year but does not want mediation to determine time thereafter. She seeks that the children spend time with the father each fortnight for 3 hours in one mid-week and 6 hours on one weekend supervised by an agreed and informed person.
The issues
The issues that require determination in order to resolve the primary matters not agreed to are:
(a)In relation to parental responsibility:
(i)Whether or not there are reasonable grounds to believe that a parent of the child has engaged in family violence; and
(ii)The capacity of the parents to jointly make decisions about major long-term issues.
(b)In relation to the conditions and regime for time spent with the father:
(i)Whether or not the father presents as an unacceptable risk of harm to the children; and
(ii)What measures are sufficient to ameliorate any risks.
THE HEARING
Both parties were self-represented at the hearing and the Court was assisted by an ICL.
Extensive explanation of the trial process was provided to the father and the mother at the commencement of the hearing and throughout the hearing to ensure as far as possible that procedural fairness was afforded to all parties whether represented or appearing in person in order to ensure a fair trial (see Re F: Litigants in person Guidelines (2001) FLC 93-072, Guideline 1 at [253]). I explained the functions of all the parts of the trial and emphasised closing submissions as the opportunity for the parents to explain why I should make the Orders they are seeking.
On the first day of the hearing the father gave his evidence and was cross examined by the ICL only. Dr C was interposed to give her evidence and was cross-examined by all parties. On the second day of hearing the father was cross examined by the mother. The mother gave her evidence and was cross examined by the father and the ICL. On the third day of hearing, Dr B was interposed to give her evidence and was cross-examined by all parties. The cross examination by the father continued following Dr B’s evidence. The father was recalled to give further evidence and was further cross-examined by the mother.
The material received into evidence during the trial is set out and attached at ‘Annexure A’:
Other material referred to and relied upon by the applicant father included:
(a)Amended Initiating Application filed 29 March 2023.
Other material referred to and relied upon by the respondent mother included:
(a)Case Outline Document filed 2 April 2023; and
(b)Amended Response to Initiating Application filed 21 March 2023.

Other material referred to and relied upon by the ICL included:
(a)Case Outline Document filed 28 March 2023.
There was a large amount of material in this case produced by the parties which I have read and had regard .It is not necessary to make explicit findings on each disputed piece of evidence and I do not do so. In the circumstances where there are so many disputed facts of varying degrees of significance, I have considered and evaluated all of the evidence relative to the issues of significance in these proceedings. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it. Likewise, where I have referred to a particular fact or matter, it does not follow that I have had regard to that fact or matter only in reasoning a finding.
BACKGROUND
The father is 63 years old and has three older children to a previous marriage aged 36, 32 and 28 who all live independently of the father. The mother is 45 years old.
The parents met in about 2004 while both working at the F Company in City G in Country H and commenced a relationship shortly thereafter. The parents married in 2005 in Country H when the father was 44 years old and the mother was 26 years old. There followed a tumultuous period over the next thirteen years which included periods where the parties lived separately and together in Country H and City J , two miscarriages, a near fatal car accident, an eight month separation, an application for a family violence order and the birth of the two subject children. The mother says final separation occurred in late 2018 following the Father’s arrest and charge of use carriage service to cause CEM to be sent to himself.
There followed a further tumultuous period over the next 12 months whilst the father was remanded on bail, which included a period where the parties remained living separated under one roof until March 2019, the mother taking the children on two overseas trips, multiple attempts at reconciliation and another application for a family violence order. The father says from March-September 2019, he saw the children approximately two to three times a week at the former family home or at K Shopping Centre for an average four to five hours each time and there were around eight occasions in that period that where the mother and the children had dinner and stayed overnight.
The father was sentenced in late 2019 to a term of imprisonment until early 2020. Having been convicted of a registrable offence, the father is subject to extensive annual and ongoing reporting obligations which include any change of address, travel outside of the Region L, unsupervised contact with any children (including his own), employment details, club affiliations, vehicles, phone numbers, internet service providers and internet identities.
The children remained in the care of the mother during their father’s incarceration and following his release spent unsupervised time with the children on multiple occasions a week including overnight time with X throughout 2020.
Child and Youth Protection Services (‘CYPS’) conducted an evaluation into the family regarding the children having time with their father in or around mid-2020. The outcome of this appraisal in mid-2020 was that there was insufficient evidence to substantiate any allegation of harm to the children in the unsupervised care of the father.
On the mother’s case, following a number of incidents during the children’s unsupervised time with the father (the Suburb M Car Park Incident in mid-2020 and the N Restaurant incident in early 2021) and the conflict surrounding their irreconcilable ideas about parenting in light of the father’s offences, the mother says the children began expressing that they were fearful of their father. It was in this context that she caused the time the children spent with their father to decrease from the period in or around September 2020.
The father remains living in the former family home which he now owns. He owns his own company. The father has repartnered sometime after meeting his partner in mid-2020. The father and his partner maintain separate houses. The father’s partner has a son around the same age as X.
The mother and the children have moved houses several times since separation. The mother rents a five bedroom house and intends to move into what used to be the parents’ investment property when she can afford to. The mother works part time as a public servant. The mother has repartnered. The mother and her partner maintain separate houses.
History of the proceedings
The father commenced proceedings on 1 June 2021 seeking a reinstatement of time with his children and property orders. In his Initiating Application, the father sought equal shared parental responsibility for the children, four nights per fortnight with X and regular day time with Y progressing to overnight time, and eventually progressing to equal time for both children. In July 2021, the mother filed her response seeking leave to particularise her final parenting orders following release of the single expert report but that she have sole parental responsibility and the children live with the mother.
On the first return date in July 2021, Orders were made for supervised time and an expert witness was appointed for the preparation of a Family Report, Dr B. The children were to spend time unless otherwise agreed in writing and on a without admissions basis, with their father on two occasions per week (one occasion of up to 6 hours on the weekend and one occasion mid-week up to 2 hours) supervised by O Contact Centre or another supervisory service.
The parties settled the property aspect of the proceedings by consent on 24 February 2022 following a mediation in late 2021. On 7 February 2022, the expert’s family report was released and, inter alia, recommended the father undergo a psychosexual assessment with a qualified specialist. Interim Orders were made by consent on 15 March 2022 appointing an agreed qualified expert for the purpose of preparing a psychosexual evaluation of the father. An Independent Children’s Lawyer was also appointed and notations with regards to the potential applicability of section 102NA of the Family Law Act 1975 (‘the Act’) should any party become unrepresented during the proceedings, noting both parties had retained legal representation to this point.
The psychosexual report, authored by Dr E, was released to the parties on 21 October 2022 and recommended, inter alia, that the father commence counselling with a forensic psychologist. In late 2022, the father suffered a medical episode and was admitted to the City J Hospital for an operation and remained in hospital for three weeks. The children visited their father on at least two occasions, once supervised by their mother and once supervised by the older children of the father.
On 26 February 2023, the children spent time with the father for the first time at P Contact Centre where all contact has since occurred. On 28 February 2023, the father engaged Forensic Psychologist Dr D to undertake counselling as recommended by Dr C and had his first session on 10 March 2023. On 1 March 2023, a joint report of Dr B and Dr C was released.
THE EVIDENCE
The Father’s evidence
By his opening statement, the father identified three issues:
(i)Respecting the children’s rights to see their father unfettered – without supervision.
(ii)His conviction was more than three years ago which relates to offences that occurred five to six years ago and that he has no other criminal record.
(iii)The veracity of claims made by the mother in the 2015 and 2019 Family Violence Order applications, her 2021 affidavit, the 2021 Family Report and in her 2023 affidavits.
Each of these issues go to the question of whether or not there is a need to protect the children from harm. The father presents three consistent themes in support of his submissions that there is no risk.
(i)Firstly, the circumstances at the time of his offending were situational. He says he was very depressed for a number of years due to emotional, financial and physical abuse and consequently he drank excessively to compensate. He says the wife was regularly away in Country H, between mid-2017 through to mid-2018, on at least eight or nine occasions and he was fearful that he would be divorced again. He says it was during that time that he made bad decisions, ill-informed decisions, decisions that he would not normally make, that led to the offences. He says irrespective of the background, it was wrong of him to lose control of himself through alcohol and has expressed remorse for what occurred.
(ii)Secondly, because the mother has trusted him to care for the children in 2020 and 2021. He says on 35 occasions including 14 overnights.
(iii)Thirdly, that “there is no research to support” that internet based offences could become a physical offence.
As to the mother’s maintenance or promotion of the children’s relationship with the father, the father accuses the mother of manipulation. The father maintains that the mother has set about deliberately disrupting opportunities for the children to spend time with the father and to alienate him from the children. He submits the mother has imposed ad hoc times then unilaterally cancelled or changed arrangements with doubtful reasons. There is evidence consistent with these claims and there is also evidence of some reasonable explanations from the mother.
Dr B’s summary of the father in her report [at page 35-36] resonates with the balance of his evidence in the proceedings:
Psychological assessment of [Mr York] found a man with an unusual presentation and his narrative was full of rationalisations and cognitive distortions. It was difficult to get through his well practised spiel. There were elements of melodrama about his behaviour, and this was consistent with his results to psychometric testing. The focus of [Mr York]’s account appears to be on his alleged experience of [Mr York] being irrational and aggressive towards him. [Mr York] lacks insight about his own offending and his general behaviour suggested a tendency to deflect responsibility with explanations that he was drinking heavily and stressed at the time and holding [Ms York] responsible. He presented as highly defended and lacking in insight.
Unfortunately, [Mr York]’s results to psychometric testing could not be interpreted in any meaningful way due to indications that he provided responses exaggerating problems. To a lesser extent, there were also indications of minimising problems and providing an idealised account.
There is also a description of the father given by Dr C during cross-examination of her which I find illustrative:
I experienced [Mr York] as engaging in – especially initially, quite significant minimisation and denial. I think he’s so terribly ashamed and humiliated and embarrassed by being exposed that his initial automatic response is to, sort of, get on the defensive and deny and, I – I think that his personality structure and predisposition then makes him, sort of, unlikeable, which can result in a negative reaction towards him.
The Mother’s evidence
The mother’s evidence with respect to her attitude towards any risk the father may pose to the children is difficult to reconcile in circumstances where she deposes to:
(a)Supposedly being aware of pornographic photos of young girls on the father’s computer as far back as 2004 and 2006 and that she says the father’s attitude towards her changed once they were married in 2005 and her many allegations of historical family violence;
(b)That [at 84.] “It still makes me very emotional remembering how my husband and the father of my children, who (despite our issues) I loved very much, was taken away in a Police car after committing despicable crimes in our family home”;
(c)The several separations and reconciliations throughout the relationship and attempted reconciliations post the father’s offences;
(d)The many instances of contact between the children and the father including unsupervised time and overnights post separation and since the father’s offences.
I take into account the mother’s first diagnosis of severe depression in early 2019, after the father’s arrest, and in early 2020 of PTSD. The mother deposes to her considerable mental health treatments and that her mental health is presently stable and well managed.
The mother deposes:
123.     The children love [Mr York] and want to spend time with him. I want to ensure they are safe when they are in his care. I have significant concerns about the children spending unsupervised time with [Mr York], given his criminal history and the family violence that I have endured throughout the relationship.
124.     I acknowledge that I have allowed the children to spend time with [Mr York], without supervision and in a public place on some limited occasions since separation. [Mr York] placed significant pressure on me to allow the children to spend time with him without supervision. He told me that he would not spend time with the children if I insisted on the time being supervised.
125.     I reluctantly agreed for the children to spend unsupervised time with [Mr York] as I was aware of how much the children, especially [X], missed their father. I did not want to do the wrong thing by them, and I want them to grow up knowing and having a relationship with their father. I continue to feel like I am letting the children down and feel torn between protecting them and allowing them to spend time with their father.
126.     In addition to my concerns about [Mr York]’s criminal convictions, [Mr York]’s attitude towards me and the family violence I endured throughout our relationship, I also have concerns about [Mr York]’s insight and decision making when caring for the children.
The mother points to two incidents in particular. The Suburb M car park incident in early 2020 where the father left the children unattended in a parked car and the N Restaurant incident in early 2021, where the father directed X to take Y to a public toilet. I find that the circumstances of both of these incidents are arguable from both parents’ perspectives and either way are relatively unremarkable. I do not find that these incidents are of great significance in these proceedings.
It appears as though the mother’s attitude towards any risk the father may pose to the children changed markedly around the time, or perhaps because of, the appraisal conducted by CYPS and the father repartnering in mid-2020 and the mother began restricting time from about late 2020. It also seems that around this time X started to become aware, possibly by virtue of the CYPS appraisal which included his school, of the father having committed an offence. There was also an incident in late 2020 whereby the father called the police to have the mother removed from the former family home. The mother’s evidence indicates a consistency in her position of being consciously and purposely more risk adverse since around this time. The mother’s evidence however does not refer to the outcome of the CYPS appraisal which essentially found that there was insufficient evidence of any risk, and that the mother was in fact still oscillating. The father adduced text messages from early 2021 whereby the mother was seeking to oblige the children’s requests for a movie night and overnight time with the father (to which the father responsibly declined due to the children potentially contracting Covid at the time).
In cross-examination, the mother conceded that neither during the relationship nor after separation had she had any reason to be concerned about the father’s sexual or boundary behaviours towards the children. She acknowledged that there had been no suggestions of sexual grooming behaviours during the time that he has had with the children since separation.
Dr B’s summary of the mother [at page 35 of her report] resonates with the mother’s evidence:
Assessment of [Ms York] found a woman who is very mistrustful of [Mr York] and seems somewhat bitter. She is focused on reconceptualizing and understanding the relationship with [Mr York] considering what she says is new information indicating that her suspicions about infidelity were likely correct. In many ways, [Ms York] appears to be a somewhat vulnerable individual, who may not fully appreciate the risks to the children. There may be cultural issues affecting her capacity to appreciate risk. She appears shocked, almost dazed, at considering her experiences from [Mr York]’s arrest. This is not unusual for an individual in her position (i.e. the sudden discovery that a partner has been accused and convicted of sexual interest in children, five house moves, problems at work, social embarrassment and being rejected by usual supports) and is consistent with her diagnosis. [Mr York]’s current presentation however does suggest that her own adjustment to her thinking may have blinded her to the risks to the children (i.e. focusing on [Mr York]’s alleged infidelity and deceit rather than what the CEM conviction means in terms of the children.)
Dr B’s evidence
Clinical Psychologist Dr B prepared a detailed and extensive family report in February 2022 following interviews in October 2021. Despite Dr B commencing her report with something of a disclaimer that “This is a complex matter with serious allegations made by each parent against the other. The history of the parent relationship was also difficult to obtain from each parent as both [Mr York] and [Ms York] were poor historians” and further, at the start of her summary and recommendations that “The assessment of this family is limited ... Both parents had an unusual presentation and provided information in unusual ways,” the following extracts clearly go to the issues in dispute in this case:
a)   Psychological assessment of [X] found a delightful young man who is troubled by the relationship between his parents but does not understand the nature of it or their allegations against one another
b)   Psychological assessment of [Y] found a confident and outgoing young girl who is optimistic and highly social.
c)   The children have a trusting and affectionate relationship with their mother and love and miss their father and want to spend more time with him.
d)   On one level, the current care arrangements for the children are blatantly inappropriate to their needs to see and spend time with their father. There are however broader issues of risk that have not been addressed.
e)   There are broader risk issues in relation to the children spending time with their father that have not been able to be assessed. [Mr York]’s presentation certainly raises concerns about the risks of his potential sexual interest in the children.
f)   l recommend that [Mr York] undergo psychosexual assessment.
g)   [Mr York]’s proposals for the children cannot be assessed on the present information with the broad risk issues outstanding. Certainly unsupervised time is contraindicated in the interim.
h)   The risk issues for the children have primacy and will need to be determined by the Court.
i)    The risk issues need to be determined by the Court before arrangements for the children to spend time with their father is considered.
j)    If the Court were to find that the risks to the children are low, then they should see him regularly and frequently unsupervised. [Mr York]’s proposals as above seems appropriate to their needs.
k)   Supervised time is problematic if the risks are chronic, as they appear to be on [Mr York]’s presentation at this assessment.
Dr B also gave evidence at page 39 of her report and reiterated in cross-examination that the potential exposure of the children to the father’s poor attitude to the mother is another risk factor, stating:
[Mr York]’s narrative imbedding criticism of [Ms York] might be an added psychological risk. His beliefs and thinking about and hostility towards [Ms York] are likely to influence the way he interacts with the children and talks to them about their mother.
Dr E’s evidence

Clinical and Forensic Psychologist Dr C prepared a detailed and extensive Psycho-Sexual Risk Assessment Report in August 2022 following assessment of the father in mid-2022. Under the heading of opinion is as follows [bold emphasis added]:
148.     [Mr York] is somewhat diagnostically complex. It is clear that he has experienced periodic symptoms of depressed mood and anxiety, however, it is my opinion that these symptoms would not meet the threshold of a diagnosis at the present time (although there are some residual features). Accordingly, it is my opinion that [Mr York] does not meet criteria for a major mental illness. Nonetheless, he does have an unusual personality structure. From all accounts, he appears to have always been a very sensitive individual that has had difficulty making decisions without the advice of his parents. It is my opinion that he has prominent dependent personality features (difficulty making decisions without advice, needs others to assume responsibility, fears of being unable to care for himself) that do not meet full criteria for dependent personality disorder. In addition, [Mr York] has some avoidant (social inhibition, fears of criticism and rejection) and turbulent personality features. Accordingly, it is my opinion that a diagnosis of Mixed Personality Disorder (with dependent and avoidant features) is appropriate.
149.     In addition to his maladaptive personality features, [Mr York]’s offending, and his overall narrative, indicates that a diagnosis of Paedophilic Disorder (sexually attracted to females, non- exclusive type) is also appropriate. However, it must be stressed that this does not mean that he is necessarily likely to actually physically molest children. A diagnosis of paedophilic disorder simply indicates that one has a sexual attraction to children. While the scholarly literature indicates that the actual mechanisms by which deviant sexual interests develop are poorly understood, it is my opinion that [Mr York] likely had a latent sexual interest in children that was fuelled and validated by the use of CEM. Indeed, simply viewing child pornography does not cause people to develop a sexual interest in children. However, [Mr York]’s narrative indicated that he found such material interesting and arousing, despite a small number of images being detected. It is my opinion that [Mr York]’s offending reflected this hitherto latent sexual interest in children. He was reportedly using adult pornography at the time, but the fact that he sought out depictions of children indicated that the adult material was likely not enough to satisfy him.
150.     Regarding risk of future sexual offending, a thorough consideration of risk factors indicated that [Mr York] poses a low risk for engaging in future sexual offending behaviours. He has never been charged with any offending before he was apprehended with CEM in the index offences. [Mr York] has few of the recently identified risk factors associated with recidivism amongst those with child pornography offences.
151.     In addition, it is useful to note that the official recidivism rates for child pornography offenders are low in general. Indeed, a published meta-analysis (i.e. a study of studies) found that across nine studies with a 1.5-to-six year follow-up, two of the studies found no recidivism for online offenders. Across all of these studies, two percent recidivated with a contact sexual offence and 3.4 percent committed further child pornography offences. This is considerably lower than the recidivism rate for contact sexual offenders. [Mr York] has a minimal number of identified risk factors within that group of offenders.
152.     Further, a thorough consideration of risk factors for general offending indicated that [Mr York] poses a low risk for engaging in general criminal behaviour. Indeed, he has not engaged in any other antisocial behaviour and had never been charged with any general offending before the index offences. As such, [Mr York] has few of the identified risk factors associated with future general offending.
153.     Regarding risk to [X] and [Y], it must be stressed that outside of [Mr York]’s child pornography offending, he has apparently never acted on his paedophilic desires with his own children, or other children, or tried to instil permissive boundaries in the family to facilitate future abuse. This appears to have been an isolated incident, with a relatively low number of images detected. Notwithstanding this, the sexual offending is serious, particularly where [Mr York] seeks unsupervised time with the children, providing an opportunity for further possible offending. Such allegations must therefore be considered carefully. To this end, an empirically-based assessment of relevant considerations for both future sexual violence and general offending behaviours indicated that [Mr York] has, overall, few risk factors. He has no prior documented history of violent or sexual offending, no significant markers of anti-social traits, no criminal history, and no markers of psychopathy. Further, he is statistically unlikely to reoffend, and if he were to reoffend, it would be unlikely that this would entail contact sexual offences. It is therefore my opinion that with regards to the sexual abuse concerns, [Mr York] does not require ongoing supervision with the children. Further, [Mr York] reported that he has already completed a sexual offender course in custody.
Under cross-examination by counsel for the ICL, Dr C was informed of the father’s adherence to recommendations that he engage a forensic psychologist and was asked if that was a process he needed to engage in before he should have unsupervised time with his children to which Dr C deposed:
What we do know categorically is that he has finished the group sex offender program. Typically when a sex offender is assessed at low risk we don’t even, sort of, recommend treatment. We certainly don’t recommend group because there’s some information that has come out saying it’s contraindicated, putting low risk offenders with medium and high risk offenders or just offenders that have engaged in more serious offending. So he has already, sort of, done more than what would be considered, kind of, necessary, and he has been engaging in ongoing therapy [and] has had some individual sessions with regards to offence specific work, so I – I think my answer at this point would be it’s not critical, but he has done certain amounts of further individual therapy, but what I’m really looking for there is how proactive is he in – and motivated in continuing to want to explore and unpack this sexual proclivity of his. You know, I appreciate that he presented with significant shame and embarrassment around it, so it’s maybe a little bit harder for him to get moving on this, but I think it’s important that he does stay engaged with some individual therapists for this very reason.
Under cross-examination from the father, the following exchange occurred:
[Dr C], can you advise the court the level of recidivism risk generally for people convicted of internet based CEM offences?---
Yes, your Honour. It’s somewhere around 2.6 per cent. But, I guess, sorry, just to qualify, that’s the level of recidivism risk for contact offending. It’s slightly higher for further child pornography offending. So it sits at around 12 per cent.
Is there a very high risk of crossover from internet based CEM offences to physical CEM offences?---
There’s a low – if – if there’s no prior sexual offences and the first offence is child pornography offending then there’s a very low statistical probability of escalating to future contact offences.
…
Your recommendations in para 154 include that I should undertake psychoeducation sessions with a suitably qualified forensic psychologist, which we’ve mentioned previously, and that was Dr [sic] [D], to address any sexual scripts that may still exist and provide an opportunity for further targeting cognitive distortions. I know it was previously asked before but we didn’t necessarily get tied down. How many sessions do you think are important for that process to go through?---
I don’t think there is a magic number, your Honour. I think that it’s very individual specific in terms of how their insight is developing in that therapeutic process which, sort of, determines what should be a suitable amount of treatment. I would think at the very least for this kind of work a six month period of weekly sessions would be a minimum.
…
In the conclusion of issues that weren’t agreed [in the joint statement of experts] you wrote that my access to CEM represented a very small number of images and that objectively empirical data did not support the alternative hypothesis that [it poses] a high level of risk to his children that would necessitate ongoing supervision and that the level of oversight, response and intervention needs to match the risk prescribed. … Based on the data that can be confirmed and validated at the time, you empirically assessed me as a low risk. In the case of a low risk, would it be unusual to require ongoing supervision?---
Generally speaking, yes. I think if I can expand on that, your Honour, I think what was, sort of, complicated about this case is the fact that I did diagnose [Mr York] with paedophilic disorder and then I’ve gone on to say but I don’t think he needs supervision and that’s not something that comes up often. But in the context of the nuance of the particular offending or the particular sexual offending that he has engaged in and what we know from a growing body of literature around it, I couldn’t see any obvious risk markers that would suggest otherwise at this time. I think if other evidence was available then that might change that opinion, but from what was provided to me, yes, he was a low risk and in low risk cases we wouldn’t typically suggest supervision.
Under cross-examination from the mother, the following exchange occurred:
Based on your point [at] paragraph 149, that [Mr York] likely had a latent sexual interest in children, it doesn’t matter if his own children or whose children, but if there was an opportunity to be in a room with a child without any supervision, a child as young as six years old, do you think that would somehow make [Mr York] think he can do whatever he wants with the child because of this latent sexual interest in children?---
Your Honour, that was not what [Mr York] expressed to me. And, again, I can only use the information that’s provided to me, that [Mr York] was, sort of, emphatic in his position that he would never offend against his own children, and the risk of doing so is, sort of, even lower. So whilst he might have a mixed attraction, which is – and so the non- exclusive type that is, in brackets, next to his paedophilic disorder, in that same paragraph, it notes the fact that he is able to be aroused by both adults and children. Some individuals with paedophilic disorder can only be aroused by children, and so whether he becomes aroused by his own children, I could obviously not answer that conclusively. However, I think the risk of him acting out any sexual urges against his own children is low.
Joint statement of experts
Dr B and Dr C prepared a joint statement on 15 February 2023 where the focus of concerns between the experts was what level of sexual interest risk Mr York poses to his own children and how to manage/mitigate that risk.
The main issue of disagreement was on the level of sexual risk that Mr York poses to the children where [bold emphasis added]:
•[Dr B] maintains that [Mr York]’s presentation does not elicit confidence that he is open about his level of offending, noting that despite requests and notations in her report, she was not supplied with the corrections department report that so upset [Mr York]. The omission suggests a lack of cooperation and a desire to prevent full disclosure even of material that is critical of him.
•While finding him highly defended, [Dr C] maintained that [Mr York]’s access to CEM represented a very small number of images and that objectively empirical data did not support the alternate hypothesis that he poses a higher level of risk to his children that would necessitate ongoing supervision. The level of oversight, response and intervention needs to match the risk prescribed. Based on the data that could be confirmed and validated at this time, [Mr York] was empirically assessed as a low risk. In cases of low risk, it would be unusual to require ongoing supervised access. While [Dr C] acknowledges that [Mr York] attempted to minimise and deny various aspects of his offending, and notes that he presents with a particularly complex and unfavourable personality structure that others may react negatively to, these issues should not be conflated with specific markers of risk for future sexual offending.
LEGAL PRINCIPLES
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper, having regard to section 61DA and section 65DAB of the Act.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
An order for equal shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard.
Abuse and family violence
‘Abuse’ in relation to a child is defined in section 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in section 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
In considering what order to make, section 60CG of the Act requires the court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the court to include in the order any necessary safeguards.
How the Court approaches allegations of unacceptable risk
The High Court in M v M (1988) 166 CLR 69 at [76] said notwithstanding allegations of sexual abuse, the Court’s obligation is to determine what orders are ultimately in the children’s best interests. The Family Court is not required to resolve in a definitive way any disputed allegations of sexual abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence, although in appropriate cases the court can and should make such findings.
Should the Court establish the existence of an unacceptable risk, the Court must proceed to determine whether that risk “is able to be sufficiently managed or ameliorated”. Blinko & Blinko [2015] FamCAFC 146 at [83] referring to R & C [1993] FamCA 62.
On the question of unacceptable risk, the Full Court in Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) established that:
(a)Factual findings about the past and fact based enquiry about the future are two different things;
(b)Risk does not need to be established on the balance of probabilities in the same way that facts are proven;
(c)Risks of harm are postulated from known historical facts and present circumstances;
(d)In assessing whether there is a risk that something may happen, ‘possibilities’ are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those ‘possibilities’;
(e)Allegations of family violence should be cast and considered in the terms of section 4 and section 4AB of the Act;
(f)The assessment of risk is an evidence-based conclusion and it is not discretionary. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interest, which entail an exercise of discretion.
DETERMINATION OF PARENTAL RESPONSIBILITY
Both parents have alleged and maintained right through to closing submissions that each has suffered psychological, emotional, financial and physical abuse. This was a tumultuous relationship over many years where both parties, along with their denials, at times pleaded confession and avoidance to the many and various respective allegations. Dr B regarded both parties as poor historians. By the very nature of matters that are in this Court argument and disagreement are common enough features but evidence of argument and disagreement is not always evidence of family violence as contemplated by section 4AB of the Act. It is difficult in this case to separate what conduct might amount to family violence as opposed to argument and disagreement. However, due to the length and breadth of the instances that each party complains of, I am satisfied that there are reasonable grounds to believe that a party has engaged in family violence. It is certainly what both parents believe. As such, the presumption that the parents have equal shared parental responsibility does not apply.

Nevertheless, I also find that this is not really a case about family violence in relation to the consideration of parental responsibility. Rather, the prevailing feature is the parent’s capacity to consult each other and make genuine efforts to come to joint decisions about major long-term issues in relation to the children.
The mother is adamant that the co-parenting relationship is dysfunctional. Under cross-examination, the father provided an accurate account of what equal shared parental responsibility meant. He said in his view his relationship with the mother was reasonable. He also said that he resorted to communicating with her by text message only to ensure whatever was said was adequately captured and not paraphrased or misquoted. I do not agree with the father that there is a reasonable co-parenting relationship.
I have no trouble accepting the opinions of Dr B on the issue of the relationship between the parents:
On either parent’s account, the relationship between them had been troubled and full of conflict. They are now mistrustful of the other and hostile towards them.
They have a long history of chronic conflict and inability to cooperate or meet each other’s needs. This does not look like improving with time and their separation.
[Ms York]’s presentation rather suggests growing awareness of problematic aspects about [Mr York]’s behaviour and thinking, suggesting that she is likely to become even more mistrustful.
[Mr York]’s presentation is of a lack of insight and cognitive distortions that do not bode well for developing an honest and cooperative relationship with [Ms York].
Dr B expresses further:
[Ms York]’s proposal for sole parental responsibility, if implemented, is likely to have a beneficial effect on the children. [Ms York] is likely to feel less stressed by contacting communication [sic] with [Mr York] that will have an immediate flow on effect for the children with a reduction in conflict.
I am satisfied that it is in the best interests of the children for the mother to have sole parental responsibility.
DETERMINATION OF RISK
This is a matter in which the Court needs to determine if there is an unacceptable risk of harm to the children. The ICL and the Mother submit that there is. The father submits that there is not. The nature of the risk is:
(a)Referable to section 4 of the Act, the father indirectly involving the children in a sexual activity or as a sexual object; and
(b)Referable to section 4AB of the Act, the children being the subject of or exposed to sexually abusive behaviour in the unsupervised company of the father.
The risk arises from the incontrovertible circumstances whereby the father accessed and used child exploitation material. Other than what might be inferred from things said and done by the father in relation to that incident, there are no other historical events upon which the question of sexual risk is raised. The precise issue for determination in this case is the risk of some future event occurring. In this predictive exercise, the Court is assisted by two pieces of evidence – the report of Dr B who proffers the opinion that the father presents as an unacceptable risk and the report of Dr C who proffers the opinion that the father does not present as an unacceptable risk.
On the issue of the level of sexual risk that Mr York poses to the children, I prefer the evidence of Dr C because:
(a)Dr C is more qualified than Dr B and her report is more targeted.
(b)Dr B was engaged as a single expert witness for psychological assessment and completion of a family report. Her report, as was requested by the parties, is wide ranging compared to the report of Dr C.
(c)Under cross-examination by the father, Dr B deposed that she was a clinical psychologist, not a forensic psychologist, and since 2005 she had only done two types of work – family law assessments and her own model of family therapy.
(d)Dr C was engaged specifically to conduct a Psycho-Sexual Risk Assessment.
(e)In her report, Dr C provides her qualifications to carry out the assessment as:
I have a Bachelor of Arts (Criminology and Psychology) with Honours (Criminology), a Post Graduate Diploma in Psychology and a Doctor of Psychology (Clinical and Forensic). My doctoral dissertation investigated the characteristics of child pornography offenders. I am the principal psychologist at [Q Psychology] and currently work for government, private and not-for-profit agencies carrying out family assessments and treatment, individual psychological assessments and treatment, disability assessments and treatment, and risk assessments and treatment. I previously worked for the [R Service] now known as [S Service], where I assessed sexual and violent offenders. I continue to work with sexual and violent offenders as a sessional psychologist at the [T Childrens’ Clinic].
(f)Dr B’s report specifically states that the issue of risk was unable to be assessed. She nevertheless maintains a view that there is a risk suggestive of the need for supervision. It seems her reasoning is that her inability to assess the risk is because of Mr York’s performance at interview – his omissions, lack of candidness and rationalisations. The absence of a conclusion as to risk then means that risk must be assessed as unacceptable.
(g)Dr C points to some of the factors that Dr B relies upon in her assessment of future risk of sexual offending are speculation and there is an absence of clear data. She states that the concerns that Dr B has raised do not have a scientific foundation as markers of future risk and cannot be empirically considered in the current assessment.
(h)On the specific issue, Dr C’s report meets the expert evidence requirements of the leading authorities such as Makita (Australia) Pty v Sprowles (2001) 52 NSW LR 705 and Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 whereas Dr B’s does not.
Dr C’s report draws a definitive conclusion as to low risk whilst emphasising that there can never be no risk. Referable to the language of the full court in Isles & Nelissen, I find:
(a)The risk posed by the father is classified as a possibility and by definition, possibilities are not, and could never be, probabilities.
(b)On a continuum between remotely possible and highly probable, the chance of some future event occurring does not exceed the point where the risk cannot be tolerated.
(c)On the duly admitted evidence, the known historical facts and present circumstances do not support a finding that the father poses an unacceptable risk of harm to the children.
CONSIDERATION IN RELATION TO TIME ARRANGEMENTS
All parties agree that there is a benefit to the children having a meaningful relationship with both parents. All parties agree that the children should live with their mother. All parties agree that the children should spend time with the father provided that it is safe.
Consistent with the above findings that the children are not at unacceptable risk in the unsupervised care of the father, the children’s time with the father does not necessarily need to be supervised. This disrupts the regimes proposed by the mother and the ICL which are built around accommodating requirements for supervision.
Consistent with the evidence of Dr B, where the Court has found that the risks to the children are low, then they should see him regularly and frequently unsupervised and the father’s proposals “as above” seem appropriate to their needs. The “as above” proposal referred to by Dr B was described in her report as:
Currently, [Mr York] is seeking to spend regular and unsupervised time with the children proposing that [X] spend time with him from after school Friday until before school on Monday each alternative weekend, Wednesday overnight each fortnight and after school Wednesday until 7:30 PM every other Wednesday. He proposes that [Y] spend time with him during day periods each alternative weekend and every Wednesday night until 7:30 PM, mirroring the time that [X] is in his care.
This goes beyond the order sought by the father in his Amended Initiating Application and it also encompasses a splitting up of the children which is not something that was further considered by any of the parties at hearing or in submissions.
In cross-examination, Dr B agreed with the proposition that fortnightly time would be sufficient frequency to enable the children to maintain their relationship with their father until they were perhaps older and able to make more informed decisions, but added that the children would see that as not enough. Dr B did not agree with the proposition that smaller blocks of time more frequently was preferable to one block every fortnight, and said the children “would probably like weekends with their father and perhaps more time in the other week, so frequency certainly but not shorter blocks of time. I think the children showed enthusiasm for their father and certainly felt his absence as a deficit.”
Under cross-examination, Dr B was also adamant in her agreement to the proposition that the children are going to have to be informed of the father’s offences at some point and obtaining advice, psychological assistance and counselling around that issue should be obtained sooner rather than later. It was clarified with Dr B that this was not a precondition to time with the father and could happen concurrently with their spending time with the father. Both parents agreed under cross-examination to this process along with a course or personalised program on body autonomy and protective behaviours.
Under cross-examination, the father agreed to continue with his therapeutic process to assist him with insight into his offending but also the risk factors that may lead to any reoffending.
There is also another risk factor arising from the evidence to be taken into account which is psychological harm to the children if exposed directly or indirectly to the father’s attitudes towards the mother. Supervised time would guard against this risk, ergo, unsupervised time does not.
ADDITIONAL CONSIDERATIONS
The views expressed by the children are clear that they want to spend more time with their father. This has to be balanced against the fact that he children are not yet cognisant of the father’s offences. That the mother has shielded them from the nature of the dispute as between the parents is of great credit to her. That both parents are committed to managing the process of the children becoming aware provides weight to the views and wishes of the children moving forward.
Both parents and Dr B recognise a warm and loving relationship between the children and both of their parents. The mother has made considerable efforts to maintain a relationship between the children and their paternal extended family.
The father has completed a number of parenting courses since separation. He has engaged with informal and professional supervision services. It is reasonable that he has not taken up all of the opportunities for time with the children, at least as to financial reasons. The father has taken the relatively few opportunities available to him, and has often sought more, to participate in making decisions about the children, to spend time with them and to communicate with them.
The father pays child support as assessed.
The father currently sees the children on Sundays at P Contact Centre for two hours. He speaks to them twice a week for about 30 minutes using the Talking Parents app. The orders provide for a significant increase in the quantity and kind of time spent with the father. The evidence of Dr B is that this change is likely to have a positive effect on them.
Neither party referred to any practical difficulties to the children spending time with or communicating with either parent. However, the ICL raised the issue of potential limitations upon the father because of the conditions imposed on him as a registerable offender and the mother seeks to be able to inform the school. These situational issues may or may not have the effect of posing some practical obstacles from time to time which would need to be navigated by the parents. For example, the father collecting the children from school. In my view, the Orders are not inconsistent with the reporting conditions imposed on the father and he is capable of recognising and managing the respective regimes concurrently.
The mother’s capacity to provide for all of the needs of the children has been demonstrated conclusively. I do not accept the father’s submissions that the mother’s mental health compromises her capacity to do this. The father’s opportunities to demonstrate his capacity to provide for all of the needs of the children has been limited to date. Any deficits of the father are offset by the limited length of time that the children would be away from their mother.
By their respective positions and commitment to these proceedings alone, both parents have demonstrated their commitment to the responsibilities of parenthood.
Issues of family violence and previous family violence order proceedings have been dealt with at paragraphs 67-68 above. There is no evidence of direct family violence involving the children.
The ICL proposes that the orders for the children’s time with the father not extend beyond supervised time for two years and compel the parties to participate in mediation. The mother does not want mediation and seeks that time move to informal supervision and to not extend beyond three mid-week hours and six weekend hours per fortnight. I find that both of these regimes are highly likely to lead to the institution of further proceedings in relation to the children. In my view, the most likely factor that may impact upon the time the children spend with the father is the childrens’ own views and wishes, particularly following the benefit they are likely to receive provided for in Order 16. What those views and wishes might end up being is something that cannot be envisaged or provided for in the Orders at this time but is something that the parents will need to take into account when that time comes. Particularly I suspect in relation to extensions or suspensions of time around special days and school holidays.
THE ORDERS
With reference to paragraphs 67-72 above, I am satisfied that it is in the best interests of the children for the mother to have sole parental responsibility and Order 2 provides for that. Put another way, I am not satisfied that it is in the best interests of the children for the parents to have equal shared parental responsibility.
Despite the parents communication problems, and perhaps because of their polarised views, the children are likely to benefit from each of their parents having input into the major long-term issues affecting them. For that reason, along with the ICL seeking an order that provides for it, the mother agreeing to it and the father agreeing to it (in the alternative to equal shared parental responsibility), Order 3 provides for a consultation process prior to the mother making a decision about a major long-term issue.
The children are entitled to obtain passports and likely to benefit from international travel. Order 4 removes any doubt about what is a function of sole parental responsibility.
Order 5 that the children should live with the Mother is uncontroversial.
The ICL and the mother essentially seek further supervised time to provide for the father to undergo therapy with Ms D for not less than 6 months if the treatment is weekly or for not less than 12 months if the treatment is less frequent than weekly.
The father attended upon the psychologist Dr U soon after he was charged and has attended 34 sessions with him. Between mid and late 2019, he attended upon forensic psychologist Ms V on six occasions. The father was released from gaol in 2020. In mid-2020 he completed a Region L Corrections program for 6-7 weeks with two 2.5 hours sessions each week. Between mid and late 2020, he completed another Region L Corrections program. Since mid-2020, he has attended review sessions about every three months with Dr U. In her report of October 2022, Dr C wrote:
I would strongly recommend that [Mr York] undertake individual psycho- educational sessions with a suitably qualified forensic psychologist in order to target thinking errors that previously excused his viewing of CEM, address any sexual scripts that may still exist, and provide an opportunity for further targeting of cognitive distortions implicated in the offending behaviours. While [Mr York] poses a low risk of re-offending, targeting potentially risky attitudes will be important over time.
Despite suffering a medical episode and hospitalisation in late 2022, pursuant to Dr C’s recommendations, by early 2023 he had arranged to attend upon psychologist Dr D in early 2023. By the date of his cross-examination on 3 April 2023 he had attended two sessions. Under cross-examination as to how long the treatment should be, Dr C said there was no magic number, it’s very individual specific but thought a six month period of weekly sessions would be a minimum. She also said it was not a precondition to unsupervised time.
On the evidence, I am satisfied that the father has well demonstrated a commitment to therapy and consequently obtained and continues to obtain insight he did not previously have. It is now August 2023. Presuming he has continued to attend upon Ms D and on his extensive history of voluntary treatment I have no reason to doubt that he hasn’t, by next month he will have attended upon Ms D for six months. I also believe that it is likely he will comply with the requirements of Orders 19 and 22 around alcohol use.
Accordingly and together with the findings with respect to risk, I do not consider that it is necessary for the children’s time with the father to be supervised. Despite these findings, the risk remains categorised as a possibility so it still needs to be ameliorated. There is also the risk of psychological harm to the children if exposed directly or indirectly to the father’s attitudes towards the mother which also needs to be ameliorated.
Order 6 ameliorates both of those risks by limiting the quantum of time the children spend with the father. Compared to supervised time, Order 6 provides a much greater opportunity for the children’s relationship with their father to be meaningful and represents the start of a progression towards the kind of regime recommended by Dr B (in the absence of sexual risk). Orders 19 and 20 also operate to ameliorate the risks.
Order 7 provides for some further time after the opportunity for the father’s therapy and counselling (Orders 19 and 20) to be complied with and perhaps more importantly, for the children to obtain or start to obtain the benefit of the therapy contemplated by Order 16.
Further to paragraph 94 above, there is no provision for extensions or suspensions of time for special days or holiday periods. These aspects did not feature in any substantial sense during the hearing and will have to fall into the category of ‘as agreed between the parents’ and taking into account the views and wishes of the children as they mature.
Order 8 about electronic communication between the children and the father is agreed.
I concur with and endorse the submissions of the ICL with respect to Orders 9-23:
Orders 9 – 12 as proposed by the ICL are agreed by both parties.
Order 13 regarding notifying of serious medical conditions is agreed by the Mother. The ICL seeks that notification occur as soon as reasonably practicable but within 24 hours (or 2 hours if the children attend hospital). The Father proposes that this must occur within an hour, which the ICL submits is simply impracticable.
Orders 14 – 17 are agreed except that the Father seeks her title be amended. As Ms [D] is not in fact [Dr D] the ICL does not agree to this amendment.
Order 19 regarding the Father’s drug and alcohol counselling is agreed in principle. The Father seeks that it be limited for a year as he believes the Order as drafted would mean he must otherwise do the counselling for the rest of his life. The ICL submits this is not the effect of the Order, and that if he complied with (b) and follows all reasonable directions and recommendations then this includes recommendations as to the duration of the counselling.
Orders 20 – 22 are agreed.
Order 23 poses a series of restraints. The parties agree with those proposed by the ICL but each seeks to add additional restraints. The Father seeks that the parties be restrained from making any social media posts about the other party. While the evidentiary basis for this is unclear, the request is not unreasonable and the ICL would not oppose such a restraint.
The Mother seeks an addition that “If the Father continue to represent a danger to the children’s well-being, these Orders shall be revoked if deemed necessary to remove the Father’s visitation rights.” The mother is self-represented so probably does not understand that this is not an appropriate Order that the Court can make.

Subsequently, the parents agreed to the restraint about social media (Order 23(b)) and the mother did not press for the additional restraint.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield.
Associate:
Dated: 7 August 2023
‘ANNEXURE A’
RECORD OF EXHIBITS

DATE EXHIBIT NO DESCRIPTION OF EXHIBIT TENDERED BY:

3.04.2023 A1 Affidavit of Mr York filed 6.03.2023 (except for first sentence of para 32) AF

3.04.2023 A2 Affidavit of Mr York filed 29.03.2023 AF

4.04.2023 A3 Photographs of the parties taken from 2005 to 2023 AF

5.04.2023 A4 Text messages from early 2021 AF

4.04.2023 R1 1 page of notes of Dr U dated 7.2.2019 RM

4.04.2023 R2 Page 57 of tender bundle – case notes of 19.11.19 of CCO Ms Z RM

4.04.2023 R3 Affidavit of Ms York filed 21.3.2023 RM

5.04.2023 R4 Affidavit of Ms W filed 24.3.2023 (M’s counsellor) RM

3.04.2023 C1 ICL’s tender bundle – pages 10-14, 25 ICL

3.04.2023 C2 ICL tender bundle – page 7, entry on 23 Dec 2018 ICL

3.04.2023 C3 Page 51 ICL tender bundle limited to under heading MH ICL

3.04.2023 C4 Affidavit of Dr E filed 19.10.2022 ICL

3.04.2023 C5 ICL tender bundle – Conference of Expert Witness Statement 1 March 23 ICL

4.04.2023 C6 Notice of reporting obligations dated 16 March 2023 ICL

5.04.2023 C7 Case notes from 19 Feb 21 of Ms AA – page 89 and 90 of ICL tender bundle ICL

5.04.2023 C8 Affidavit of Dr B filed 24.2.2022 ICL

5.04.2023 C9 Sex offender treatment program exit report 21.12.2020 page 100 ICL tender bundle ICL

5.04.2023 C10 ICO Assessment report 6.12.2019 page 106 ICL tender bundle ICL

File number(s):	CAC 1139 of 2021
Judgment of:	JUDGE MANSFIELD
Date of judgment:	7 August 2023
Catchwords:	FAMILY LAW – PARENTING – Final orders – Two children aged 9 and 6 years old – Where father convicted of use of a carriage service to cause Child Exploitation Material (CEM) to be sent to himself – Where mother and ICL seek supervised time only – Where father seeks only a limited period of supervision and then overnight time – Conflicting expert evidence as to level of risk posed by the father – Determination that the risk posed by the father is classified as a possibility but is not an unacceptable risk.
Legislation:	Australian Passports Act 2005 s 11(1)(b)(i) Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 60CG, 61DA, 65D, 65DAC, 65Y(2)(b), 102NA
Cases cited:	Blinko & Blinko [2015] FamCAFC 146 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Isles & Nelissen [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69 Makita (Australia) Pty v Sprowles (2001) 52 NSW LR 705 R & C [1993] FamCA 62
Division:	Division 2 Family Law
Number of paragraphs:	109
Date of last submission/s:	16 May 2023
Date of hearing:	3 to 5 April 2023
Place:	Canberra
Solicitor for the Applicant:	Self-Represented
Solicitor for the Respondent:	Self-Represented
Counsel for the Independent Children’s Lawyer:	Dr Leslie
Solicitor for the Independent Children’s Lawyer:	Legal Aid ACT

CAC 1139 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR YORK Applicant
AND:	MS YORK Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE MANSFIELD
DATE OF ORDER:	7 AUGUST 2023

DATE	EXHIBIT NO	DESCRIPTION OF EXHIBIT	TENDERED BY:
3.04.2023	A1	Affidavit of Mr York filed 6.03.2023 (except for first sentence of para 32)	AF
3.04.2023	A2	Affidavit of Mr York filed 29.03.2023	AF
4.04.2023	A3	Photographs of the parties taken from 2005 to 2023	AF
5.04.2023	A4	Text messages from early 2021	AF
4.04.2023	R1	1 page of notes of Dr U dated 7.2.2019	RM
4.04.2023	R2	Page 57 of tender bundle – case notes of 19.11.19 of CCO Ms Z	RM
4.04.2023	R3	Affidavit of Ms York filed 21.3.2023	RM
5.04.2023	R4	Affidavit of Ms W filed 24.3.2023 (M’s counsellor)	RM
3.04.2023	C1	ICL’s tender bundle – pages 10-14, 25	ICL
3.04.2023	C2	ICL tender bundle – page 7, entry on 23 Dec 2018	ICL
3.04.2023	C3	Page 51 ICL tender bundle limited to under heading MH	ICL
3.04.2023	C4	Affidavit of Dr E filed 19.10.2022	ICL
3.04.2023	C5	ICL tender bundle – Conference of Expert Witness Statement 1 March 23	ICL
4.04.2023	C6	Notice of reporting obligations dated 16 March 2023	ICL
5.04.2023	C7	Case notes from 19 Feb 21 of Ms AA – page 89 and 90 of ICL tender bundle	ICL
5.04.2023	C8	Affidavit of Dr B filed 24.2.2022	ICL
5.04.2023	C9	Sex offender treatment program exit report 21.12.2020 page 100 ICL tender bundle	ICL
5.04.2023	C10	ICO Assessment report 6.12.2019 page 106 ICL tender bundle	ICL