FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAGLIO & WALBURNS | [2020] FCCA 2739 |
| Catchwords: FAMILY LAW – Parenting – unacceptable risk – alleged sexual abuse – supervised time – FaceTime communication – injunction. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 65D, 65DA, 65DAA, 65DAB, 68L & 69ZT Federal Circuit Court Act 1999 (Cth), ss.68, 70 & 71 Evidence Act 1995 (NSW), ss.55, 56, 57, 69 & 140 |
| Cases cited: Goode & Goode [2006] FamCA 1346 M & M (1988) 166 CLR 69 |
| Applicant: | MR GAGLIO |
| Respondent: | MS WALBURNS |
| File Number: | SYC 7474 of 2018 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 29 & 30 April and 1 & 18 May, 10 June & 3 July 2020 |
| Date of Last Submission: | 3 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maurice |
| Solicitors for the Applicant: | Fox & Staniland |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Coppertree Family Law |
| Counsel for the Independent Children's Lawyer: | Mr Murray |
| Solicitors for the Independent Children's Lawyer: | Coast Law |
THE COURT ORDERS THAT
By consent, all previous orders made in relation to X born in 2013 (“the child”), pursuant to the Family Law Act 1975 (Cth) (“the Act”), be vacated and discharged.
By consent, the mother have sole parental responsibility for the child.
By consent, the mother inform the father in writing of any major decision that she makes in relation to the child’s medical treatment, education and religion.
By consent, the child live with the mother.
The father spend supervised time with the child as follows:-
(a)For twelve (12) months from the date of these orders, for three (3) hours every two (2) months;
(b)Commencing twelve (12) months from the date of these orders, for three (3) hours every three (3) months;
(c)The father’s time be supervised by the staff of the organisation known as either B Families or C Families or such other Contact Service (“the supervisor”) as agreed between the parties in writing;
(d)The day, date and time for such contact to occur, is to be determined by the mother, in consultation with the supervisor;
(e)The father be solely responsible for the costs of the supervisor;
(f)The mother and the father forthwith contact and complete any intake assessment or procedures required by the supervisor;
(g)The parties shall comply with all reasonable requests and directions of the supervisor; and
(h)The father’s sister(s) and the father’s mother are permitted to attend the father’s supervised time.
By consent, the father be at liberty to communicate with the child in writing on the child’s birthday, Easter and Christmas.
Such communication, referred to in order 6, may be by a letter or a card and/or a gift on each occasion subject to the following conditions:
(a)the father shall ensure at all times:
(i)that the contents of his communications with the child and gift for the child are age-appropriate;
(ii)that he not refer in such communications to the mother or any member of the mother's family; and
(iii)that he not make any comment which refers to the previous or existing living arrangements for the child or propose changes to those arrangements.
The father is restrained from contacting the child other than as provided for by orders 5, 6 and 7, above.
Up until the child turns 13 years of age, the mother shall be entitled to read any written communication and examine any gift herself or by arrangement with any adult nominated by her have that person review correspondence and gifts and, in the event that she considers the communication does not comply with these orders, shall return the material to the father.
The mother provide to the father, within 14 days of today’s date, a copy the child’s National Disability Insurance Scheme (“NDIS”) plan.
By consent, the mother and the father provide each other with their address, telephone number and email address and inform the other in writing of any change thereto.
Both parties be at liberty to obtain any information they may require from the child’s school such as school reports, school photographs and newsletters and these orders are sufficient authority for such purpose.
The appointment of the Independent Children’s Lawyer is discharged.
The matter is, otherwise, removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Gaglio & Walburns is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7474 of 2018
| MR GAGLIO |
Applicant
And
| MS WALBURNS |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed on 22 November 2018, the applicant father (“the father”) sought final parenting orders in respect of the child of the parties relationship, X born in 2013, currently aged 7 years, (“the child”) as follows:
(1)That the respondent mother (“the mother”) and father have equal shared parental responsibility for the child.
(2)That the child live with the mother.
(3)Not pressed
(4)That upon the child commencing school, the chid shall spend time with the father during school term from after school Friday until before 4.00pm Sunday each alternate weekend.
(5)That the child spend time with each party during school holiday periods as follows:
(a)With the mother:
(i)In odd numbered years from the conclusion of school on the last day of the school term (being the last day that the child is required to attend school) until 6.00pm on the midpoint of the school holidays; and
(ii)In even numbered years from 6.00pm on the midpoint of the school holiday period until the commencement of school on the first day of the following school term (being the first day that the child is required to attend school).
(b)With the father:
(i)In even numbered years from the conclusion of school on the last day of the school term (being the last day that the child is required to attend school) until 6.00pm on the midpoint of the school holidays; and
(ii)In odd numbered years from 6.00pm on the midpoint of the school holiday period until 4.00pm the day prior to the commencement of school on the first day of the following school term (being the first day that the child is required to attend school).
(6)That for the purposes of these orders, the midpoint of the school holidays is the day which is the middle day between the last day the child is required to attend school and the first day the child is required to attend school and in the event the school holiday periods has an even number of days the midpoint shall be the earlier of the two middle days of the school holiday period.
(7)Notwithstanding the provision of these orders, the child shall spend time with each party during the Christmas school holidays as follows:
(a)With the father in each odd numbered ear from 4.00pm on Christmas Eve until 4.00pm on Christmas Day and in each even numbered year from 4.00pm Christmas Day to 4.00pm Boxing Day.
(b)With the mother in each even numbered ear from 4.00pm on Christmas Eve until 4.00pm on Christmas Day and in each even numbered year from 4.00pm Christmas Day to 4.00pm Boxing Day.
(8)Notwithstanding the provisions of these orders, the child shall spend time with each party during the Easter celebration as follows:
(a)In even numbered years:
(i)From after school the Thursday before Good Friday, or from 4.00pm the Thursday before Good Friday if Easter falls during the school holidays until 6.00pm Easter Saturday with the father; and
(ii)From 6.00pm Easter Saturday until before school on the Tuesday after Easer Monday or 11.00am on the Tuesday after Easter Monday is Easter falls during the school holidays with the mother.
(b)In odd numbered years:
(i)From after school the Thursday before Good Friday, or from 4.00pm the Thursday before Good Friday if Easter falls during the school holidays until 6.00pm Easter Saturday with the mother; and
(ii)From 6.00pm Easter Saturday until before school on the Tuesday after Easer Monday or 11.00am on the Tuesday after Easter Monday is Easter falls during the school holidays with the father.
(9)That the child spend time with the party with whom they are not otherwise living on the child’s birthday, as agreed by the parties and failing agreement, as follows:
(a)If a school day, from after school until 8.00pm, that same day; and
(b)If a non-school day from 1.00pm until 8.00pm that same day.
(10)That in the event that the child is in the care of the mother on Father’s Day, the chid shall spend time with the father from 9.00am until 4.00pm on Father’s Day and the above orders as to the mother’s time with the child shall be suspended accordingly.
(11)That in the event that the child is in the care of the father on Mother’s Day, the child shall spend time with the mother from 9.00am on Mother’s Day until the commencement of school the following day and the above orders as to the father’s time with the child shall be suspended accordingly.
(12)For the purposes of these orders, the changeover for the child at the beginning of the father’s time shall take place at the child’s school/day care during school term and at the McDonalds Restaurant in Town D during school holidays and the changeover for the child at the end of the father’s time shall take place at the father’s mother’s residence in Suburb E.
(13)Regarding the child attending school:
(a)The mother shall provide a copy of these orders to the child’s school in order to authorise the child’s schools to send copies of all newsletters, school reports and any other information to the father.
(b)Both parties are at liberty to discuss matters relating to the child with the relevant school teachers, principal and other care providers; and
(c)That either of the parties be at liberty to attend any significant school events and any significant extra-curricular or sporting events.
(14)That both parties be at liberty to communicate with the child by telephone or skype at all reasonable times and the parent with whom the child is living is to encourage the child to answer the phone call.
(15)That each party keep the other informed of their current residential address, mobile and landline telephone numbers and advise the other party of any change thereto within 24 hours of such change.
(16)That the mother shall authorise the child’s medical practitioners to communicate with the father and a copy of these orders shall serve as authority to this effect.
(17)That each party shall follow the advice and direction of the child’s treating health practitioners (and including but not limited to the child’s GPs, dentists, counsellors and any other specialists) in relation to the child’s health treatment and any medication and shall ensure that any treatment and/or medication is provided to the child whilst the child is in that party’s care and ensure that the child is transported to any necessary appointment whilst in that party’s care. Reasonable efforts shall be made to consult with the other party before starting any new treatment.
(18)If the child is injured, requires serious medical treatment or hospital admission, the parent who has the care of the child shall notify the other parent by telephone or text message as soon as possible and the other parent shall be invited to attend the place of treatment.
The Court has set out the father’s above proposal so that it may be considered in terms of the context of the progression of the matters and orders sought at final hearing, noting that his position, substantially, changed, as reflected in the orders, set out in paragraph 14, below, which the father then, largely, adopted.
The mother in her Amended Response filed on 7 April 2020, as varied in final oral submissions, sought her own final parenting orders as follows:
(1)That the mother have sole parental responsibility for the child.
(2)That the child live with the mother.
(3)The mother shall advise the father in writing of any major decisions she has made in relation to the child.
(4)The father shall be at liberty to communicate with the child in writing on the child's birthday, Christmas and Easter each year.
(5)Such communication, referred to in order 4, may be by a letter or a card and/or a gift on each occasion subject to the following conditions:
(a)the father shall ensure at all times:
(i)that the contents of his communications with the child and gift for the child are age-appropriate;
(ii)the father shall not refer in such communications to the mother or any member of the mother's family; and
(iii)the father shall not make any comment which refers to the previous or existing living arrangements for the child or propose changes to those arrangements.
(6)The father is restrained from contacting the child other than provided for by order 4, above.
(7)The mother shall be entitled to read any written communication and examine any gift herself or by arrangement with any adult nominated by her, have that person review correspondence and gifts and in the event that she considers the communication does not comply with these orders, shall return the material to the father.
(8)Within 14 days of these orders, each party is to notify the other of an emergency contact telephone number and address to be used by the other as required and keep the other advised of any changes to these details in a timely manner.
(9)Both parties are at liberty to obtain any information they may require from the child's school such as school reports, school photographs and newsletters and these orders are sufficient authority for such purpose.
On 6 February 2019, this Court made, inter alia, the following orders:
(1)Pursuant to s.68L of the Family Law Act 1975 (“the Act”), an Independent Children’s Lawyer be appointed for the child.
(2)That, until further order, the child shall live with the mother.
(3)That, until further order, the child spend supervised time with the father for 3 hours each alternate Saturday, upon the following terms:
(a)The supervisor of the time spent by the child with the father shall be the staff of the organisation known as F Contact Centre, Children’s Contact Service or such other Contact Service (“the supervisor”) as agreed between the parties.
(b)Each party shall forthwith contact and satisfactory complete an intake assessment or procedures required by the supervisor.
(c)The time that is spent by the child with the father each alternate Saturday shall commence at the time designated by the supervisor.
(d)The costs of the supervisor shall be met by the father.
(e)The mother shall cause the delivery of the child to and collection of the child from the supervisor at the commencement and conclusion of the time to be spent by the child with the father.
(f)The parties shall comply with all reasonable requests and directions of the supervisor.
(4)That, within 7 days of the making of these orders, the father and mother will submit to hair follicle testing at an accredited clinic, with the father and mother to provide no less than 3 centimetres (or such length as may be directed by the facility for testing) of hair for testing, and the father and mother shall be restrained from taking any steps to interfere with the test result, including cutting or dying his hair before the test.
(5)That, pursuant to order 4 herein, each party will pay their own costs associated with such testing.
(6)That the parties jointly appoint a Part 15 Single Expert as follows:
(a)Within 14 days the father nominate 3 experts with their cost and CV to the mother;
(b)Within a further 14 days the mother shall select one of the nominated experts;
(c)The father shall draft a joint letter of instructions within a further 14 days;
(d)The father shall be responsible for the cost of the expert.
On 16 August 2019, this Court made, inter alia, the following orders, by consent, and pending further order:
(1)Omitted.
(2)That the child spend time with the father as agreed between the parties, and failing agreement upon the following terms:
(a)Between 11.00am and 2.00pm every third Sunday commencing 18 August 2019;
(b)Such time to be supervised by an agreed supervised contact service provider, noting the current supervised contact service provider is G Contact Centre;
(c)Such time to take place at an agreed location, and failing agreement at H Play Centre in Suburb J (or surrounding area if the weather permits);
(d)The mother to cause the delivery of the child to and collection of the child from the supervisor at the commencement and conclusion of the time to be spent by the child with the father;
(e)The costs of the supervisor shall be met by the father;
(f)The parties shall comply with all reasonable requests and directions of the supervisor
(3)That the parties do all acts and things necessary to ensure the child has FaceTime communication with the father as agreed between the parties, and failing agreement on the following terms:
(a)Every Tuesday and Saturday at 5:30pm;
(b)With the father to call the mother’s mobile to initiate the FaceTime contact with the child.
(4)That the father hereby be restrained from instigating text message conversations with the child, but be permitted to respond to text messages sent to him by the child from the mother’s mobile phone.
On 11 November 2019, Dr K (“Dr K”) produced the Part 15 report contemplated in order 6, as referred to in paragraph 4, above.
On 25 November 2019, the Court made, inter alia, the following orders, by consent and pending further order:
(1) A copy of the report by Dr K be released to the Legal Aid Commission of NSW or any other mediator appointed or agreed upon, by the parties, for the purpose of conducting a mediation of the issues in dispute between the parties.
(2)Within 7 days, each parent is to contact F Contact Centre or other similar organisation, for the purpose of attending the earliest possible appointment for intake for parenting and separation or similar course, and they are to attend such course as early as possible and they are each to provide a Certificate of attendance and completion to the other parent (or via their solicitor) as soon as possible.
(3)Without admission, both parties are restraining from discussing with the child or in her presence, the allegations made by the mother as to the father’s behaviour, and from allowing any other person to do so.
(4)No later than 14 days from today, the mother shall provide to the father:
(a)a copy of the child’s National Disability Insurance Scheme (“NDIS”) plan and all associated documents;
(b)a list of the child’s treating practitioners.
(5)Each party is at liberty to contact the school for the purpose of obtaining copies of all school reports, school photographs and anything else parents would normally be entitled to receive.
(6)Within 10 weeks of today’s date, the father shall do all acts necessary to submit to hair testing to be conducted by an authorised service and for that purpose, the father must attend upon his general practitioner to take a 6cm sample of his hair and authorise him or her to forward the sample in accordance with the protocols of the Testing Laboratory.
(a)The father must authorise the Testing Laboratory to carry out hair testing in respect of all drugs covered by the analysis.
(b)The father must provide a hair sample and do all things necessary to cause the hair tests to be performed forthwith.
(c)Until such times as a hair sample is provided in accordance with these orders, the father shall be prevented by injunction from cutting his hair.
(7)The Independent Children’s Lawyer is entitled to request no more than once per calendar month, that the father or mother attend an authorised laboratory for the purposes of undertaking a chain of custody urinalysis testing in accordance with Australian Standards 4803-20008; and
(a)Such request is to be made in writing via the party’s solicitor (if represented);
(b)The party is to attend within 48 hours of the request being received; and
(c)The party tested shall provide a copy of the results to the Independent Children’s Lawyer and the other party or their solicitor (if represented), within 24 hours of receipt.
On 14 February 2020, the matter was allocated a 3 day hearing commencing on 29 April 2020 and trial directions were given.
On 1 April 2020, the matter was listed for a callover on 8 April 2020 to determine whether the hearing could proceed in light of the impact of COVID-19.
On 8 April 2020, the Court made the following directions and orders:
(1)The hearing dates commencing on 29 April 2020 (for 3 days) be confirmed.
(2)That testimony be permitted to be given by video link and/or audio link pursuant to s.66 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”).
(3)Pursuant to s.71 of the FCC Act, a person who is to give testimony by video link and/or audio link be permitted to swear an oath or make an affirmation either:
(a)by video link and/or audio link; or
(b)through the oath or affirmation being administered by another person who is present at the place the person giving the testimony is located.
(4)Counsel be permitted to deliver oral submissions by way of video link and/or audio link pursuant to s.68 of the FCC Act.
(5)If in the course of examination or the appearance of a person by video link and/or audio link it is necessary to put a document to that person, a copy of the physical document be transmitted to the Court or that person as relevant, pursuant to s.70 of the FCC Act.
(6)Neither party nor the Independent Children’s Lawyer shall record any part of the hearing without the leave of the Court.
(7)That robes are not to be worn for the final hearing on the above dates.
(8)That the Independent Children’s Lawyer provide a paginated tender bundle to the Court by way of email.
(9)That if either party has documents which they seek to tender in addition to the Independent Children’s Lawyer’s tender bundle – that party shall provide a paginated bundle of said documents to the Court by way of email.
(10)The father do one (1) further hair follicle test in terms of order 6 made on 25 November 2019 [as referred to in paragraph 7, above], such test be conducted within 7 days of today’s date with the mother to pay the costs of same.
On the hearing, Mr Maurice of Counsel appeared for the father and Mr Kelly of Counsel appeared for the mother. Mr Murray of Counsel appeared for the Independent Children’s Lawyer.
On the last day of the hearing, the father, initially, proposed that the Court make interim (not final) orders, as set out in Exhibit “A”, which were to the following effect:
(1)The child shall live with the mother.
(2)That the parties do all acts and things necessary to ensure the child has FaceTime communication with the father as agreed between the parties, and failing agreement on the following terms:
(a)Every Tuesday and Saturday at 5.30pm;
(b)With the father to call the mother’s mobile to initiating the FaceTime contact with the child;
(c)With the FaceTime calls to commence on the first Tuesday following the making of these orders.
(3)No later than fourteen (14) days from today, the mother shall provide to the father:
(a)A copy of the child’s NDIS plan and all associated documents; and
(b)A list of the child’s treating practitioners.
(4)Each party is at liberty to contact the school for the purpose of obtaining copies of all school reports, school photographs and anything else parents would normally be entitled to receive.
(5)That the child spend supervised time in the father’s care as follows:
(a)Time to be supervised by a professional supervised contact service provider such as C Families or B Families.
(b)On Saturday every 6 weeks commencing Saturday 18 July 2020;
(c)For a period of 2-3 hours (depending on availability of the supervision contact service provider);
(d)With such time to take place in the Sydney area; and
(e)At the father’s cost.
(6)The parties shall complete and sign all paperwork required by the supervised contact service provider and otherwise to all acts and things necessary to facilitate the supervision of the child’s time in the father’s care pursuant to order 5.
(7)That the father cause his mother and sister to attend upon Dr K for assessment at such time(s) as she may direct with regard to:
(a)Any matter relevant to sections 60CC(3)(f)(ii), 60CC(3)(g) of the Act;
(b)Whether the father’s mother and sister, together or collectively, are appropriate supervisors of any time the child would spend with the father; and
(c)Any other matter Dr K regards as relevant to the terms of reference referred to herein.
(8)That Dr K prepare a report addressing the said matters referred to above.
(9)That the father be responsible for Dr K’s fees.
(10)That the father within 28 days attend upon a psychiatrist qualified to treat the father with regard to drug and alcohol dependence and any personality or behavioural traits that the psychiatrist considers needs to be treated. [noting that the father had nominated a Dr L, a psychiatrist specialising in substance abuse and mood disorders].
(11)That the father comply with all directions of that psychiatrist including, but not limited to, attending drug testing and/or other tests such times and for such frequency as he or she shall direct.
(12)That the father shall continue the said treatment for as long as the psychiatrist considers is necessary.
(13)That the father be responsible for the psychiatrist’s fees and any testing he is required to undertake.
(14)That the father within 28 days shall attend a “men’s behavioural change program” conducted or as recommended by F Contact Centre, subject to the availability of the program with F Contact Centre, noting that the father is currently waitlisted to attend. [noting that the father said he had booked in to the “Taking Responsibility” course as referred to by Dr K]
(15)That the Court grants leave, and the father shall provide to all of his treating medical practitioners referred to in these orders with a copy of Dr K’s Reports and any reasons for judgment in these proceedings.
(16)That the Independent Children’s Lawyer is authorised to speak with all of the father’s treating medical practitioners without limitation.
(17)That the matter be stood over for mention on a date convenient to the Court and the parties.
(18)That all parties are at liberty to re-list the matter on giving 7 days’ notice to the Court and the other parties.
The father sought leave to rely on his affidavit sworn and filed on 29 June 2020 (some 3 pages in length) in support of the interim orders that he sought, as set out in paragraph 12, above. The mother and the Independent Children’s Lawyer opposed such leave being granted. The Court granted leave and provided an opportunity for the father to be cross examined in respect of his affidavit.
Similarly, on the last day of the hearing, during the course of oral submissions, the Independent Children’s Lawyer’s position crystallised and orders were sought, in accordance with Exhibit “ICL1”, as follows:
(1)That all previous orders made in relation to the child, pursuant to the Act, be vacated and discharged.
(2)That the mother be granted sole parental responsibility for the child.
(3)That the mother inform the father in writing of any major decision that she makes in relation to the child’s medical treatment, education, and religion.
(4)That the child reside with the mother.
(5)That the father spend supervised time with the child as follows:-
(a)For twelve (12) months from the date of these orders, for three (3) hours every two (2) months;
(b)Commencing twelve (12) months from the date of these orders, for three (3) hours every three (3) months;
(c)That the father’s time be supervised by the staff of the organisation known as F Contact Centre or such other Contact Service (“the supervisor”) as agreed between the parties in writing;
(d)The day, date and time for such contact to occur, is to be determined by the mother, in consultation with the supervisor;
(e)That the father be solely responsible for the costs of the supervisor;
(f)That the mother and the father forthwith contact and complete any intake assessment or procedures required by the supervisor;
(g)That the parties shall comply with all reasonable requests and directions of the supervisor; and
(h)That the father’s sister and the father’s mother are permitted to attend the father’s supervised time.
(6)That the father be at liberty to communicate with the child in writing on the child’s birthday, Easter and Christmas.
(7)That the mother provide to the father a copy of each of the child’s school reports and school photographs (subject to the father reimbursing the mother for any costs incurred in obtaining the photographs),the child’s NDIS plan, and any written report by the child’s treating practitioners.
(8)That the mother and the father provide each other with their address, telephone number and email address, and inform the other in writing of any change thereto.
Following receipt of the orders proposed by the Independent Children’s Lawyer, Mr Maurice confirmed that the father had changed his position and was then agreeable to those orders and, accordingly, did not seek to proceed with his application for interim orders which was then withdrawn. There was, in those circumstances, no need for the father to be further cross examined as Mr Maurice indicated that the father would not rely on his affidavit, as referred to in paragraph 13, above.
The father, however, then sought an additional order for there to be some FaceTime communication between himself and the child. The Court received from Mr Maurice an updated minute of proposed orders then sought by the father. This minute was made Exhibit “C” and proposed orders identical to those set out in paragraph 14 above with the addition of a proposed order 9, as follows:
(9)That the parties do all acts and things necessary to ensure the child has FaceTime communication with the father as agreed between the parties, and failing agreement on the following terms:
(a)Every Tuesday and Saturday at 5.30pm;
(b)With the father to call the mother’s mobile to initiating the FaceTime contact with the child;
(c)With the FaceTime calls to commence on the first Tuesday following the making of these orders.
Mr Kelly confirmed that the mother now consented to proposed orders 1, 2, 3, 4, 6 and 8 of the Independent Children’s Lawyer’s proposed orders. Given that those are the same orders as sought by the father, those orders can, therefore, be made by consent. Under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-sections (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
The mother, accordingly, now only presses for her orders 5, 6, 7 and 9, as set out in paragraph 3, above.
The father and the Independent Children’s Lawyer seek orders 5 and 7 in paragraph 14, above. The father presses for order 9, as set out in paragraph 16, above.
The father’s position had, as said, substantially, changed noting as Mr Maurice submitted that the father, while not accepting that he had sexually abused the child, now acknowledged that any time with the child had to be supervised at least for the foreseeable future. The father acknowledged that he was accepting responsibility for the matters raised against him in the proceedings. Mr Kelly submitted that there was no evidence to support that submission, in that regard and that what the father had accepted responsibility for was being caught out in not revealing to Dr K what he should have. The Independent Children’s Lawyer supported supervised time in accordance with the proposed orders, set out above. The mother opposed any face to face supervised time between the child and the father.
The Court is of the view that the father should have supervised time with the child as proposed by the Independent Children’s Lawyer and agreed to by the father for the reasons set out, further, below. These include that, on the evidence, no finding could be made that the father had sexually abused the child. The mother did not ask that the Court make a positive finding to that effect, in any event. The Court is, further, satisfied that the father does not pose an unacceptable risk for the child based on any allegations of sexual abuse made in these proceedings.
The Court is, however, of the view that the father does pose an unacceptable risk for the child in terms of the probable potential for serious harm arising from the father’s mental health issues, drug related matters, criminal activities and personality issues as identified by Dr K in her oral evidence referred to below. Dr K’s evidence was that supervision of the father’s time with the child was required to ensure that the child was, otherwise, safe and secure and the Court accepts the Independent Children’s Lawyers submission that such supervision will, more than likely, encourage the development of an ongoing relationship with the child in a safe and secure environment. The father’s ongoing substance abuse issues, which have been evidenced by the records tendered and which can also be inferred as continuing as a result of his failure to provide clear test results, notwithstanding orders that such tests be carried out, are of such a nature that the Court is of the view that it is in the best interests of the child, considering the need to protect her from physical or psychological harm and from being subjected to or exposed to abuse, neglect, or family violence that his time be supervised by a professional contact service, as promoted by the Independent Children’s Lawyer.
The Court accepts that the frequency of the supervision as proposed by the Independent Children’s Lawyer for 6 times in the first year will enable the child to resume contact and a relationship with the father noting that the child has now not spent any time with the father for a substantial period of time. Following the first 12 months of such supervised time, the Court is of the view that such further supervised time should be reduced to every 3 months, being 4 times a year, as recommended by Dr K. The Court accepts the mother’s evidence that, if such supervised time was ordered, she would implement it. There was no evidence that her parenting of the child would be, negatively, impacted upon by such an order. No party sought a restraint against the mother from either preparing the child for the father’s time or asking the child questions following that time. Dr K’s evidence was that it would not be helpful for the child to undergo such a process and the Court would be hopeful that the mother would take that position on board in terms of her ongoing care of the child.
The Court is of the view that the injunction sought by the mother in her proposed order 6, as set out at paragraph 3, should be made. The Court accepts that the evidence supports the position that the father, unless so injuncted, is likely to engage with the mother in such a way as to put pressure on her to do that which he wants. That position was supported by both the mother and the Independent Children’s Lawyer in the development of their orders which did not promote a provision, not unusual in parenting matters, where the parties could agree to other arrangements outside those made by the Court’s orders in terms of their written agreement to the same. This position was adopted so as to avoid the mother being put under pressure by the father to agree to such other arrangements. A provision which precludes the father from having such an opportunity is clearly in the interests of the mother and the Court accepts given the potential negative impact on her and her parenting is also in the best interests of the child.
Similarly, for the same reasons set out above, the Court does not support an order for FaceTime communication given the position adopted by the mother. The Court is of the view that the personality issues identified by Dr K with the father are likely to provide a forum in FaceTime communication for him to exert inappropriate influence on either the child and/or the mother. Given that the Court considers supervision important, the Court accepts the mother’s submission that such FaceTime communication would, essentially, be unsupervised time and, therefore, contrary to the best interests of the child.
The Court is of the view that the communications between the father and the child, as agreed to between the parties, should include a requirement that the father ensure that their content is age appropriate, not reference the mother or any member of her family and not make comment about the previous or existing living arrangements for the child or propose changes to those arrangements.
The Court is, further, of the view that the mother should be entitled to read any written communication and examine any gifts in accordance with her proposed order 7, up until the child turns 13 years of age. After that age, the Court is of the view that the child would have sufficient maturity to be able to receive, without vetting, the father’s communications.
The Court does not support the Independent Children’s Lawyer’s and the father’s proposed orders for the mother to provide copies of school reports and other documents, given the mother’s position as referred to above and the need to reduce any potential for there to be negative interactions between her and the father. The Court will, however, order the mother provide one (1) document, being the child’s NDIS plan, with 14 days of orders. Otherwise, the Court is of the view that the order as sought by the mother, in her proposed order 9, whereby the parties can access such documents individually should be made as an order in the best interests of the child in minimising the potential for ongoing parental conflict and for the mother to not be further involved with the father or placed under pressure by him to comply with his wants.
Principles to be applied and procedure to be followed
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
Section 65DAB of the Act, requires the Court to have regard to any parenting plans entered into between the parties. This is not relevant on the facts of this case.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act) (not relevant here) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for her parents to have such equal, shared parental responsibility (s.61DA(4) of the Act).
The making of an order for equal shared parental responsibility is, however, not of itself, determinative of the amount of time that the child is to spend with her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA(1) & (2) of the Act.
By virtue of s.65DAA(1) & (2) of the Act, the Court must, positively, consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” with both of his/her parents.
The parties have agreed that the mother should have sole parental responsibility and, accordingly, the Court does not apply the presumption. The Court has also had regard to the parties’ practical inability to work together to reach any accommodation with each other that can work in the interests of the child, their inability to communicate (other than through lawyers), the father’s lack of respect for the mother’s parenting capacity and, in particular, the multiplicity of complaints made by him, ongoing mistrust issues between the parties, the lack of any goodwill between them and the persistent and unrelenting nature of their dispute in support of this position.
The parties have agreed that the child live with the mother, substantially, reflective of her historical role as primary care-giver.
The issue of any other non-consensual parenting orders, including spend time arrangements, needs to be determined in light of the best interests of the child.
The best interests of a child remain the paramount consideration: s.60CA of the Act.
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
“(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application but which may also be, usefully, examined here, namely:
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
The mother’s position was that the child was at risk of sexual abuse in the father’s care and was, further, exposed to an unacceptable risk in terms of the other issues identified in the father’s personality, as referred to below.
Sexual Abuse and Unacceptable Risk
In M & M (1988) 166 CLR 69, the High Court of Australia in dealing with the Court’s obligation to decide allegations of sexual abuse stated at pages 76-77:
“…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 ALJR 499; McKee v. McKee (1951) AC 352. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. 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: cf. J. v. Lieschke (1987) 162 CLR 447.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent 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. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 33,. There Dixon J. said:
"The seriousness of an allegation made, the
inherent unlikelihood of an occurrence of a given
description, or the gravity of the consequences
flowing from a particular finding are
considerations which must affect the answer to the
question whether the issue has been proved to the
reasonable satisfaction of the tribunal. In such
matters 'reasonable satisfaction' should not be
produced by inexact proofs, indefinite testimony,
or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk…
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her…”
The High Court of Australia in M & M went on to conclude that the Court must, to achieve a “proper balance” between: “the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”, apply a test 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.”
The doctrine of “unacceptable risk” involves the Court in a different determination, based on whether there is present an unacceptable risk of the child being exposed to harm. If there is such a risk, then an order for parental responsibility or for even supervised time may not be in the best interests of a child (B & B (1993) FLC 92-357).
A finding of unacceptable risk is a finding that continued or unregulated contact might do more harm than good. See Fogarty J. ‘Unacceptable Risk – A Return To Basics’ (2006) 20 (3) Australian Journal of Family Law 249 at 262 at 263.
The Court accepts that the “unacceptable risk” test can apply to cases of “family violence” and in particular to circumstances where physical violence is perpetrated against children or in front of children and is not limited to cases of sexual abuse alone. However, this would depend upon the severity of that violence, its history and the circumstances of the case. It should not be forgotten that the test was devised for the purposes of dealing with the vexed considerations relating to allegations of sexual abuse. It is a test that is relevant to this most severe form of child abuse. It is a test that has been devised having regard to the difficulties in positively proving sexual abuse. The test does not arise as a corollary of someone seeking to deny parental responsibility or to assert a no time or contact order. It is not a “catch all” argument that a loosely framed case can find solace and protection in. It is a test that arises out of the nature of the specific allegations made.
The Court notes the decision of the Full Court of the Family Court of Australia in Johnson & Page [2007] FamCA 1235. Although this was a sexual abuse case, the relevant legal principles apply equally to cases of serious harm. The Full Court discussed various authorities since M & M which have dealt with the doctrine of “unacceptable risk” and cited NapiervHepburn (2006) 36 Fam LR 395 as approving (by implication) the following quoted passage from Fogarty J’s discussion in N & S & The Separate Representative (1996) FLC 92-655 at 82,713.
“...Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657 Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child”.”
“In the Court of Appeal, [1994] NZFLR 26 Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-34:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the Courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a Court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child...”
Fogarty J continued:
“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 the particular case fall, and to explain adequately their findings in this regard.”...
After some discussion as to whether a Court should make a positive finding as to abuse, at 82,715 Fogarty J’s discussion ends with:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis in Johnson & Page].”
In W & W Abuse Allegations: Unacceptable Risk [2005] FamCA 892 the Full Court of the Family Court of Australia (Warnick, May & Boland JJ) stated:
The High Court in M & M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk”… However, the questions posed by Fogarty J in N & S, and referred to by us in paragraph 105 do provide a structure or framework which may assist a trial judge…
Paragraph 105 of their decision referred to Justice Fogarty’s discussion in N & S & The Separate Representative (1996) FLC 92-655 where his Honour set out a number of questions as a reminder for a Court to consider when deciding whether an unacceptable risk has been established and where the weight to be given to the various answers to those questions will vary. Those questions are as follows:
What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time has the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?...
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, the Full Court of the Family Court of Australia said:
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times. (para. 19).
The Court must find that there is a proven probable risk of harm that is severe enough to exercise the sparingly used power to limit parental responsibility and/or time as the “last resort”.
The following passage from Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, is apposite:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent 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. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw. There Dixon J said:
'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.'
In the cases of Re David [1997] FamCA 48 and Re B(Alleged Apprehension of Bias) [2003] FamCA 1298, there were unfounded allegations of sexual abuse fabricated by a parent. In those circumstances, the child may be psychologically damaged if he/she grows up to believe that the fabricated acts were true and, in those circumstances, in certain cases, a child may be removed from the fabricating parent’s care.
Evidence
The father relied, subject to all proper claims as to admissibility, on:
a)His Affidavit sworn on 12 March 2020 and filed on 25 March 2020; and
b)The affidavit of his partner, Ms M (“Ms M”), sworn and filed on 25 March 2020.
The father and Ms M were both cross-examined.
The mother relied on:
a)Her Affidavit affirmed on 31 March 2020 and filed on 3 April 2020, including her Proof of Evidence of 1 May 2020 as adopted by her in her evidence in chief;
b)The affidavit of her brother, Mr N (“Mr N”) affirmed and filed on 2 April 2020;
c)The affidavit of her mother, Ms O (“Ms O”), affirmed and filed on 2 April 2020; and
d)The affidavit of her sister, Ms P (“Ms P”), affirmed on 1 April 2020 and filed on 2 April 2020.
The mother, her mother, her brother and her sister were all cross-examined.
The following documents were placed into evidence:
Exhibit No
Document
Tendered by
Court 1
Dr K’s report dated 11 November 2019
Court
ICL1
Independent Children’s Lawyer’s minute of order
Independent Children’s Lawyer
1
Two (2) video clips of a Police interview of the father and transcript provided
Mother
2 (volume 1)
Mother’s documents to the joint expert and subpoenas tender bundle pages 1 to 373
Mother
2 (volume 2)
Mother’s documents to the joint expert and subpoenas tender bundle pages 832 to 1075
Mother
A
Father’s minute of orders
Father
B
Paginated documents consisting of one (1) lever arch binder, tender bundle pages 374 to 831
Father
C
Father’s updated minute of orders
Father
Proposals
The parties and the Independent Children’s Lawyer seek the various competing orders, as set out above.
Issues
The essential issues in dispute the subject of determination are:
a)Whether the father should spend any supervised time the child.
b)Whether the father should spend any FaceTime with the child.
c)Whether the father should be injuncted from communicating with the child save in terms of the written communications with the child as agreed to between the parties and whether such communication should be limited in the terms sought by the mother.
d)Whether the mother should exercise a right to vet the father’s communications with the child and whether that right should conclude at a certain age for the child.
e)Whether the mother should be obligated to forward school information and the like to the father in accordance with the Independent Children’s Lawyers proposal.
Factual Matters
There appear to be a number of relevant, substantially uncontested, facts, as follows:
a)The father was born in 1986 and is, currently, 34 years of age.
b)Ms M was born in 1986 and is, currently, 34 years of age.
c)The mother was born in 1989 and is, currently, 31 years of age.
d)The parties commenced a relationship in mid-2012 and commenced cohabitation in late 2012 at the home of the father’s mother.
e)In 2013, the child was born. The child is, currently, 7 years of age.
f)The parties separated in early 2014, when the child was about 10 months old.
g)The father’s occupation is as a tradesman.
h)The mother’s occupation is as a public servant.
i)The father lives at Q Street, Suburb R with his partner, Ms M who he has been in a relationship with since about 2015.
j)The mother lives at S Street, Suburb T. The mother has not re-partnered.
k)On 22 November 2018, the father commenced these proceedings.
l)In 2019, the child commenced her mainstream schooling in U Kindergarten at V School, Town W.
m)On 6 February 2019, interim orders were made by this Court, at set out in paragraph 4, above.
n)On 14 February 2019, the father’s hair follicle test returned a positive result for cocaine and marijuana.
o)On 7 August 2019, the parties attended mediation.
p)On 16 August 2019, further interim consent orders were made by this Court, as set out in paragraph 5, above.
q)On 30 September 2019, the parties attended upon Dr K for assessment.
r)On 20 October 2019, the father saw the child for the last occasion.
s)On 11 November 2019, Dr K provided her report.
t)On 25 November 2019, further interim orders were made by this Court, as set out in paragraph 7, above.
u)On 2 December 2019, the father’s urinalysis test was positive for marijuana.
v)On 11 December 2019, the father’s urinalysis test was positive for marijuana.
w)On 5 February 2020, the parties attended further mediation.
x)On 11 February 2020, the father had his last FaceTime session with the child.
y)On 8 April 2020, further consent orders were made by this Court, with the father to undertake a, further, hair test with the mother to pay the costs of same, as set out in paragraph 10 above.
The Court notes that each of the parties attended upon a number of drug tests, the subject of orders referred to in paragraphs 4, 7 and 10 above, the results of which are set out in the following schedule, as prepared by the Independent Children’s Lawyer.
The father:
Date of Sample
Type of Sample
Compliance Deadline
Date ordered/
requested by ICL
Date results provided
Results
14.2.19
Hair follicle
13.2.19
6.2.19
Not required
Positive for cocaine and marijuana 2.12.19
Urinalysis
30.11.19
28.11.19
13.12.19
Positive for marijuana
11.12.19
Urinalysis
7.12.19
5.12.19
Positive for marijuana
31.1.20
Urinalysis
4 January 2020 – out of office until 13 January 2020. Father overseas on holiday.
2.1.20
5.2.20
Negative
3.2.20
Hair follicle
3.2.20
25.11.19
21.2.20
Positive for cocaine and marijuana
11.2.20
Urinalysis
5.2.20
3.2.20
13.2.20
Negative
4.3.20
Urinalysis
4.3.20
2.3.20
9.3.20
Negative
3.4.20
Urinalysis
4.4.20
2.4.20
7.4.20
Negative
Not provided
Hair follicle
15.4.20
8.4.20
Not provided
Not provided
The mother:
Date of Sample
Type of Sample
Compliance Deadline
Date ordered/
requested by ICL
Date results provided
Results
12.2.19
Hair follicle
13.2.19
6.2.19
Not required
Negative
Not provided
Urinalysis
30.11.19
28.11.19
Not provided
Not provided
12.12.19
Urinalysis
7.12.19
5.12.19
20.12.19
Negative
16.1.20
Urinalysis
4.1.20
2.1.20
28.1.20
Negative
4.2.30
Urinalysis
5.2.20
3.2.20
13.2.20
Negative
4.3.20
Urinalysis
4.3.20
2.3.20
18.3.20
Negative
4.4.20
Urinalysis
4.4.20
2.4.20
14.4.20
Negative
While Ms M conceded using illicit drugs there were no tests conducted for her. In light of her concession it is likely that any drug test would show a positive result, as submitted by the Independent Children’s Lawyer.
Expert evidence
Dr K’s report (which is Exhibit “Court 1”) was based, as she described, on documents produced on subpoena, the material provided by the parties and the interviews conducted. The Court incorporates the totality of her report, as if fully set out herein.
Specifically, the Court notes the recommendations of Dr K in her report were as follows:
a)If the Court makes a finding that the child has been sexually abused or that there is a risk of sexual abuse in the father’s care, the counselling that she has had would be appropriate, given her age and developmental needs. If the Court makes such a finding, then it would not be appropriate for the child to have unsupervised contact with the father but it would be appropriate for her to have age-appropriate education with respect to protective behaviours.
b)If the Court makes a finding that the child has been sexually abused or is at risk of sexual abuse in the father's care, then it would be appropriate for him to participate in counselling for perpetrators of sexual abuse.
c)If the Court finds that there is no risk of sexual abuse in the father's care, then there would be no need for the child to have any further therapeutic intervention. However, the mother may need professional support and education in order to accept this outcome, to ensure that she does not subject the child to further forensic questioning and/or interviewing and that she understands the risks involved in doing so. The mother may also need some education with respect to normal behaviours with young children and the effects on memory and behaviour of suggestibility and adult questioning.
d)If the Court finds that there is no risk of sexual abuse in the father's care, the mother may continue to scrutinise the child’s behaviour and utterances on return from the father’s care and it is very likely that the mother will continue to make reports to the Police or NSW Department of Communities and Justice (then known as Family and Community Services (“FACS”) given that she, genuinely, believes that the father continues to pose a risk to the child.
e)That there are concerns about the effects on the child of repeated forensic investigations and interviewing. It may, therefore, be appropriate for a neutral nominated professional, such as the child’s general practitioner or school counsellor to be the person to whom any further concerns with respect to disclosures are reported, and that neither parent or other family member engage in any questioning or discussion of these topics with the child. Having a nominated neutral professional may assuage the mother’s anxiety with respect to any future risk.
f)That the child’s time with the father should not be supervised and that the child resume spending alternate weekends with the father so that she has regular and consistent time with him and the paternal family, including extended periods of time during the school holidays.
g)That the father and the mother both receive and are involved in the child’s education health and development and have an opportunity to liaise with the various health practitioners. This is important both so that the child feels supported by both her parents but also so that they may exercise some consistency in their parenting practices of her. It is also important for the child to know and understand that both her parents value her education and health and support her endeavours.
The Court notes that Dr K’s recommendations, substantially, flowed from her view that the father had not sexually abused the child and that the child was not at risk in the father’s care in terms of any sexual abuse allegations made by the mother.
Mr Kelly was concerned that Dr K, at the time of the preparation of her report, had only had regard to the subpoenaed documents produced by FACS. This was, particularly, the case given that Mr Kelly submitted that access to other documents would have demonstrated inaccuracies in the father’s reports to Dr K. For example, the father said that he had never had any criminal involvement with the Police. He said that he could recall when he was a teenager he had one “move on” warning but no criminal charges apart from some speeding fines and that this was blatantly not correct, as substantially conceded by the father.
Mr Maurice was also concerned that the mother had not reported to Dr K that she had used illicit drugs in the past, to the extent now referred to in her evidence in chief. The mother’s trial affidavit was silent as to this issue. The mother corrected her evidence in terms of her proof of evidence on 1 May 2020. This later evidence was, to the effect, that she did not recall telling Dr K that she had never used cocaine. She recalled informing Dr K that she had not used any illicit drugs except marijuana and pills a few times at festivals when she was younger. The mother, however, acknowledged that she had used cocaine with the father about 5 times during their relationship and that she had not told Dr K of this and she confirmed that she should have told Dr K. The mother also said that she had used Duromine (notwithstanding that she had told Dr K that she had not) as she remembered that a friend had given her 5 tablets to see if she could lose weight and that this was the only time that she had used Duromine.
The Court notes that nothing new had been put to Dr K concerning the mother’s allegations of sexual abuse of the child. In that regard, Mr Maurice noted, relevantly, that the father was asked only 6 questions about this topic and no questions were asked of Dr K or Ms M, concerning those specific allegations.
Dr K, in her report, refers to her investigation of the mother’s allegations. At paragraph 95, Dr K states: “When I asked her this direct question [namely whether the father had sexually abused the child] she, initially, said: “yes”. However, she then said that “if it was somebody else [who had sexually abused the child] he [the father] had involvement in it”. She then said that she believed that “something has happened to [the child] when she was in his care and he knew about it”. Dr K asked the mother how she was so sure about her allegations and she said that the child had told her that this is what had happened and that she believed the child. She said that there had also been other times when the child had, directly, told her that the father had sexually abused her. Dr K asked the mother whether there were any other things that made her concerned that the father may be a perpetrator of sexual abuse. She said that the father was “over the top” about “rapists” or about sexual abuse. She opined that the father “overdoes it” and she thought that this had something to do with the father having “an underlying connection” with sexual abuse. Dr K asked the mother whether there had been anything in her history with the father or any of his sexual or other behaviours which had caused her concern previously. The mother told Dr K that there had not been. The mother said that when her sister first told her about the sexual abuse allegations she did not believe her. However, she said “now I 100% believe her [the child]”.
Dr K confirmed that the mother understood that FACS had closed its investigation because the child did not make a disclosure. Dr K asked the mother why she though this might be the case if she was so sure that the child had been abused. The mother said that the child was scared that the father would get into trouble. She said that the child also continually told her that she would like her to tell the people who are questioning her.
Dr K asked the mother whether she was still talking to the child about sexual abuse. The mother referred to notes which she had made on her mobile telephone and said that she recorded everything that the child says. Dr K was critical of that. The mother, in explanation, said that both she and her sister were told by officers of FACS to ask the child questions. Both the mother and her sister, however, conceded that, in hindsight, they would not have so questioned the child and would have done things differently. The mother said that FACS had also informed her not to make new reports if the child makes similar disclosures to her previous ones. The mother said that she had explained to the child that she would be coming to see Dr K and that on 26 September the child made further (but similar) disclosures and that the child had told her: “the game she played was tails in the bum”. She said that the child was very clear and “pointed to her bum”. The mother said that her gestures were unmistakable. She said she asked the child questions such as “what did the tail look like?” and “where does the tail go?”
The mother informed Dr K that she thought that the child needed to talk to somebody with respect to sexual abuse. However, she said that FACS had informed her that sexual abuse counselling was not appropriate because “it would be like putting something in her mouth for her to say”. Dr K asked the mother about the sexual abuse or protective behaviours counselling that the child had received. The mother informed Dr K that the child would not go into the room with the counsellor without her coming in as well. She said that she found the counselling to be very “full on” and perhaps too in depth for the child. She did not think that the child got very much out of the protective behaviours counselling. She said that, at that time, she thought that the child was too young and did not understand the content. In fact, she said the content was very hard for her to understand.
Dr K enquired of the mother about specific conversations or questioning she had had with the child. The mother stated that when FACS first tried to interview the child she would not speak to the staff members and they could tell “she wasn’t ready”. She said that she tried to explain to the child that she needed to tell the people what had happened. She said she kept talking to the child about it and “kept encouraging her”. However, she said that, ultimately, the child did not make any disclosures.
Dr K confirmed that the mother’s position in refusing to allow time between the child and the father was in accordance with advice that she had received from the FACS help line worker.
When Dr K asked the mother whether she thought that the child would be at risk of sexual abuse by the father if the Court allowed unsupervised contact, the mother became very flummoxed. She was unable to answer the question for several minutes and said she needed to think about it. She appeared to be unwilling to answer the question. The mother, eventually, said that she did think that the child would be sexually abused if she had unsupervised contact with the father. She went on to say: “that is why I am fighting”. She said that she does not want the child to be in a situation where she is unsafe and it would be inappropriate to “send her back there again”. She said that she thought the father was “a very selfish person”. She said that she thought that if he has sexually abused her once then he would do it again.
Dr K asked the mother whether she felt that, given her concerns, the father would be at risk of perpetrating sexual abuse on other children. The mother appeared unable to answer that question. She said that this was “a very heavy conversation”. However, again after some lengthy delay she said: “if he can do it to one child he can do it to another child”.
The mother confirmed to Dr K that she did not believe there was anything that the father could do to convince her that the child might not be at such risk. The mother then went on to discuss with Dr K things that she had heard or seen on the news about paedophiles who were released from gaol and then re-offend. She reiterated that there was no possibility that she could be wrong. Dr K asked the mother directly whether it could be possible that the child’s early disclosures were misinterpreted and she stated that there was no possibility of that because the child has pointed to the same spot every time, indicating her genitals.
Dr K asked the mother whether she felt that the child should see the father. Initially, she said she thought the child should have ongoing supervised contact with him. Dr K then checked with the mother as to whether she still thought this was the case, given what she had told Dr K about her view of the father’s behaviour. She then said: “I don’t think that she should see him” because it had made the child feel scared.
The Court notes that the father, on assessment with Dr K, presented as a very polite, respectful and considered person. He was appropriately attentive to the interview and had appropriate social skills and presentation. His affect was generally even and measured, although at times he appeared to be emotional, particularly when describing his late father. That emotionality was also observed in his evidence to the Court. Towards the end of the interview, the father spoke with pressurised speech and presented with some intensity. He was very critical regarding the mother’s family and the allegations which had been made. However, he did not display any difficulties with thought, cognition or recall.
The father described a very close relationship with his family being his mother (Nonna) and 2 older sisters. The father’s emotional reaction to the passing of his father in 2012, just before the child’s birth, after being diagnosed with cancer, was evidenced in Court. The father’s family of origin was Italian. The father said that he had a strong and connected family network. He denied any significant adversity or trauma in his family of origin and described positive and good relationships with his parents and siblings.
The father, however, also described some difficulties in his family after his father passed away as he said it was difficult for his mother and sisters because he looked like his late father and perhaps sounded like him and so his sisters and mother found it difficult to be around him. The Court notes that there was some physical disputation between the father and one of his sisters, as referred to in paragraph 231, below.
The father left school at the age of 16 years and worked on his father’s farm after his father became ill. The father then commenced his trade apprenticeship as a tradesman. The family’s farm was sold off and the father’s family owned some properties which the father assists in running.
The Court notes that throughout Dr K’s interview with the father it was recorded that he said things to the child such as: “I have missed you so much”. He also said things such as “did you want daddy to call you last night?” The child indicated that she had wanted the father to call her and he had then told her that she should just ask her mother. In that regard, Dr K noted that the father did have a tendency to elicit positive sentiments from the child, such as asking her if she had missed him and trying to get her to tell Dr K how much she wanted to come to his home (which she did say repeatedly and also spontaneously).
The Court notes that Dr K was of the view that the father has been emotionally needy with the child and has elicited particular behaviours and responses from her which were designed to meet his own needs rather than satisfy her needs. For example, when Dr K observed the father, he was highly attuned to the child saying things such as that she wanted to spend more time with him or spend time at his home. He repeated these things and asked her questions regarding her wanting to spend more time with him. He also spoke at length about missing the child and those sentiments were replicated in the reports from his supervised contact. Dr K notes that while it was entirely understandable that the father missed the child and wished to spend more time with her, he had failed to understand the emotional demands that these exchanges placed on a very young child. Dr K, however, considered his behaviours, in this regard, to be in the mild range and that the child, at her age, was largely oblivious to them.
The Court notes that the mother, on assessment with Dr K, presented as a nervous and softly spoken person. She was polite and respectful, although, at times, she appeared to be unsure as to how to answer questions, particularly with respect to the sexual abuse allegations. In this regard, Dr K’s oral evidence was that her observed uncertainty may have been indicative of some trauma experienced during her relationship with the father.
The mother informed Dr K that she grew up with her mother and older sister and brother. She said her parents separated when she was a baby and she did not have any contact with her father when she was growing up but that she now sees him although the relationship is “a bit standoffish”. Her father had re-partnered and she has 2 half-brothers but that they were not “overly close”. She said that she had seen them every few months in the past but does not appear to have any ongoing contact with them. She indicated that her biological father was “into drugs” when she was younger, including some alcohol abuse. Clearly, some of these matters in the mother’s family of origin have been reflected in her relationship with the father.
While the mother started Year 12, she left halfway through that year. She later achieved her qualifications via a traineeship at a previous employer.
The mother reported that she had a very close relationship with her brother, sister and mother. Her brother is now married with a 4 year old child “LL”. The mother said that her brother works fulltime and lives in Sydney but that they see one another regularly. The mother said that her sister, Ms P, lives close to her on the Region AA and is not partnered and does not have children. The mother said that her mother lives on the Region AA and she also has a great deal to do with her and the child.
The Court accepts Dr K’s assessment that the child has a strong Italian cultural heritage and that contact with her paternal family will allow her to develop this important aspect of her identity and sense of belonging. During the interview with Dr K the father spoke to the child in Italian going through simple numbers. The supervised time orders promoted by the Independent Children’s Lawyer will enable this cultural heritage to be promoted.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
The Court finds that this factor does not apply to the child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The Court accepts that the mother has taken on the responsibilities of ensuring that the child’s various issues have been appropriately dealt with in terms of the engagement with services, medical practitioners and schools, as referred to in paragraphs 202 to 205, above. The father has agreed to an order for the mother to have sole parental responsibility and has accepted that she has appropriately cared for the child in terms of her exercise of that responsibility as a parent to date.
The Court accepts that the orders promoted by the Independent Children’s Lawyer will enable the father to initially (for a period of 12 months) consolidate a relationship with the child by way of 6 supervised visits for 3 hours and will enable the father, thereafter, to maintain a relationship by way of 4 visits for 3 hours every 3 months. This time to occur in a supervised environment is reflective of the deficiencies in the father’s behaviour (as noted in factor (j) below) which, negatively, impacts on his exercise of responsibilities as a parent, as identified by Dr K and as accepted by the father.
(j) any family violence involving the child or a member of the child's family;
The mother’s evidence was that the father had spat in her face and that his behaviours towards her exhibited aggression. The Court accepts that the father can exhibit such aggression and that this weighs strongly in favour of supervision of his time with the child going forward.
The Court accepts Dr K’s view that the father presented as a person who demanded a high degree of loyalty from those close to him and, if he felt undermined or undervalued, he had the propensity to unleash his anger, even against his own family. Further, his use of cannabis and cocaine may exacerbate these personality characteristics leading him to be at risk of further episodes of poor impulse control. His poor impulse control being also negatively impacted upon by his use of marijuana, steroids and excess alcohol consumption. These all weigh in favour of supervision of his time with the child.
The mother reported to Dr K that there was one occasion where the Police were called. She said the situation was that the child was in the father’s care but he was on the phone to her. She said that the father was “yelling really loudly” and a passer-by made a Police report. The mother confirmed that the Police had telephoned her and asked her to take the child to the local Police station for “a sighting” which she did.
The mother reported to Dr K that she did not feel anxious when she saw the father. She said that it can feel awkward and she can feel her stomach sink but that she did not experience any other symptoms of anxiety.
The mother acknowledged that while the father would become agitated and aggressive he was never physically violent with her. She said that she recalled a trip to Queensland when the father became “scary” when he was in a rage. She said that the father had later told her that he had punched a hole in a wall and that the Police had put him in gaol or in “lock up” because of his aggressive behaviour.
The mother reported to Dr K that the father had, at various times, yelled abuse and screamed and on one occasion to the point where his family were considering calling the Police. The mother recalled that this was a short time after the father’s father had passed away so the family did not call the Police.
The mother informed Dr K that the father had been aggressive on an ongoing basis after the parties’ separation. She said that the father became, particularly, jealous of her male friends and other men being around the child. She thought that perhaps the father was concerned that “someone was going to replace him”. She said that the father became very jealous of her brother and was very concerned that her brother was going to take over “the father role”, which, she said, was definitely not the case. The Court observed the father’s negativity towards the mother’s brother and that he believed that his role as the child’s father had been undermined by the mother and her family.
The mother also asserted that she had been bombarded with many “abusive text messages” from the father and that he tended to manipulate things so that he made out that things were always her fault.
Dr K asked the child whether anybody in her family had ever hurt her and she told Dr K they had not. Dr K asked her if she had ever been scared of anybody in her family and she told Dr K that she had not. The Court accepts that, while there have been conflict issues between the father and the mother, the child has, to a large extent, been protected from that conflict.
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The Court accepts that there was a provisional AVO taken out against the father by the NSW Police to protect Ms M but that no final AVO was made as referred to in paragraph 159, above.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court accepts Dr K’s evidence that these proceedings need to end, particularly given the child’s disability issues and that the mother needed to have the opportunity of getting on and focusing on the child and not running this or further litigation.
The Court accepts the Independent Children’s Lawyer’s submission that all which the father has suggested he can do, as set out in paragraph 12 above, can be attended to by him now including attending at programmes for anger and impulsivity management and drug and alcohol abuse. Further, the father would need to demonstrate over an extended period of time significant changes, as Mr Murray colourfully submitted, he would need to come “bristling with medallions draped around his neck, certificates in his hands and real progress having been made” and that “one swallow does not make a summer” and that the father needed to have a “reasonable flock of swallows” to show real change, in that regard.
(m) any other fact or circumstance that the court thinks is relevant
The Court finds that the mother’s attitude, as primary care giver, to the child in spending time with the other parent, should be carefully considered. There is a need for that parent to be assured of the child’s protection. The Court should take into account any anxiety on the part of the primary caregiver concerning a child’s exposure to potential harm, where such anxiety is likely to impact adversely on that parent’s care giving ability. Whilst a subjective test is employed in that a parent must genuinely hold that belief, it must still be shown that the belief is not irrational or baseless. That is, there must be some evidence upon which that party’s belief is based. Without such evidence, the genuineness of the belief itself must be called into question. The Court is satisfied that there is such evidence to ground the mother’s belief in relation to the behavioural issues identified in the father but not with respect to her concerns about the child being sexually abused by the father or of being at such a risk in the father’s care. The Court is not, however, satisfied that the mother’s compliance with the supervised time orders as sought by the Independent Children’s Lawyer is likely to expose the child to any negative consequences in terms of her own parenting of the child. See paragraph 177, above.
Reasonably practicability of ‘spending time’
The Court, given the father’s agreement to the parenting orders referred to above, does not need to consider the reasonable practicability of the child spending time pursuant to s.65DAA(1) of the Act.
Time
The Court accepts Dr K’s view that she had considerable concerns about the impact on the child of having no contact with the father. The child presented to Dr K as deeply loyal and very bonded and connected with the father. Dr K was of the view that she derived great pleasure from her relationship with him and had come to understand him to be a loving and protective adult in her life. This weighs in favour of the father having some time with the child supervised as sought by him and the Independent Children’s Lawyer. Such time would be important given Dr K’s observation that the child’s identity formation is also linked to the father and to extended members of the paternal family with whom she has had close relationships with prior to the mother’s allegations. The Court accepts that the supervised time sought by the father will also enable his sister and mother to attend with him. That will be of benefit to the child in relation to these aspects of her identity formation.
Supervised time
The basis for a supervision order was described by Carmody J in Murphy & Murphy [2007] FamCA 795 as follows:
“Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.”
The Court accepts that the father’s time should be supervised as sought by him and by the Independent Children’s Lawyer. As conceded by Mr Kelly, provided such time continues supervised there would also be no risk as to any sexual abuse of the child. The Court accepts that the father’s use of cocaine and cannabis is likely to have a deleterious impact on his mood regulation, impulse control and propensity to anger as opined by Dr K. Similarly, his pattern of substance use is likely to mean that he has a lower tolerance for frustration and will be less patient and emotionally regulated than he would otherwise be if he was abstinent. This clearly weighs in favour of supervision, as accepted by the father.
The Court is, however, aware that supervision is not an appropriate long-term measure given the age of the child. In that regard, the Court notes Dr K’s observation that if such time remains supervised there are ongoing risks to the child. As Dr K indicated supervision, over time, will become intrusive for the child and she may come to question why her contact with the father has to be limited to short time periods in rather artificial settings. While the child has a recollection of the father's home and her previous consistent experiences there, Dr K was concerned that supervision could reinforce the notion that the father was incapable of caring for her, presented a risk or was in some other way deficient. Dr K was, however, of the view that given the issues surrounding the father, as identified above, such time needed to be supervised. The father accepted that position. In terms of weighing risks to the child, the Court is of the view that the child’s connection with the father should be maintained by way of the supervised time orders sought by the Independent Children’s Lawyer and accepted by the father, as that supervision was, appropriately, protective of the child but still enabled the child to maintain a link with the father and her extended paternal family in circumstances where, as the child matures, she will have the opportunity of maintaining a connection with the father which is unlikely to be maintained by the mother given the mother’s views of the father. Further, the more limited time for supervision means that the child, as she matures, is not likely to be exposed to the risks of manipulation by the father or inappropriate modelling or a general resistance to it over time.
FaceTime
The Court notes that Dr K enquired of the mother as to her experience in terms of FaceTime. The mother confirmed that the father had questioned the child about a photograph of her and a friend on the mother’s Facebook page and had said to the child that that photograph should be “mummy and you”. The mother said that she then spoke to the father [on the Skype call] and had said to him: “that is not for you to comment about”. She said that when this happened the child became uncomfortable, did not wish to communicate further and hid. The mother said that she did not want the child to feel like this again. The mother said that the father can also be frustrated and annoyed and she had seen this in one Skype call. While she acknowledged that she sought to facilitate telephone calls by assisting the child she considered that it was her supervising these calls. The mother reported her concerns that the father was an “easy to anger” sort of person and felt that he could be manipulative and aggressive and that it was difficult for her to deal with him. Both of the parents reported to Dr K about their tense communication and conflict when these telephone calls were taking place. The Court accepts, as Dr K concluded, that neither parent appears to have significant insight with respect to the effect of their conflict on the child and the importance of protecting her from it. The mother’s position, in this regard, weighs in favour of orders which minimise her involvement with the father, his potential manipulation of her and the child and, therefore, the risk for the child to be exposed to any ongoing parental conflict.
The Court accepts Dr K’s observations of the mother who presented as somewhat naïve or immature with respect to her own assertiveness and decision making. The Court is of the view that the father having FaceTime, which would involve the mother’s participation, is likely to have the effect of the father seeking to impose his will on the mother who does not appear to have the capacity to withstand it, without exposing the child to conflict.
The Court accepts Dr K’s view that the father was primed to elicit affirming responses from the child and, at times, may become quite emotional with her. The supervised notes record this position. Further, this gives the Court concern that the father has failed to understand the sort of loyalty bind and anxiety which can be produced in the child noting her particular sensitivities and loyalties and her earnest wish to please the adults in her life. The Court notes Dr K’s concerns following her observations that the father had told the child directly that if she wanted to see him more that she should ask the mother’s permission to do so. In Dr K’s view, this was manipulative of the father, placing the child directly in the role of “go between” and charging her with an adult responsibility in a situation of high conflict. This position, similarly, weighs against the father having FaceTime with the child as promoted by him. The Court, in those circumstances, will not make order 9 as promoted by the father in paragraph 16, above.
Other parenting matters
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands (2007) 37 Fam LR 103).
While the mother confirmed with Dr K that she had not sent the father information about the child’s medical and developmental appointments she said that that was the case because he had “never really asked” for it. She confirmed that she did not mind sending such documents to him. This position was contrary to her proposed order that the father obtain information concerning schooling himself rather than her providing that information. Nevertheless, the Court is of the view that if she was required to so provide that information it is likely that it will not occur and risks the parties coming into further dispute and conflict. This weighs in favour of the mother’s proposed order for the parties to be at liberty to obtain any information that they may require from the child’s school themselves with the Court’s order to that effect to be sufficient authority to obtain that information.
Restraints & injunctions
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
The Court is of the view that there is sufficient evidence particularly in relation to the father’s behavioural issues identified by Dr K and as referred to above to ground a restraint as against the father in terms of the matters set out in the mother’s proposed orders 5 and 6 as referred to in paragraph 3, above. Accordingly, the Court will make those orders in terms of order 8, as set out at the commencement of these reasons, noting the father may still have contact with the child in accordance with the supervised time orders so made.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the non-consented to orders the subject of the father’s and the Independent Children’s Lawyer’s proposals (as modified by the orders proposed by the Court) are, otherwise, in the best interests of the child and, accordingly, the Court will so order.
I certify that the preceding two hundred and fifty-one (251) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 7 October 2020
- AGLC
- GAGLIO & WALBURNS [2020] FCCA 2739
- Case
- [2020] FCCA 2739
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders, including the allocation of parental responsibility, the child's living arrangements, and the nature and extent of the father's contact with the child. A key issue was the establishment of a framework for supervised time and communication between the father and the child, designed to mitigate any unacceptable risk. The court also considered the discharge of previous orders and the appointment of an Independent Children's Lawyer.
The orders were made by consent of the parties. The mother was granted sole parental responsibility and the child was to live with her. The father was permitted supervised time with the child, with the frequency and duration of this time increasing after twelve months. This supervised time was to be facilitated by an external organisation, with the father bearing the costs. The father was also permitted limited written communication with the child on specific occasions, subject to strict conditions designed to ensure the content was age-appropriate and did not refer to the parents' arrangements or family members. The mother retained the right to review this communication. The father was restrained from any contact beyond that expressly permitted by the orders.
By consent, the mother and father were to provide each other with contact details and inform of any changes. Both parents were granted liberty to obtain information from the child's school. The Independent Children's Lawyer was discharged, and the matter was removed from the active pending cases list.
Orders
Orders of the court
1.
By consent, all previous orders made in relation to X born in 2013 (“the child”), pursuant to the Family Law Act 1975 (Cth) (“the Act”), be vacated and discharged.
2.
By consent, the mother have sole parental responsibility for the child.
3.
By consent, the mother inform the father in writing of any major decision that she makes in relation to the child’s medical treatment, education and religion.
4.
By consent, the child live with the mother.
5.
The father spend supervised time with the child as follows:-
(a) For twelve (12) months from the date of these orders, for three (3) hours every two (2) months;
(b) Commencing twelve (12) months from the date of these orders, for three (3) hours every three (3) months;
(c) The father’s time be supervised by the staff of the organisation known as either B Families or C Families or such other Contact Service (“the supervisor”) as agreed between the parties in writing;
(d) The day, date and time for such contact to occur, is to be determined by the mother, in consultation with the supervisor;
(e) The father be solely responsible for the costs of the supervisor;
(f) The mother and the father forthwith contact and complete any intake assessment or procedures required by the supervisor;
(g) The parties shall comply with all reasonable requests and directions of the supervisor; and
(h) The father’s sister(s) and the father’s mother are permitted to attend the father’s supervised time.
6.
By consent, the father be at liberty to communicate with the child in writing on the child’s birthday, Easter and Christmas.
7.
Such communication, referred to in order 6, may be by a letter or a card and/or a gift on each occasion subject to the following conditions:
(a) the father shall ensure at all times:
(i) that the contents of his communications with the child and gift for the child are age-appropriate;
(ii) that he not refer in such communications to the mother or any member of the mother's family; and
(iii) that he not make any comment which refers to the previous or existing living arrangements for the child or propose changes to those arrangements.
8.
The father is restrained from contacting the child other than as provided for by orders 5, 6 and 7, above.
9.
Up until the child turns 13 years of age, the mother shall be entitled to read any written communication and examine any gift herself or by arrangement with any adult nominated by her have that person review correspondence and gifts and, in the event that she considers the communication does not comply with these orders, shall return the material to the father.
10.
The mother provide to the father, within 14 days of today’s date, a copy the child’s National Disability Insurance Scheme (“NDIS”) plan.
11.
By consent, the mother and the father provide each other with their address, telephone number and email address and inform the other in writing of any change thereto.
12.
Both parties be at liberty to obtain any information they may require from the child’s school such as school reports, school photographs and newsletters and these orders are sufficient authority for such purpose.
13.
The appointment of the Independent Children’s Lawyer is discharged.
14.
The matter is, otherwise, removed from the active pending cases list.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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