Corson & Corson [2020] FamCAFC 311

Corson & Corson [2020] FamCAFC 311 is a Full Court Decision dealing with an appeal from an interim parenting order.  It canvasses the issues associated with unacceptable risk and supervision of time, how to manage a parent who might be considered a risk but ensuring they have unsupervised time and how the court managed the need for therapeutic assistance for the other parent.

The first orders were made on 11 December 2018.  The children were to spend two periods of 3 and 9 hours respectively of unsupervised time with the father each week. In addition, “a suite of injunctions were ordered restraining the father from, amongst other things, accessing pornography, exposing himself or sending or receiving sexually explicit messages when the children were in his care”.

Child X, who was 7 years of age, made disclosures of being sexually abused by the father. The mother withheld the children and on 15 October 2019, a second set of orders were made by consent without admission of any wrongdoing by the father. There was a contested hearing on 1 July 2020 and a third set of orders were made with a second set of reasons. 

The third set of orders reverted to the arrangement of 12 hours unsupervised time each week but extended the supervision of the father’s time with the children for a further eight weeks to allow the mother to “obtain therapeutic assistance to adapt to the order for unsupervised time”.  The mother appealed the order granting the father unsupervised time notwithstanding that the suite of injunctions remained.

In the reasons, the Full Court found that the Trial Judge had “explicitly, on several occasions, identified in the second reasons that the task confronting him was one of risk assessment”.

The mother also argued “that supervision would allay her fears that the father may sexually abuse the children when spending time with them and so would mitigate against the risk she might “˜emotionally collapse'” or “that her hypervigilance might result in her questioning of the children, or otherwise undertaking investigations, after they returned from the father”.

The father and the Independent Children’s Lawyer contended consistent with the opinion of a single expert that the mother’s emotional distress and hypervigilance ought to be addressed by therapy“.

The Court then went on to consider the authorities that give guidance as to what constitutes an unacceptable risk and the relationship between any such risk and the orders that the court is contemplating“. 

The Full Court started with N and S and The Separate Representative (1996) FLC 92-655 quoting a passage in which Fogarty J said:

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

The Court considered M v M (1988) 166 CLR 69, a High Court Decision and said:

“It is a mistake to think 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 was trying the party for a criminal offence.

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 best interest to maintain the filial relationship with both parents.”

In Deiter & Deiter [2011] FamCAFC 82, the Full Court said:

“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

The Court then set out some background information.

The father disputed the characterisation “of his behaviour as inappropriate towards his children”.  His case was that the mother’s resistance was based on her anxiety and depression.

The Court at paragraph 36 said:

“There is a difference between a parent undertaking conduct that another parent might find to be unacceptable, and indeed possibly repulsive, and that same activity presenting an unacceptable risk of harm to children.”

The mother had framed the risk in terms of being inappropriate boundaries. The Trial Judge had relied on the expert report of a forensic psychiatrist, Dr B. An important quote from that report is:

” In my mind, the mother’s views of the father have become so contaminated by her emotional repulsion at his actions, that his sexual behaviours have, in her mind, escalated risk to a degree that is not reality based.”

The Trial Judge relied on Dr B. The doctor had stated:

“It is important for the Mother to understand that the Court has, independently of Dr B, and based on the totality of the material before it, also meticulously considered the issues of risk to the children and has come to the same conclusion as Dr B. The Father’s past behaviour was disgusting and inappropriate. Even if it were the case that Dr B was not fully appraised of his misconduct whilst working as an educator, all of that evidence was before the Court and it does not change the Court’s assessment that there is no risk of harm to these children that warrants the continuation, let alone the perpetuation, of supervised contact.”

The Trial Judge had said:

“With great respect to the Mother, and those advising her, it is hard to make sense of her case.”

The appeal failed.

The interesting aspect of this case for me is that the Court considered it was important to introduce a suite of injunctions to manage the father’s behaviour but still was prepared to order unsupervised time, although limited in duration, and contemplated that before the order came into effect, the mother needed a period where she could get therapeutic try to have her accept assistance to the fact that the orders had been made.

Both reinforce for me how difficult a threshold unacceptable risk is to reach.