Bant v Clayton

(a) For a period of two (2) months on a monthly basis and for a period of three (3) hours on each occasion; and

(b) Thereafter, on a fortnightly basis subject always to the availability of the Contact Centre to facilitate same.

(a) Each party shall contact the Contact Centre within seven (7) days and do all acts and things necessary to facilitate the father's time with the children at the Contact Centre, including but not limited to attending an intake assessment; and

(b) In the event that the Contact Centre cannot facilitate the time in accordance with this order, then the father shall spend such time with the children at the Contact Centre as the Contact Centre is able to offer.

1. The father must obtain a referral within fourteen (14) days of these orders and attend upon a psychiatrist for a full psychiatric evaluation and report to identify any mental health issues and treatment options, with such report to be provided to the Independent Children's Lawyer within seventy-two (72) hours of receipt of same.
2. For the purposes of Order 3 herein, the father be at liberty to provide to the psychiatrist copies of the following material:

(a) Single Expert Family Report prepared by Dr B dated 30 May 2025;

(b) Mother's affidavit filed on 5 August 2025;

(c) Father's affidavit filed on 22 August 2025;

(d) Exhibit F1 in these proceedings being six (6) videos which gave rise to the criminal charges against the father;

(e) Exhibit F3 in these proceedings being the Provisional Apprehended Domestic Violence Order and the material filed in support of the same;

(f) Exhibit F4 in these proceedings being a letter from the Office of the Department of Public Prosecutions to the mother dated 23 August 2023;

(g) Exhibit F5 in these proceedings Statement of Agreed Facts as found at page 135 of the mother's court book;

(h) Ex Tempore reasons given by the Court this day; and

(i) A copy of the Orders made this day.

1. The mother shall provide a redacted copy of the children's most recent treatment reports from their therapists or any of their allied health professionals to the Independent Children's Lawyer as soon as they become readily available and the Independent Children's Lawyer will cause these reports to be provided to the father's solicitors.

1. Pursuant to section 91B of the Family Law Act 1975 (Cth), the Secretary of the Department of Communities and Justice, New South Wales, is requested to intervene in these proceedings in relation to the children X born in 2019 and Y born in 2021.
2. The Court is to notify the Secretary within forty-eight (48) hours of this order.
3. The solicitor for the mother and the solicitor for the father are to forward to the solicitor for the Secretary of the Department of Communities and Justice, New South Wales, at its Head Office in Suburb F not later than 4.00pm on 22 September 2025 copies of the following material:

(a) Single Expert Family Report prepared by Dr B dated 30 May 2025;

(b) Mother's affidavit filed on 5 August 2025;

(c) Father's affidavit filed on 22 August 2025;

(d) Exhibit F1 in these proceedings being six (6) videos which gave rise to the criminal charges against the father;

(e) Exhibit F3 in these proceedings being the Provisional Apprehended Domestic Violence Order and the material filed in support of the same;

(f) Exhibit F4 in these proceedings being a letter from the Office of the Department of Public Prosecutions to the mother dated 23 August 2023;

(g) Exhibit F5 in these proceedings Statement of Agreed Facts as found at page 135 of the mother's court book;

(h) Ex Tempore reasons given by the Court this day; and

(i) A copy of the Orders made this day.

1. Upon request from the nominee of the Secretary, the Registry Manager shall permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.
2. The Department is requested to advise in writing and within twenty-eight (28) days whether they intend to intervene in these proceedings.
3. On or before 31 March 2026 the parties and their legal representatives are to participate in a court ordered mediation at Legal Aid NSW on a date and time to be nominated by the Independent Children's Lawyer.
4. The matter otherwise remains listed for the resumption of final hearing part-heard on a date to be advised, pending response from the Department of Communities and Justice pursuant to Order 6 herein.
5. The costs of the father and the Independent Children's Lawyer with respect to the hearing this day be reserved.

1. From the funds held in the controlled monies account each party shall receive a sum of $50,000 directed to the trust account of the parties' respective solicitors.

1. The Independent Children's Lawyer is requested to make a mandatory report to the Department of Communities and Justice, New South Wales, pursuant to her obligations under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
2. The Department of Communities and Justice, New South Wales, is requested to undertake a psychosexual assessment of each parent to assess his/her risk for sexual offending.

1. The Department of Communities and Justice, New South Wales, is requested to undertake a parenting capacity assessment of each parent in circumstances where:

(a) The court is gravely concerned about the behaviour of each parent as evidenced by the six (6) videos dated [date redacted] 2020 and marked as Exhibit F1 in these proceedings;

(b) In about 2021, the child, X, was diagnosed with an autism spectrum disorder and Global Developmental Delay.

(c) The child, Y, has similarly been diagnosed with an autism spectrum disorder and Global Developmental Delay; and

(d) The mother also asserts that the child, X, has non-verbal and sensory issues.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym of Ruiz & Dorsey has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The following paragraphs reflect ex tempore reasons for orders, which I made on 8 September 2025 with respect to:

(a) The admission into evidence of video footage, which gave rise to the father being charged with an offence under the Crimes Act 1900 (NSW), namely, a sexual act with a child who is under the age of ten (10) years; and

(b) My decision to adjourn a trial, which was listed before me on 8 September 2025 and to otherwise:

(i) Invite the Minister for the Department of Communities and Justice to intervene in the proceedings;

(ii) Request the Department to undertake a parenting capacity assessment of each parent; and

(iii) Request the Department to undertake a psychosexual assessment of each parent to assess his/her risk for sexual offending.

1. The reasons were given in short form.[1]

1. At paragraph 59 of her affidavit filed on 5 August 2025, the mother says as follows:

On [date redacted] 2020, [the father] was naked in the lounge room. While he was sitting on the lounge, [the male child] pulled himself up onto the couch and came over to [the father's] knees and touched [the father's] penis. [The father] laughed and got an erection. I understand the video of this incident is already with the Court.

1. I understand the video of this incident is already with the Court. The incident is referred to in material filed in support of a provisional apprehended domestic violence order, which was made on 14 April 2022. The father was charged under the Crimes Act 1900 (NSW) with carrying out a sexual act with a child under ten (10) years, and the father pleaded guilty. Although the father did so, he gives an explanation for the events which occurred at paragraph 64 of his affidavit filed on 22 August 2025. I will not recite that explanation now, save and except to say that the father places an innocent complexion on what occurred.
2. When considering the submissions of the parties, I am mindful of the Full Court's decision in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 ("Isles"), which summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 ("M v M"). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need to be proven on the balance of probabilities.
3. The Court in Isles also said of the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows:
   1. Fogarty J stated it is necessary for a trial judge 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 and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm...

1. In Isles, the Court at [35] went on to quote Tree J in Bant v Clayton [2015] FamCAFC 222; (2015) 53 Fam LR 621:
   1. Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs**.** The weighing of those two considerations - even accepting they may be imprecisely expressed within parameters - will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
2. The Court agreed with and adopted Austin J's judgment in Fitzwater & Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin's judgment includes the following:
   1. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
   2. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children's sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
3. I have formed a view that in order to contemplate the risk of some future occurrence of harm as between the children and the father, I ought to have regard to the video footage of the events which occurred in [date redacted] 2020. Further, the mother clearly anticipated that the video material will be used in evidence, and I refer to paragraph 105 of the Family Report dated 30 May 2025.[2] Particularly, the Single Expert recorded the following:

With respect to the sexual assault against [the child], [the mother] suggested that this occurred about 18 months prior to the dissolution of the relationship between the parties. [The mother] claimed that [the father] asked her to record a video on her phone that he thought would be funny and that he could send to his mother. [The mother] told me that [the father] sat naked on the couch and he encouraged [the child] to play with his genitals. [The mother] suggested that [the father] had done this before. She apparently resisted his suggestion to video this but [the mother] claimed that [the father] responded by stating "if you don't do it, you'll regret it".

...

[The mother] also reflected that she believed she could use the video if she ever left [the father] and this is exactly what she did.[3]

1. This being so, I do not, frankly, understand the mother's opposition to my receipt of the video material.
2. I also consider that the video material is more probative than prejudicial to any party. Accordingly, I will grant leave to the father to rely upon the video footage of [date redacted] 2020, and to the extent that it is necessary for me to do so, I will grant all legal representatives and any persons in the courtroom today with a certificate pursuant to section 128 of the Evidence Act 1995 (Cth) certificate in relation to any criminal offence which may occur by viewing the footage.

INVITATION TO THE MINISTER FOR THE DEPARTMENT OF COMMUNITIES AND JUSTICE TO INTERVENE IN THE PROCEEDINGS AND ADJOURNMENT OF THE TRIAL

1. These are parenting proceedings brought pursuant to Parts VII and VIII of the Family Law Act 1975 (Cth) (as amended). Insofar as the parenting proceedings are concerned, the proceedings relate to a male child born in 2019 and a female child born in 2021 ("the children). The children are aged five (5) years and four (4) years, respectively. The parties separated in April 2022, and the mother commenced proceedings on 5 April 2023.
2. At the time that the mother did so, the mother sought a final order that she have sole parental responsibility for the children, and an order that the children live with her.
3. On 3 September 2025, the mother filed an Outline of Case Document, which again did not propose any order for time between the children and their father. Among other allegations, the mother's case is grounded at paragraph 59 of her affidavit filed on 5 August 2025 wherein the mother says as follows:

On [date redacted] 2020, [the father] was naked in the lounge room. While he was sitting on the lounge, [the male child] pulled himself up onto the couch and came over to [the father's] knees and touched [the father's] penis. [The father] laughed and got an erection. I understand the video of this incident is already with the Court.

1. The father responds to the allegation at paragraph 64 of his affidavit filed on 22 August 2025. As a consequence of footage taken by the mother on [date redacted] 2020 but not produced to police until 2022, the father was charged with carrying out a sexual act with a child under ten (10) years of age pursuant to section 66DC(a) the Crimes Act 1900 (NSW). The father pleaded guilty to that offence.
2. Today, I made an order admitting the video footage of 2[date redacted] 2020 into evidence. It comprises of six (6) separate video clips. The evidence was played in open court. As a consequence of viewing that footage, counsel for the Independent Children's Lawyer has expressed a concern that each parent may present a risk to the children. I agree with that assessment. Further, and given her concern, and until further evidence is produced, the Independent Children's Lawyer has advised me that at this juncture, she cannot support any order for time-spending between the children and either parent.
3. I am appalled by the mother's behaviour and what appears to be an encouragement of the male child to touch his father's penis. I am equally disturbed by the fact that the mother has never given an accurate or fulsome account of the events of [date redacted] 2020 until today. I express that concern in circumstances where, as I say, these proceedings have been on foot since 5 April 2023.
4. In circumstances where the Independent Children's Lawyer and the Court have a concern that each parent may present a risk to the children, I will accede to the application made by the Independent Children's Lawyer to refer the competing applications to the Department of Communities and Justice and otherwise adjourn the proceedings.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Pursuant to Family Law Act 1975 (Cth), s 69ZL.

[2] Although I referred to paragraph 105 of the Family Report the reference, in fact, ought to have been paragraph 104 of the Family Report.

[3] Family Report dated 30 May 2025, paragraph 104.