Aviva and Bentoin

FAMILY COURT OF AUSTRALIA

AVIVA & BENTOIN

[2010] FamCA 1222

FAMILY LAW – CHILDREN – With whom a child lives – Best interests – Risk

APPLICANT:

Mr Aviva

RESPONDENT:

Mr and Mrs Bentoin

FILE NUMBER:

SYC

6210

2009

DATE DELIVERED:

12 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

28,29,30 June 2010

1,2 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Breeze

SOLICITOR FOR THE APPLICANT:

RJ Thomas Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Rees SC, Ms Saw

SOLICITOR FOR THE RESPONDENT:

McLachlan Thorpe Partners

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER:

Ms Clifford

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER:

Legal Aid NSW Sydney

Orders

All existing orders in relation to the children:
M born … December 2000 and
L born … April 2002
(‘the children’)
are discharged.
The maternal grandparents Mr Bentoin and Mrs Bentoin (‘the maternal grandparents’) shall have sole parental responsibility for the children, provided that they consult with both the mother and the father in writing in relation to long-term decisions about their medical treatment, education and place of residence.
The children shall live with the maternal grandparents.
The children shall spend time with the father as follows:
4.1from 10:00am until 2:00pm on three (3) consecutive Saturdays, commencing on 13 November 2010, at the home and in the presence of the paternal grandparents and under the supervision of a private agency nominated by the ICL
4.2for a period of six (6) weeks from 4 December 2010, with the exception of 25 December 2010, from 10:00am until 5:00pm each Saturday
4.3for a further period of six (6) weeks, each alternate weekend from 10:00am on Saturday until 5:00pm on Sunday provided that the children sleep at the home of the paternal grandparents
4.4thereafter,
4.4.1from the conclusion of school on Friday until the commencement of school on Monday in each alternate week and from the conclusion of school on Wednesday until the commencement of school on Thursday in each other week during school term time
4.4.2for one half of all school holidays, as agreed in writing between the parties or being the first half in odd-numbered years and the second half in even-numbered years in default of agreement
4.5from 10:00am until 5:00pm on Fathers Day if the children are not otherwise in the care of the father pursuant to these orders
4.6from 9:00am until 1:00pm on 25 December 2010
4.7on each of the children’s birthdays, from the conclusion of school until 7:00pm on a school day and from 2:00pm until 7:00pm on a non-school day unless the parties otherwise agree in writing.
The children shall spend time with the mother as she and the maternal grandparents agree from time to time, under the supervision of either the maternal grandmother or the maternal grandfather.
6.1 for a period of six (6) months from the date of these orders, the paternal grandmother will collect the children from the home of the maternal grandparents at the commencement of all periods of time with the father and one of the maternal grandparents shall collect them from the home of the paternal grandparents at the conclusion thereof
6.2 after that period of six (6) months, the father is at liberty to collect the children in lieu of the paternal grandmother
The father shall have reasonable telephone contact with the children.
The father is restrained from denigrating the mother, or permitting any other person from doing so, in the presence or hearing of the children.
Each of the parties will pay one half of all fees currently owed to Dr R within 28 days of the date of these orders.
The father has leave to provide a copy of Dr R’s report to his therapist, Ms T
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6210 of 2009

MR AVIVA

Applicant

And

MR and MRS BENTOIN

Respondents

REASONS FOR JUDGMENT

The proceedings

These proceedings concern two little girls:
M born in December 2000 (9)
L born in April 2002 (8).
Their parents are Mr Aviva and Ms Aviva, who are both 31 years old.
The parties to the proceedings are the applicant father and the respondent maternal grandparents, Mr and Mrs Bentoin. The mother was originally a party but discontinued her application for orders that the children live with her. She supported her parents’ application and was a witness in their case.
The father’s primary application was that the children live with him and that he have sole parental responsibility. At the start of the trial, his position was that the children should spend no time with their mother. In a Minute of Proposed Orders handed up during final submissions he proposed that the children spend one day per week with their mother, supervised by one of the maternal grandparents and in their home. The father put a series of alternate proposals, to accommodate the possibility that the children would continue to live with the maternal grandparents or in a shared care arrangement.
The maternal grandparents sought orders that the children live with them and that they have sole parental responsibility. They proposed that the children spend time with the mother under their supervision, a suggestion with which she agreed. The children would spend time with their father each Thursday afternoon at a contact centre, if there is a finding that they would be exposed to an unacceptable risk of sexual or emotional abuse or violence in his unsupervised care. In the event of a finding that there is no such unacceptable risk, the children would spend time with their father each Wednesday night for six months and thereafter each alternate weekend from Friday afternoon until Monday morning and for half of all school holidays.
The ICL proposed that the children live with the maternal grandparents and that they have sole parental responsibility, provided that they consult with both parents in relation to medical treatment, education and their place of residence. In the event of a finding that the father poses no unacceptable risk to the children, they would spend time with him on a graduated basis leading to alternate weekends and half of all school holidays. If there is a finding that the father poses an unacceptable risk to the children, they would spend time with him at a supervised contact centre. The children would spend time with their mother at agreed times, under the supervision of one of the maternal grandparents.

Background

The parents began their relationship early in 1998 and started to live together in 1999. They married in 2000 and separated in January 2003 or November 2003, according to the father and mother respectively.
After the separation, the children lived with their mother at all times until 19 November 2009. The Federal Magistrates Court (‘the FMC’) then made interim orders that they live with the father and spend no time with the mother. On 23 November 2009 the FMC made further interim orders that the children live with the father and spend defined periods with the mother.
On 18 December 2009 the FMC made interim orders that the children live with the maternal grandparents and spend no time with the father. These orders provided that they spend time with the mother by agreement with the maternal grandparents.
The maternal grandparents, who are aged 53 and 52, married in 1979. They have many children, of whom the mother is the eldest, ranging in age from 10 to 31 years. Six of these children live with the maternal grandparents.
The father lives with his parents and two brothers. He has a relationship with Ms S and may live with her in the near future. They began their relationship in February 2008 and separated in August of that year, then reconciled in October 2009. Ms S, who has no children, spent time with M and L in the company of their father during 2008.
The parents disagreed about the time which the children spent with the father after their separation. There were no court orders until 2009 and, on any view, it appears that the children saw him irregularly. The mother alleged that the father was inconsistent in wishing to see the children and he maintained that she was uncooperative and limited their time with him. It may be that there is some truth in each of these allegations.
It was common ground that the mother was employed as a sex worker in 2007 and 2008. The maternal grandmother cared for the children for about three nights per fortnight when she engaged in this work. The maternal grandparents believed that she was employed at a call centre.
The father became aware that the mother was working in the sex industry in 2008. On 30 October 2009 he and his solicitor took it upon themselves to telephone the maternal grandparents and inform them that the mother had been employed in the sex industry. At the time, both parents and their lawyers were at the Local Court in relation to family law proceedings. To say the least, it is surprising that a legal practitioner would choose to be involved in imparting this information to the maternal grandparents. They were not parties to the proceedings at this stage.
The mother alleged that the father was “controlling and abusive both physically and verbally” throughout their relationship. She also alleged that he was and is a regular user of marijuana.
During his oral evidence the father alleged that the mother is not a fit person to see the children at all, because of her work in the sex industry. He also alleged that she was and is a regular user of illicit drugs.
The mother and her brother currently face criminal charges on drug-related issues. On 18 November 2009 police executed a search warrant at the mother’s home and found several items which suggested that a drug was manufactured on the premises. She was charged with possession and supply of prohibited drugs. She will probably be sentenced by the end of 2010 and anticipates that she will receive a good behaviour bond or weekend detention.
Allegations that the father sexually abused both children loomed large in the proceedings. The father vehemently denied that he perpetrated any sexual abuse and maintained that the children were “coached” to make these disclosures.
In late 2009 a JIRT team interviewed M and L and found these allegations to be unsubstantiated. No criminal charges have been laid against the father.
At the end of the trial I made interim orders on the application of the ICL. These orders provided that the children spend 6 hours with their paternal grandparents and uncles each alternate Sunday, under professional supervision, and in the absence of the father.

The Evidence and Witnesses

The applicant father relied on a plethora of affidavits filed in both this court and the FMC. These affidavits were:
1.       affidavit of father filed 7 October 2009
2.       affidavit of father sworn 23 October 2009
3.       affidavit of father sworn 14 November 2009
4.       affidavit of father sworn 15 December 2009
5.       affidavit of father sworn 22 December 2009
6.       affidavit of Ms G sworn 22 December 2009
7.       affidavit of Ms B sworn 20 October 2009
8.       affidavit of Ms B sworn 22 December 2009
9.       affidavit of paternal grandmother sworn 19 October 2009
10.     affidavit of paternal grandmother sworn 15 December 2009
11.     affidavit of paternal grandomther sworn 22 December 2009
12.     affidavit of Ms Y sworn 19 October 2009
13.     affidavit of Ms Y filed 17 November 2009
14.     affidavit of M Aviva sworn 22 October 2009
15.     affidavit of Ms S sworn 7 June 2010
16.     report of Ms T sworn 20 June 2010
I asked the father’s legal representatives why the Rules and court directions as to the filing of affidavits had been disregarded but received no satisfactory answer.
The respondent grandparents relied on the following affidavits:
1.maternal grandmother sworn 13 April 2010
2.maternal grandfather sworn 13 April 2010
3.mother sworn 17 June 2010
4.Mrs C (acquaintance of mother) sworn 6 May 2010
5.Bishop O (Bishop of the Church of Jesus Christ of Latter Day Saints) sworn 6 May 2010
I had the benefit of a report and oral evidence from a single expert, Dr R. I also had the assistance of a Magellan report prepared pursuant to an order made on 12 January 2010.
The father attempted to rely on a report dated 16 November 2009 by a psychologist, Ms T, annexed to her affidavit sworn on 22 June 2010. I rejected this report and now elaborate on my reasons for doing so.
Rule 15.41 provides:
(1) This Part (other than rule 15.55) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and
the consequences of the treatment, including a prognosis;
(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:
(i) about that expert’s involvement with a party, child or subject matter of a case; and
(ii) describing the reasons for the expert’s involvement and the results of that involvement;
(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;
(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).
Example
An example of evidence excluded from the requirements of this Part (other than rule 15.55) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.
(2) Nothing in this Part prevents an independent children’s lawyer communicating with a single expert witness.
Ms T’s report commenced: “[The father] saw me regarding the custody application for his daughters [M] (8 years), and [L] (7 years) on the following dates 20/10/09, 3/11/09, 6/11/09, 10/11/09 and 13/11/09.” The father gave evidence that: “I asked her to write a court report on 27 October 2009”. Obviously, therefore, this report was commissioned by the father to support his case and was not evidence from a treating practitioner.
Leave was never sought for the children to be seen by Ms T, as happened on two occasions, or for her to provide a report for use in the father’s case. As far as I am aware, the ICL was never informed of the children’s attendance on Ms T.
Although Ms T at no time saw the children with their mother or the maternal grandparents, she purported to make a recommendation as to the outcome of these proceedings. She stated: “I respectfully recommend, in the interests of his two daughters, that [the father] be provided with the opportunity to care for his children and be granted custody at this time. He is amenable to the mother having access to the children as the court so decides.” It seemed to me extraordinary that she would make such a recommendation, in the absence of any information about or assessment of the other contenders for parenting orders.
Clearly, Ms T was not a person who has provided treatment for the children. She may be considered a person who has provided treatment for the father but her report ranged well beyond the scope of Rule 15.41(1). Leave was not sought for her to interview the children and the ICL was excluded from this arrangement. Ms T’s report was flawed in that she purported to make recommendations as to the outcome of the proceedings with inadequate knowledge and information. For these reasons, I declined to admit her report into evidence.

Approach To These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
“[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…

In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to my learned colleague for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent
¨   make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable
¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests
A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):
“…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.”
and at page 75:
“…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”
In M and M the High Court identified the relevant standard of proof as (at pp76-77):
“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 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood 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.’”
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
“140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(3) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.”
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
“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. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. 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.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
“In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.”
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: 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 have 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?
I would respectfully observe that this series of questions is a useful, practical tool in the determination of the issue of “unacceptable risk”.

The Allegations of Sexual Abuse

These allegations first arose on 28 November 2009. At this time the children were living with their father and spending defined time with their mother, pursuant to interim orders of the FMC made on 19 and 23 November 2009. The father had taken the children out of their school on 5 November 2009, without the mother’s knowledge or consent, and initiated these proceedings.
On 28 November 2009 Mrs C and her family attended a barbeque at the home of the maternal grandparents. M and L were friendly with Mrs C’s daughter. The mother and maternal grandmother were there and the paternal grandfather was away on a fishing trip. According to the mother, she and Mrs C discussed the children’s thumbsucking, bedwetting and clinginess. She said that she asked Mrs C to speak to the children, to try to find out what was troubling them.
In her affidavit Mrs C gave this account of her conversation with M:
“10.     Later that afternoon, I spoke with [M] and I had a conversation [M] to the following effect:
I said: ‘Honey, would you like to have a little talk?’
[M] said: ‘Yes ok’.
I then walked with [M] to another part of the home which was away from other people so we could have a conversation, and the conversation continued along the following lines:
I said: ‘Honey is everything ok?’
She said: ‘Yes’.
I said: ‘Honey, I’ve noticed that you have been sucking your thumb, how’s everything going?’
She said: ‘I don’t understand why my daddy still has us’.
I said: ‘I know sweetheart, but that’s how it has to be at the moment. Your mummy is trying really hard.’
She said: ‘Dad keeps talking about this affidavit and he’s not very happy about it.’
I said: ‘How do you even know what an affidavit is honey?’
She said: ‘Because my dad has been reading it out to us. Daddy is really angry about it and said he’s gonna kill that bitch.’
I said: ‘Are you ok sweetheart?’
She said: ‘No I want to live with Mummy. Does [Mr C] yell at you?’ [Mr C] is my husband.
I said: ‘No sweetheart, a man is not allowed to talk to people like that.’
She said: ‘Nonno yells at Nonna all the time and calls her a ‘fucking bitch’, ‘stupid’ and ‘idiot’ all the time.’
I said: ‘Sweetheart, a man should never be allowed to talk to anyone like that. I know you’re going through this right now and having to go through it, but just remember when you’re older, no man should be allowed to talk to you like that.’
She said: ‘Does [Mr C] ever hurt you?’
I said: ‘No honey. [Mr C] would never hurt me. He is a confident man, a real man and he would never ever hurt a woman.’
[M] remained silent for a short period of time. She began to crack her toes using her hands. We were both sitting on the stairs at the time. She then started fidgeting and then started to play with her index fingers.
I said: ‘Sweetie, what are you doing with your fingers there?’
She said: ‘It hurts because my Daddy bends it right back.’
I said: ‘Oh honey, you poor darling.’
We both remained silent for a short period of time and [M] then said: ‘Is [E] [my 9 year old daughter] allowed to sleep in your bed?’
I said: ‘[E] has her own bed, but sweetheart if she has a nightmare she can come into our bed.’
She said: ‘Does she have to sleep in your bed?’
I said: ‘No. [E] has her own bed. Why are you asking honey?’
She said: ‘Because my Dad makes us sleep in his bed.’
I said: ‘Well why don’t you get him to get a mattress for you on the floor?’
She said: ‘Because daddy won’t let us.’
I said: ‘Well sweetheart, you tell him that you want your own bed, or you want to sleep on a mattress on the floor and that you don’t want to sleep with him anymore.’
She said: ‘He won’t let me, he yells at me that he will punch me in the head.’
I said: ‘Sweetheart, you have to tell somebody. You have to tell a teacher if something happens, just lock yourself in a room and call 000.’
She said: ‘No, I can’t they’re all on Dad’s side.’
I said: ‘Well darling that’s why you have to tell a teacher, because if you do, then they’ll have to tell somebody for you.’
She said: ‘No I have tried, they won’t believe me.’
I said: ‘If you ever need to sweetheart, you could always come to our house.’
She said: ‘But your door is always shut’
I said: ‘Well sweetheart, just knock on the door, there’s usually someone always home.’
She said: ‘Well what if no-one is home.’
I said: ‘Then just go to the back door.’
She said: ‘Yeah but what happens if all the doors are locked.’
I said: ‘Well sweetheart, we’re usually always home so just try anyway.’
11.      By that time it was getting fairly late and [M] and I then returned to the part of the property where everyone else was. My husband and I took our children and we went home. Prior to leaving, I said to [the mother], words to the effect of: ‘I’ll call you later, there are certain things that [M] has told me that worry me.’
12.      The following day, which was a Sunday, 29 November 2009, I attended with my daughter [E] at the Church of Jesus Christ Latter Day Saints at […]. I went there because my daughter wanted to go. When we arrived at the Church, I saw [the mother] with [L], [M] and her mother. [The mother] said to me that [M] wanted to talk to me. [M] and I walked towards the back of the Church to the grass area and had a further conversation.”
The mother recounted an alleged conversation with the children later that night. In relation to M she deposed:
“59.     [Mrs C] and her family left at approximately 9:30pm. I then readied [M] and [L] for bed, put them to bed and returned downstairs to help my mother. Approximately half an hour later I went upstairs to check on the girls to see if they were asleep. [L] was asleep but [M] was still awake.
She said to me: ‘Mummy, please lie down next to me and give me a hug.’ I did this.
60.      I then had a conversation with [M] to the following effect: I said: ‘[M], you just seem so much happier.’
[M] said: I feel happier since I spoke to [Mrs C]. If anything happens I can come there and [Mr C] will protect me, he’s bigger than Dad.’
61.[Mr C] is [Mrs C’s] husband.
62.      I cannot specifically recollect how the conversation went thereafter. [M] made certain disclosures to me about what she alleges her father has been doing to her and her sister. [M] said the following to me: ‘No body’s allowed to hurt me.’ ‘Daddy touches me down there.’
[M] was pointing between her legs at her vagina as she said this.
I said words to the effect of: ‘Can you point exactly where Daddy touches you?
64.      I was absolutely shocked at these disclosures made by [M] to me and felt quite sickened by them. I did not want to believe that this was happening.
I said: ‘[M], are you telling me the truth?’
She said: ‘Yes.’
I said: ‘I don’t think your dad would do that.’
[M] then said: ‘No no I’m telling you the truth, ask [L].’
[M] then woke up [L] and said to her: ‘I told mum that daddy is touching our private parts and is touching you too.’
I said to [L]: ‘Is [M] telling the truth?’
[L] became upset and said: ‘I don’t know I don’t know if Dad is touching me that way.’
I said: ‘It’s ok darling, you go back to sleep.’ [L] went back to sleep.
I said to [M]: ‘You are such a strong girl. I am sorry if this is happening. No-one is allowed to touch your private parts. Everything is going to be ok, just be strong a little bit longer.’
65.      I was very upset and distraught at what [M] had told me. I did not know what to do or what to say. What struck me as strange was that the manner in which [M] was disclosing these things to me. It was in a matter-of-fact way. I recall asking [M] how long this had been going on and I remember her saying that she did not remember. I recall asking her: ‘What does it feel like?’
To which [M] responded: ‘It feels good but it also feels disgusting.’
66.I simply did not know how to handle this situation.
I said to [M]: ‘I don’t know what I can do, you need to tell somebody else about this and you need to tell Nanna.’
[M] then said: ‘I can’t. It’s best that you tell somebody. You were talking with [Mrs C] tonight, did you want to tell [Mrs C]? Do you feel comfortable telling her?’
[M] said: ‘Yes, I’ll talk to [Mrs C].’”
On 29 November 2009 Mrs C and her daughter attended the Church of Jesus Christ of Latter Day Saints for the first time, with the mother, the maternal grandmother and the children. She had another conversation with M, which she recounted as follows in her affidavit:
“13.     [M] and I had a conversation along the following lines: [M] said: ‘My dad has been touching me.’
I said: ‘Where has he been touching you honey?’
She said: ‘In my private areas.’ She then pointed to her vagina, using her index finger.
I said: ‘Honey are you ok, are you alright?’
She said: ‘Yes.’
I said: ‘Honey, you did the right thing by telling somebody. Are your undies on when he touches you?’
She said: ‘No, he takes them off.’
I said: ‘You poor darling, are you ok?’
She said: ‘Yes.’
I said: ‘You have to tell somebody, you have to tell a teacher. It’s good that you told somebody.’
She said: ‘I couldn’t keep it in any longer.’
I said: ‘Well sweetheart, you’re going to have to tell a teacher.’
She said: ‘But they won’t believe me.’
I said: ‘Have you seen your father’s penis?’
She said: ‘Yes, but he wears boxers to bed. He pushes up onto me.’
I was shocked by what [M] had said to me. Having made that disclosure to me, I made the decision that I had to report the matter to the authorities, in particular DOCS and the Police. However, I wanted to satisfy myself that [M] was in fact telling me the truth.
I then said to [M]: ‘Sweetheart, I have to tell the Police what you have told me. You will have to tell the Police exactly what you have told me. You may have to be looked over by a Doctor, are you going to be ok with that?’
[M] said: ‘Yes.’
I said: ‘Sweety, I am going to have to tell your mum and your nanna, are you ok with that?’
[M] said: ‘Yes.’
I said: ‘Are you ok sweetheart, let’s go and tell your mum and nanna.’
15.      We then returned to the front of the Church. I saw [the mother’s] mother, [Mrs Bentoin], at the bottom of the steps and I approached her. In the presence of [M], I said words to the effect of: ‘[M], honey can you tell your nanna what you’ve just told me?’
[M] then said: ‘Yes.’
I then whispered to [the maternal grandmother] words to the following effect: ‘[M] just told me that she has been molested. I told her that I did not know what to do, and that she should speak to you about it.’
I observed that [the maternal grandmother] was shocked at what I had just said to her. [M] and her grandmother [Mrs Bentoin] then walked away and I saw that [M] was saying something to her grandmother. I did not hear what [M] was saying as I kept away. I then went to look for [the mother] but could not find her. I then returned after having gone to look for [the mother] and saw that she was with her mother [Mrs Bentoin] and [M].
16.      I approached [the mother] and she said to me: ‘I can’t believe this, I can’t take the children back to him, no-one is protecting them.’
I said: ‘You’ve got no choice, there are court orders, but I have to report this to DOCS. I’ve got no choice.’
Both [the mother] and her mother [Mrs Bentoin] said to me words to the following effect: ‘Yes, we understand. You have to report it.’
On the same day, 29 November 2009, the mother asked the maternal grandmother to speak to Mrs C. There followed a conversation between the maternal grandmother, Mrs C and M. The maternal grandmother recounted this conversation in her affidavit as follows:
“37. The following day, on Sunday 29 November 2009, I attended Church, the Church of Jesus Christ and latter Day Saints at […] (‘our church’) with the children, [the mother] and four (4) of my other children.
At approximately 11am [the mother] said to me: ‘Mum go downstairs, [Mrs C] needs to talk to you.’ I went downstairs and [Mrs C] who was accompanied by [M], approached me. [The mother] remained upstairs in the foyer of the Church.
[Mrs C] approached me, she said to me in a very quiet voice, words to the following effect: ‘[M] told me that she has been molested and she doesn’t know what to do. You need to speak to her.’
I was stunned and shocked at what [Mrs C] had just told me. I walked away from [Mrs C] with [M] and had a conversation with [M] to the following effect:
I said: ‘[M], what’s wrong?’
[M] said: ‘Daddy touches my private parts.”
I was shocked at what [M] had just told me. I then asked [M],
Me: ‘Can you tell me what happened?’
[M] ‘He pushes down really hard on me.’
Whilst she was doing this, she was placing her hands on her hips.
[M] said: ‘Then I can’t feel my legs.’
Me: ‘Does he put anything inside you?’
[M]: ‘No.’
She then went on to say:
[M]: ‘Sometimes he covers my mouth.’
I asked her a number of times if she was telling me the truth. I told her that people get into trouble if she wasn’t telling the truth.
[M] said: ‘I’m telling the truth.’
After that conversation, I went inside the church with [M]. I then took [L] aside and had a conversation with her to the effect:-
Me: ‘Is everything ok at home with Daddy?’
[L] seemed very uncomfortable with the question that I had just asked her. She then started waving her arms and saying:
[L]: ‘I don’t know…I don’t know.’
Me: ‘[M] has been saying things about Daddy, are the things that [M] has been saying about Daddy true?’
She looked at me with tears in her eyes and said: ‘Yes.’
I then returned with [L] to the foyer area and I had a further conversation with [M] to the following effect:
I said: ‘[M], do you want to talk to Bishop [O] about what has been happening.’
[M] replied: ‘Yes.’
I then took [M] upstairs to Bishop [O’s] office and I said to Bishop [O], ‘[M] has something to tell you that I think you should know.’
I then went downstairs, to tell [the mother] and [Mrs C] that [M] was speaking to the Bishop. I then returned upstairs and waited outside the Bishop’s office for [M]. The Bishop then came out of his office and said to me words to the effect of:
Bishop: ‘That is absolutely terrible. I need to contact my superiors to find out what protocol is in these sort of circumstances.’
I said ‘thank you’ and then returned with [M] downstairs to join [the mother] and [Mrs C].”

Bishop O gave this account of his conversation with M:
“5. On Sunday 29 November 2009, I was approached by [the maternal grandmother] whilst I was in my office at the […] Church premises. She was with [M].
[The maternal grandmother] said to me words to the following effect: ‘Could you speak with [M], she has something to tell you.’
I agreed. After [the maternal grandmother] left the room, I said to [M]: ‘What happened?’
[M] said: ‘My Dad rubs me in my private part.’
I said: ‘How often does he do this?’
[M] said: ‘Day and night.’
I said: ‘How long has this been going on for?’
[M] said: ‘Since I was five.’
I said: ‘Has this been happening to your sister?’
[M] said: ‘Yes.’
I also recall her saying words to the effect of: ‘Sometimes he picks me up by my private part.’
6. I had spoken with [M] approximately two weeks prior, and I asked her: ‘Why didn’t you tell me this when we met before?’
[M] said: ‘Dad said if I tell anyone, he’d punch me in the face.’
[M] said to me words to the following effect: ‘Dad gets [L] and I to massage him on his back and stomach.’
The mother spoke to L about the allegations of sexual abuse on the afternoon of Sunday 29 November 2009. She deposed:
“70. That afternoon, at approximately 5:30pm I was on the couch with [L] and [M] watching a video. My sister [P], who is aged 14, was also sitting with us.
[L] said to me: ‘You would never believe me.’
I said: ‘I will believe anything you say.’
[L] then said to me: ‘I didn’t know if his touch was that way. I wake up in the middle of the night. He says he’s massaging me.’
While [L] was saying this, she was indicating with her fingers the way in which she says her father was massaging or scratching her. She was pointing to her vagina.
She then went on to say: ‘He puts his hand on my mouth and it smells like peepee.’
I said to her: ‘If it ever happens again, just tell your teachers. Tell the truth. If he does it again just push him away, tell him ‘no, don’t do it to me.’
[M] was listening to this conversation and then said: ‘Mummy, I feel so sick, I can’t go there.’
I then comforted both girls and changed the conversation as it was upsetting me.”
Mrs C notified the Department of Human Services on 29 November 2009 and Bishop O did likewise on 1 December 2009. The children were interviewed by JIRT officers on 30 November 2009.
M’s interview read in part:
“Where do you live – (points) – with Dad at [address]. I want to live with mum.
Ok we’ll talk about that later – how long – couple of weeks
We always live together
He makes us sleep in his bed.
We’ve got our own bed, but he makes us sleep in his bed.
Bunk bed.
Makes us sleep with him.
He touches our privates.
He touches inside our privates.
Since I was 5 and [L] was 4.
And um.
He goes like this to make our legs stiff.
He makes us faint.
Think of the last time – Last week on Thursday (calendar) 27/11/09.
Last Thursday 27 Nov Daddy touches us in his house – where? – in the spare room or upstairs.
Can you tell me: He said he will punch my face if we tell anyone. The thing (ear piece) fell out. Try and put it out of your mind.
It’s been happening since I was 5.
On Thurs he made us stay home from school. Said come upstairs. Did. Gets our arms and does this. He like rubs the top bit where you wee from. Twists it. Rubs it back and forward and this is the truth.
How long are we going to speak for.
Did the court ask you to talk to us?
Because they said we are going to get our own lawyer.
Dad told us. And he read all the court documents to us out loud.
Last month – wait this month.
Do you remember what it said? – uh uh.
Can we go back – don’t want to lose what we were talking about. You said. Dad made you stay home. Said us – who’s us. – [L] and me.
When tell us? In the morning.
Does it when no-one at home.
Where were all uncles – work.
Noone and – work.
Does you dad normally go to work? – he doesn’t work since we’ve been there.
Since morning? – woke us up. After breakfast – told us. Said not going to school not telling you why. About ½ hour came upstairs.
(wiping nose).
Dad said come upstairs. Said I want to do something with you. Then he pulled down our pants. Said to both of us.
What did you do – said coming.
Where? – in our room.
Can you draw this? [draws rooms/upstairs]
How many bedrooms? 4 upstairs.
Bathroom and toilet (shared)
Tell me what happened – he said – stand up in front of me. Said pull down our underwear. Dad sitting on bed. Me longer than [L].
Together in room.
What were you wearing? Betty Boo top; [L] wearing Betty Boo jeans. [L] v.light blue.
You said Dad was sitting? – “come stand next to me”. Then he pulled down my underwear. He stiffed my legs up. Made you not move. Makes me faint. He brings me on the bed. He gets here and then he does. He goes like that. [shows] with wee. [body chart].
How long? - ½ hour or 5 minutes.
How do you know? – [L] told me.
Word? – no.
Does mummy or daddy call it something else? – no.
After what happened then? – I was scared. My tummy started to hurt. It’s been hurting for a while.
What was happening with [L]? – She went downstairs – she nearly ran away.
Did he say anything? – Yes.
Before after something? – After. ‘don’t tell anyone even your mum or I will punch your face.’ Pulled up my pants and underwear.
What hand did he use? – x picture. Right hand.
How did you know? – that’s what hand he used. His private was near us. Red cross – top of leg near private. It was hard.
How do you know? – I felt it.
What was dad wearing? – A hat, short jeans and a t-shirt. But when he goes to bed he just wears board shorts.
What do you usually wear to bed? – pyjamas.
I don’t remember. [L] ran downstairs and hid. She was in the cupboard in the spare room.
2:28 stop tapes/keep rolling toilet
2:30 waved hello – said hi in break – happy to keep talking.
Q’s. [J]. [J] not sure. I faint when I have a long of weight on my legs. Faint when [L] had sat on my lap. Fainted yesterday at Nona’s when walking.
I was sitting on the ground.
We bended down from the bed.
How were you? (shows)
What happens? – for ½ hour I don’t wake up. Sitting cross legged on floor. He pushed into legs. Faint. Put on bed.
Did you see [L] before you fainted? – yes. Standing.
Were you two talking – was anything said? – Light or dark or something else.
Light was on.
Time of day? – about ½ hour before bell rang for school.
Like 2:50pm. Like ½ hour before 2 and 2:50 in afternoon.
How was he positioned? – laying on me. (shows) ½ of his body.
Told my mum and my nana ([Mrs Bentoin]) and [Mrs C]. [Mrs C] my friend’s mum – [E].
When you told mum what did you tell her? – told her dad touches our privates.
Did you say anything else? – no. Friday night. Mum was cross.
[Maternal grandmother] – when did you tell her? Sunday.
[Mrs C]? – outside church on Sunday. [Church]. Told her dad touches our privates and fiddles with it.
You told me it happens? – every second week. Monday and Thursday.
Where? – next week he will do it to us. Mum thinks I should live with her and I really think I should live with her. (red – leg scratch)
How long since you’ve been living with dad? – a couple of weeks.
6:20 [address]
Who lives there? – no one she’s renting.
She got stabbed.
Who by? – don’t know. She got told – to be billed – stabbed – there and there [chest and head]
When spoken to police before? – when dad tried to take us. Sept.10^th.
This year/last year/something else? – this year. Dad thought our car broke down. Dad came barging – kicked [uncle’s] computer and it broke. Mum was there. At down the road from his house. They house that they sell. Tell em what happened. ‘cos dad grabbed me and pulled me. Bruises. Dad and Mum pulling me. That’s what started the court.
At beginning of court.
You told me about last Thursday? – every Mon and Thurs.
Can you tell me? – it started when I was like 5. 1 day before I turned 5.
Where were you? – at his house. When I was like 3 my parents broke up.
Tell me about this time? – Really important stuff – Need you to stay focussed. Where? – Daddy’s house – [address]. Spare room.
What’s inside? – computer – listening to music (outside)
[refocus]
Draw [L], Dad, me. Computer, chair, toilet? – he pulled down my pants and did some thing. Pulled down my pants and underwear and he touched. I mean nappy. He touched my private. On that chair. [L] there. Door closed.
Anyone else home? – no.
Dad wearing? – no.
You wearing? – dress – Hi-5 pink, yellow and green. Dad and [L] on the chair. Sitting on the ground. Cross legged. He made me faint again. He did the same thing. He did that thing back forward.
Shows red on body chart. V now X.? – touched with finger. One no these 2 fingers (pointer and middle finger). ½ hour. Had watch on – could read the time. Dora watch. [L] was sitting there closing his eyes.
Did dad say anything? – I don’t remember.
What made him stop? – Nonna.
Who else was home? – no-one.
Nonna – big present for my birthday.
What? – a key board and heaps of presents. But Nonna bought me more.
Can I take you back? Dad wearing? – t-shirt and pants.
Fainted? – [L] poured water on me. Left me there on the floor. He didn’t pick me up. After [L] poured water on me. He pulled my pants down – before he did it. Dad said. Water – woke up freaked out – dad said are you ok? Nonna said are you ok? I said I’m fine and I asked what happened. Dad pulled them up. [L] poured the water. He ran outside.
Where? – to smoke, he still smokes.
Did you tell Nonna anything? – [L] said are you ok?
First time you told mum? – a week ago.
If you told someone? – I’d get in the deepest trouble.
Everything you’ve told me today is the truth?
Why coming? – just to talk to you guys. Don’t lie don’t tell anything but the truth.
What do you think will happen if daddy thinks you’ve told? How do you feel? – got more tummy ache. I’ll vomit. I don’t want to see him ever again.
If at school – who can you talk to? – [L’s] always there. No-one. (not mum or dad). Only talk to my mum when I see her.
If nothing can be done? – tummy aches and I get hurt all the time. He’ll punch me in the face and he threatens us. He says he’s gonna whack us with the wooden spoon until our butt bleeds and is red.
Have you seen anything happen to [L]? – no. You know that dad touches our privates. You know how he wakes up in the middle of the night. He touches her.
Seen? – yes, only once. Yes that Thursday. Just touched her for 2 minutes.
Same place as you indicated there?.
Thursday? - ½ an hour later he found her and he did it. I only stayed for a minute and ran out sprinting.
[L] ever told you? – a lot of times.
Before we finish anything you want to ask me? – can you stop me seeing him?
I can’t. Have you told any lies today? – I have not told any lies in this statement.”
L’s interview read in part:
“[Q]: who is in your family
[L]: dad, mum, me and my sister
[Q]: what do you like about dad
[L]: he buys me stuff
[Q]: like what
[L]: electric scooter
[Q]: is there anything you don’t like
[L]: when I’m sleeping he touches my private parts
[Q]: Ok. If I should you a picture can you show me where he touches you (X marked on diagram)
[Q]: what is that part of your body called
[L] shrug shoulders
[Q]: where are you when this happens
[L]: sleeping in his bed
[Q]: how often do you sleep in his bed
[L]: every night because he tells me”
“[Q]: what do you wear
[L]: bra, pyjamas and pants. Can I tell you why I sleep in his bed. Mine is hard as a rock. Dad says I can’t sleep in my sisters bed as we talk too much.
[Q]: What time did dad tell you this
[L]: 9 o clock. But I can’t see the TV from my bunk bed.
[Q]: what does daddy wear
[L]: silky boxer shorts, that’s all
[Q]: how often do you sleep with daddy
[L]: every day
[Q]: what about [M]
[L]: she sleeps in her own bed
[Q]: how do you feel about sleeping with daddy
[L]: uncomfortable. I smack him and say go away
[Q]: does he say anything
[L]: no
[Q]: has he touched you anywhere else
[L]: no
[Q]: have you told anyone else
[L]: my friend [Mrs C] and she rang you
[Q]: what about mummy
[L]: no she doesn’t touch us.”
“[Q]: what happens when you are sleeping
[L]: dad touches my privates with fingers. In the morning he doesn’t wash his hands and I can smell it.
[Q]: what does it smell like
[L]: wee
[Q]: what happens then
[L]: I wack him and I crawl back to my bed. It (the bed) is uncomfortable. How many pages have you written. Did I give good answers.”
The JIRT team concluded:
“This officer was concerned at the end of the interview with what support could be provided for [M]. While [M] could articulate details of sexual allegations with regards to her father, suggesting that this had begun when was 5yo up until as recently as the Thursday prior to interview. The allegations were mixed with detail of [M] fainting on each account. The context and inconsistencies of the details made it extremely improbable to believe the allegations. [M] advised she first told her mother on Friday 27/11 and then told Nana ([the maternal grandmother]) and [Mrs C] on Sunday 29/11 but this was when she was expected to have supervised contact with her mother.
On 13 December 2009 the maternal grandfather had a conversation with M, which he recounted as follows:
“I said: ‘We’re going to try to protect you so that nothing like what has happened could ever happen again but before we do, we need to know if those things occurred.’
I also said: “Nobody is going to mad at you if you say yes or you say no. But all we need is the truth. So if you say yes it happened or no it didn’t, nobody is going to go mad at you either way. Did the things you say happen?
[M] said: ‘Yes’.”
The father and some of his witnesses deposed to conversations with the children in which they indicated that they have been encouraged and pressured by members of the maternal family to make allegations of sexual abuse and other mistreatment by him. For example the father told Dr R that M said to him that she was forced to lie by her mother and maternal grandmother. In oral evidence he claimed that M told him: “I am sick of lying all the time, they always make me lie”. He did not explain why he made no mention of this alleged comment in any of his affidavits.
The paternal grandmother was granted leave to give oral evidence of conversations which she claimed to have had with M in November and December 2009, after objection was properly taken to parts of her affidavits. She said that on 7 November 2009 M told her: “Mummy said to me to say that we don’t love anyone else in the family. We don’t want to come to your house. I feel bad when I have to lie for my mummy”.
The paternal grandmother gave evidence that she overheard part of a conversation between M and her neighbour, Ms B on 18 December 2009, as follows:
“[Ms B]:         What is the matter?
[M]:     My mummy and nanna made me lie.
[Ms B]:         Why?
[M]:     My mother wants my daddy to go to gaol.”
There were no such claims in relation to L. The paternal grandmother said that L has never told her that her allegations are incorrect or that she has been asked to lie.
Ms B swore two affidavits, to parts of which objection was properly taken. Her affidavit of 22 December 2009 was almost entirely inadmissible and the grand of leave which I extended was not taken up in her oral evidence. Her second affidavit sworn on 30 June 2010 was a strange mixture of direct and indirect speech and read in part:
“3.On the 18.12.09 [the father’s] mum [the paternal grandmother] knocked on my door and said to me ‘Could I visit their home to see [M], as she seemed a little upset’.
4.I went inside their home and visited [M], who seemed very upset and was crying.
5.I said to [M] ‘Do you want to go into the lounge room with me to have a talk about why you are crying’. [M] said ‘yes’.
6.We then went into the lounge room and [M] said to me ‘Her Mother, Grandfather and Grandmother made her say things that weren’t true and that it upset her.
7.[M] said to me ‘She gets upset about this’
8.I said to [M] ‘It is important to tell the truth, no matter what others have told her what to say’.
9.[M] said to me ‘Mother, Grandfather and Grandmother had told her to say that her Father, [Mr Aviva], touched her and her sister – it upsets me her having to say these lies’.
10.[M] said to me ‘She did not want her Father to get into any trouble because of these lies.”
I will accept that M made statements to Ms B, to the effect that she has been told or encouraged to lie about sexual abuse by her father. I will accept that she said that her mother and maternal grandparents told her to tell these lies.
In her affidavit sworn on 30 June 2010 Ms G deposed: “I also heard [M] say ‘Nanna GDad and mummy make me lie so Daddy goes to gaol’”. Mrs G was referring to the conversation between M and Ms B on 18 December 2009.
Dr R had real doubts as to the veracity of the allegations of sexual abuse. She reported:
“It appears the children have been exposed to extremely inappropriate words and actions by both parents ie there are multiple boundary violations but it is questionable whether they have been sexually abused by their father. I am not critical of the DOCS/JIRT assessments and risk of harm evaluation. I am concerned about how their extended families have influenced them – [L] has indicated her lack of trust in [school] teachers, telling DOCS they are on Dad’s side (a similar view expressed by her maternal grandparents), while [the father] has alleged that the mgm encouraged the girls to lie.”
Dr R advanced a theory as to how the allegations of sexual abuse arose, in her oral evidence, which I found persuasive. To understand Dr R’s hypothesis, it is necessary to appreciate the children’s situation at this time.
On 5 November 2009 the father and paternal grandmother removed the children from their Primary School without the mother’s knowledge or consent. The father may well have believed that he was justified in taking this action, because of the circumstances in the mother’s home at that time. In any event, the effect on the children was that they were suddenly separated from their mother without any warning and had no idea when they would return to her.
On 28 October 2009 the children saw their counsellor, Ms U. Her notes for that day (exhibit 5) provide an insight into their attitude to the father shortly before he removed them from the mother’s care. Ms U noted:
·“nervous, fearful of father; phone contact only for last two months
·thumbsucking observed; holding on to her baby security blanket
·afraid of father – ‘says mum is selfish’ – ‘says mum is a slut and she sells herself for sex’
·afraid of him; ‘I always get into trouble’- ‘I don’t let the tears come out’ – ‘I cry in my head’
·‘he won’t let us have friends’ – calls them ‘bitches’
·last time he called he said he would come and get me, so I said no, no, no he said tomorrow yes, yes, yes”
Dr R drew attention to Mrs C’s evidence of her conversation with M on 28 November 2009, during which she said “I don’t understand why my daddy still has us” and “I want to live with mummy”. She also referred to the mother’s evidence of statements which she claimed the children made to her in September 2009. The mother said that M told her that the father made these disparaging comments to her:
“She is a stupid mum, your mum doesn’t look after you, I do, I buy you nearly the whole world.
You are just like your frigging mum, it is a pigsty at your house, my house is better than yours.
I buy you things but you don’t deserve things”
The mother also said that M told her “Dad has called me a bitch”.
The mother maintained that, in September 2009, L told her that the father made these comments:
“Dad always screams at you, he says you are a fucking moll, your mum’s an idiot, don’t listen to her, listen to me.
Don’t worry I am going to tell the cops and DOCS on your mum and I am going to take you away and you will live with me forever.
Your mum only loves her boyfriend she doesn’t put you first.
Your mum’s family is crap, they are just brainwashing you.”

These comments by M to the mother, Ms U and Mrs C suggested to Dr R that “[M] was very unhappy at the prospect of living primarily with her father and that she was very eager to please mum”. Ms U notified the Department of Human Services on 6 November 2009, expressing concern for the children’s physical and emotional wellbeing in the care of the father. She opined “they would be very anxious to not have been returned to her”. Dr R said “I have no doubt that [M] was distressed at being taken from her mother and put with her father”.
Dr R attached significance to the fact that the children were questioned on a number of occasions after the initial disclosure to the mother. She considered that this repetition “further cemented the allegations and made it very difficult for the children to retract their statements”. She opined that “there was a real loyalty thing there” at the end of 2009 and that “it would be very hard for [M] to say she was lying”. There was significant questioning of the children on 28 and 29 November 2009, before the JIRT interviews on 30 November 2009.
Dr R drew attention to the absence of challenge to the truth of the children’s allegations. She referred to M’s conversation with Mrs C. The evidence of Bishop O likewise indicated that he did not challenge M as to the truth of her disclosures. Dr R opined: “if it is not being critically evaluated it gets a life of its own”.
It is noteworthy that M immediately indicated to Mrs C on 28 November 2009 that she was unhappy living with her father, when she asked “how’s everything going?”. M went on to say that she wanted to live with her mother. She complained about her father’s treatment of her and his denigration of her mother. In this first conversation, M complained that the father forced her and L to sleep in his bed but said nothing about him touching them.
The first time M complained of her father touching her sexually was during the conversation with her mother on the night of 28 November 2009. Mrs C had already reinforced that she should object to sleeping in her father’s bed.
The mother gave imprecise evidence as to what allegations M made that night. She was never able to specify the words spoken by M.
In cross-examination the mother said that M was in bed, covered with a quilt, when they began their conversation. She said that M took the quilt off when she asked her to indicate where her father touched her. None of this information appeared in her affidavit.
When M woke L and told her that she had said the father was touching her private parts, L said “I don’t know I don’t know if Dad is touching me that way”. It seems to me that this statement would be a surprising response from a child who had been touched inappropriately.
Interestingly, both the mother and Mrs C described M’s demeanour as “matter of fact” when she made disclosures of sexual abuse. A JIRT officer made a similar observation of her demeanour on the day of the interview. In an “assessment record” dated 14 January 2010 JIRT officer Ms J noted: “I asked [M] how she felt about seeing her Dad today. She did not seem concerned – unlike any response of children who have been sexually assaulted, and nor was it like that of a child who was groomed into being a victim of sexual assault”. It is noteworthy that L asked “did I give good answers?” at the end of her JIRT interview.
At the end of the conversation on 28 November 2009 the mother told M that she needed to tell her maternal grandmother and another person about her father touching them. She suggested that M tell Mrs C. No doubt the mother was aware that Mrs C would be at the church on the following day.
On 29 November 2009 M told Mrs C, the maternal grandmother and Bishop O of the father’s alleged inappropriate touching of the children. She repeated these allegations in the JIRT interview on the following day.
Dr R considered it possible that M could have encountered the concept of “good and bad touching” in protective behaviours training at school. The Semester 2 2009 school report annexed to the father’s affidavit sworn on 22 December 2009 indicated that she had been taught about “behaviours that are risky” and identification of “people who will support and assist her”. Dr R believed that there must have been a source for the allegations. She said: “I think it is very possible that they were not coached but there were suggestions, for example [Mrs C]”.
Dr R considered the possibility that the children may have been sexually abused but had “disassociated”, such that they still appeared to be happy with their father when she saw them together. Taking into account that possibility, she adhered to her real doubt that the children were sexually abused by their father.
On behalf of the father, it was submitted that it was significant that the mother failed to raise the sexual abuse allegations during the apprehended violence hearing on 18 December 2009. It was suggested that the necessary inference was that she knew that the allegations were false.
This submission sits very uncomfortably with the transcript of these proceedings (exhibit 2), which was tendered in the father’s case. It should be noted that he was represented by the same solicitor in those proceedings and in the trial before me.
The mother said that she sought an apprehended violence order only for the protection of herself and not the children. She said: “no, not for the children cause the Family Court is looking after all of that”. In fact, the FMC was due to deliver judgment in interim parenting proceedings on the afternoon of 18 December 2009. The transcript shows that the learned magistrate repeatedly disallowed questions to the mother by the father’s solicitor about the children, on the basis of relevance.
In these circumstances, it seems opportunistic and unfair now to criticise the mother for failing to raise the allegations of sexual abuse in the AVO proceedings. It must have been clear to the father’s solicitor in these proceedings, who appeared in the AVO hearing, that the presiding magistrate had taken a certain view about evidence in relation to the children.
As noted, both the JIRT team and Dr R had serious reservations about the veracity of the allegations of sexual abuse. I find compelling Dr R’s hypothesis as to the genesis and development of these allegations. For the reasons which I have indicated, I find to the requisite standard that the father did not sexually abuse either M or L.

The Allegations of Physical and Emotional Abuse

As noted, the children have told a number of people that the father has called them “bitches” and made extremely derogatory comments to them about their mother. He denied that he called the children “bitches” but I am satisfied that he did so. Further, I am satisfied that he has regularly denigrated the mother to the children. It was abundantly clear that he is an immature person, as observed by Dr R, and that he has an extremely negative view of the mother. It would be very surprising if the children were taught to make some of these statements, as alleged by the father, before the proceedings were even contemplated.
I refer to the evidence that the father has made these entirely inappropriate remarks to the children below, when I consider the capacity of the parents and maternal grandparents to provide for the children’s needs. I have no difficulty in concluding that these acts on the part of the father amount to emotional abuse of the children.
The children, particularly M, complained that the father subjected them to physically abusive acts such as bending their fingers backwards. These complaints emerged at a time when they were very unhappy living with their father. I cannot be satisfied that the father physically abused the children, as these complaints may have been influenced by their unhappiness and wish to return to their mother.

Section 60CC(3)

section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

M told her counsellor Ms U, on 28 October 2009, that she was afraid of her father and did not want to go with him again. On the same date L told Ms U that it was “scary” to stay with her father and that she did not like going to see him. She said that she “did not like being taken away from Mum”.
Both children told Ms U that they were happy at their previous Public School. M told her that she “hated” the new Public School.
In the JIRT interview on 30 November 2009 M said that she wanted to live with her mother. L shook her head when a JIRT officer asked her if she liked living with her father.
The children’s general practitioner, Dr A, noted in October 2009 that M was fearful of her father and “adamant that she does not want to go with her father”. Dr A noticed that she was “thumbsucking, nervous and had her baby security blanket”.
Dr R interviewed the children on 3 February 2010. They had then lived with their maternal grandparents since 18 December 2009, a period of approximately six weeks. They had previously lived with their father between 5 November 2009 and 18 December 2009, also a period of approximately six weeks.
M told Dr R that she would like to live with her mother or her maternal grandmother. Dr R reported that M told her “…both girls were crying at Dad’s house and missing Mum”, when they lived with him. She also told Dr R that the father and his brothers played roughly with them.
Dr R reported that the outcome of M’s responses to the “three houses” test was:
“In three houses [M] would place
1.with her - Mum, me and [L]
2.next door, to see whenever she wants – Nanna’s house
3.faraway, never to see again – Dad’s house.
When challenged whether she would like this forever [M] said she would think of seeing him not that often, suggesting once a month and only with Nanna.”
Dr R asked L where was “the best place for them to live” and reported:
“She opined ‘Nanna’s – they don’t swear or fight or touch out privates’…She added ‘Daddy’s family screams, kicks, swears and touches our private.”
L told Dr R that she did not want to be interviewed with her father and said that she “did not feel comfortable in the [Aviva] family”. She said that, if she had a choice between living with her mother and maternal grandparents she would choose “my mum” because she “could still go over to Nanna’s house”.
Dr R reported that L’s responses to the “three houses” test were:
“1. with her – mum, [M]
2.next door, to see whenever she wanted – Nanna’s family
3.faraway, never to see again – Dad’s family. If the judge says she has to visit Dad, she will scream, not want to play with him nor would she go there for dinner as they’d all kick and scream.”
It is abundantly clear that the children do not want to live with the father. In Dr R’s opinion, however, “neither child is old enough to evaluate what is in their best interests”. As noted, though, she hypothesised that the sexual abuse allegations arose because M strongly wished to leave her father and return to her mother.
In her oral evidence Dr R stressed that the children need to “lose the negative mindset they have about the [Avivas]”. She said “it would be a tragedy if they grow up with the mindset they had when I saw them – making negative comments about the [Avivas] so as not to lose their mother”.
When asked about the children’s wishes, the father said “I am not sure what they want”. He then conceded that they told Dr R that they do not want to live with him. He said that he “could not answer” whether a change of school from would benefit them, although he must have known that M told Ms U that she “hated” her school.
The father also said in oral evidence “I can’t answer what the consequences would be for the children if they live with me”. He added “they would be upset” but then stated “I can’t answer how I could tell when they are upset”. He agreed that the children could not talk to him if they were missing their mother.
I am satisfied that neither child wishes to live with the father. They seem to have accepted life in the home of the maternal grandparents and retain a strong wish to be with their mother.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Despite the children’s reluctance to be interviewed with their father by Dr R, they eventually did so. He engaged them with appropriate questions and they then began to interact with him. When the paternal grandparents entered the room, the children cuddled them.
Dr R reported that the children “seemed comfortable with the maternal grandparents and behaved in an age-appropriate manner”. After their interview with the mother, Dr R observed the children to be happy to return to their maternal grandmother.
Dr R reported, in relation to M:
“[M] appears to have had long-term difficulties achieving feelings of security within herself (confidence) and with others, reflecting her shy temperament, being a first child and being parented by a young couple in a conflicted relationship. She has not had the consistence, predictability and calm parenting she required. Her insecurity has been evident over the years with her ongoing use of thumb and ‘ruggie’ (transitional object), her inability to play with a group of peers and some oppositionality with her mother. One can only speculate what she wanted to get away from when she wanted to buy caravans to live in. I suspect her mother did not protect [M] from her and her brother’s alcoholic lifestyle, while the September 2009 incident, where there was a physical tug-of-war over her by her parents, indicates a failure by both parents”.
In relation to L, Dr R reported:
“At this assessment, [L] was clearly focussed on the Court issue of where she will be living, rejecting Dad and wanting her Mum to win. This could explain her distance from him at interview, when she avoided him but also warmed up to engage with him when her PGPs were present. She has significant fears of losing Mum, resulting in her splitting, feeling she has an either/or choice between her parents. This is understandable given the family conflict and very concerning, as [L’s] sense of security and trust in her two families are being undermined, with long term effects on many aspects of her development.”
It thus seems that the children’s relationships with their father and paternal grandparents could be resurrected, if they have a secure home base with the maternal grandparents. Dr R was in no doubt that they would benefit from a positive relationship with their father and paternal family, if time with him would not expose them to an unacceptable risk.

section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

The father’s willingness and ability to encourage and facilitate the children’s relationship with their mother is open to serious question. I have referred already to his oral evidence as to whether they should spend time with her at all. Disturbingly he said “they probably would be upset if there was an order that there be no contact. I can’t say how long they would be upset. Yes, they would have to live with that”. The importance of the maternal relationship did not seem to figure heavily in his proposals for the children’s future care.
Dr R identified “maturity problems” in both parents. She observed that the risk of the father commenting inappropriately about the mother would be reduced if he has little or no contact with her. She was impressed that he sought professional assistance from Ms T and opined that he needs to continue to “work on his reactivity and develop a detachment from [the mother]”.
The mother alleged that the father was responsible for putting photos of her with the word “slut”, written in large letters, in her parents’ mailbox, on walls near the principal’s office at the children’s school and at a dance school attended by the children. The father denied that he distributed these photographs himself or caused any other person to do so. He alleged that the mother did these things in order to “make him look bad”.
I am in no position to make any finding as to who was responsible for these unseemly actions. The father certainly appeared to be extremely angry about and focussed on the mother’s past time as a sex worker. His rancour was clearly demonstrated by the phone call to the maternal grandparents, to inform them of her involvement in the sex industry.
The mother’s willingness and ability to facilitate and encourage the children’s relationship with their father is not an issue, as she will have only supervised time with them. The question is the willingness and ability of the maternal grandparents to facilitate and encourage the children’s relationship with their father and paternal family.
I have no reason to believe that the paternal grandparents will disregard any order for the children to spend time with their father. The maternal grandmother was very clear that their relationship with him needs to be rebuilt and she expressed concern that they have lost their large, extended paternal family. She said that she would be happy to discuss issues in relation to the children with the paternal grandmother.
The maternal grandmother was of the view that she and the paternal grandmother should be present together at changeovers for an initial period. The paternal grandmother said that she would be prepared to assist in moving the children between the households. The maternal grandfather agreed with this suggestion and offered no opposition to the children’s spending time with their father in accordance with orders.
The maternal grandparents impressed me as pragmatic people who will accept the court’s decision and help the children move on with their lives. I am of the view that the maternal grandmother was sincere in her evidence that the children need to have a good relationship with their father and extended paternal family.
As noted, I have real concerns about the father’s willingness and ability to foster the children’s relationship with their mother. On the other hand, he has sought professional assistance and Dr R was guardedly optimistic that, with this input, he may be able to ameliorate his very negative view of her.

section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

A change to primary residence with their father would require a major adjustment on the part of the children. Apart from the six week period between 15 November 2009 and 18 December 2009, they have not lived with him. As noted, they indicated that they reported that they were very unhappy living with their father in the home of the paternal grandparents and uncles.
The father displayed a very disturbing lack of insight into the likely effect of the children of this proposed change. I have referred above to some of his evidence about the impact on the children, if they were to have no time at all with their mother. In fairness to him, however, the father’s ultimate position seemed to be that they should spend supervised time with her. The concern remains, however, that he was prepared to put this proposal as a serious plan for the children’s future at any stage.
I have also referred to the father’s disturbing evidence that he “can’t answer what the consequences would be for the children if they changed residence”. As noted, he conceded that they would be “quite upset” but then said that he “can’t answer” how he would recognise their distress. He agreed that he children would not be able to talk to him about missing their mother.

The father agreed that “it is important that my family and friends know the allegations are made up” if the children live with him. He denied that he would “persuade them to say they lied” but I have reservations about his intentions in this regard. He agreed that he believes that “they and [the mother] maliciously made up the allegations” and said “I am here to clear my name”.
The paternal grandmother was definite that the children need to understand that they “should not tell lies” and obviously believes that they were actively encouraged to tell untruths about their father. She said “nobody in my household has a positive view of the mother”.
The paternal aunt, Mrs G, said that she would ask the children to say that they “had made it up”. She said that she would do so because “it would be very important for them to tell everyone in the family”.
Life with the father, therefore, would place the children in a household with a universal view that the mother and her parents fabricated the allegations of sexual abuse and coached the children to tell lies about him. I am satisfied that the father and his family would put pressure on them to recant their allegations. They may not do so in a calculated, deliberate way but they are heavily invested in refuting these allegations. I am concerned that the father and his family may not be capable of or willing to prioritise the children’s emotional well-being over their need “to clear his name”.
The father gave evidence of a vague plan to move into his own accommodation with his girlfriend, Ms S. He offered no proposal other than a vague suggestion that they would “probably live around [the same area]”. It was the view of the paternal grandmother that he is currently unable to afford his own accommodation. The father offered no time frame for this supposed move, which may never come to fruition.
The father intends to continue his work in a shop business operated by his family. He said, and I accept, that flexible hours are available to him.
A change in primary residence would thus place the children in a situation to which they are resistant and where they have previously been unhappy. They will live with a parent who has had their full time care for only six weeks out of their entire lives and is, essentially, an untested primary carer. In the home of the paternal grandparents they will be in an environment of sustained negativity toward their mother. They are highly likely to be put under pressure to retract their allegations. If the father moves in with Ms S they will have to adapt to living with a stepmother with whom they have spent relatively little time.
A change to primary residence with the father would thus seem to entail several disadvantages for the children. On the other hand, they need their father and paternal family to be involved in their lives in a significant way, provided that he poses no unacceptable risk to them.
The children appear to be settled and happy in the care of their maternal grandparents. I have difficulty in identifying any advantage to them in changing their place of residence. The maternal grandparents have provided the children with the security and stability which was previously lacking in their lives.

section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

No practical difficulties arise with the children spending time with each parent. There are no issues of expense, other than the cost of professional supervision, if there is a finding that the father poses an unacceptable risk to the children.
section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I have referred already to most of the reasons for concern as to the father’s capacity to provide for the children’s needs. There are obvious concerns as to the mother’s capacity to meet their needs, which are of lesser relevance as she abandoned her application that the children live with her and accepted that their time with her should be supervised.
As noted, the father demonstrated a very concerning lack of insight into the likely effect on the children of the changes which he proposed. At one point in his evidence he said, when being questioned about his proposals, “yes I am deciding this as I speak”. It is of great concern that he would seek to bring about such a drastic change in the children’s lives, with so little consideration of the consequences for them.
It is also concerning that the father took M’s Christmas present to the interview with Dr R but brought no gift for L. When asked his reason, he said only “I can’t answer”. Apparently he gave no consideration to the potential effect on L of his decision to give a present to only one of his daughters.
The father displayed a similar lack of insight when he took the children out of school on 5 November 2009. He said “I can’t answer” when asked for his opinion about the likely effect on them. He said “I can’t answer” when asked whether he thought that they may have feared that they may never see their mother again.
Generally, the father appeared to be a person who does not think through the consequences of his decisions and actions. This tendency is probably a manifestation of the immaturity which Dr R identified and is a very worrying attribute in a parent who offers himself as primary carer of two little girls.
There is some reason to believe that the father has directed abusive language at the children. On 28 October 2009 they complained to Ms U that he calls them “bitches”. On 1 May 2008 a member of staff of the children’s School interviewed the children at the request of the mother. This person recorded “both girls identified that the father calls them bitches even when he is not angry” (exhibit 11).
The father denied that he has called the children “bitches” and claimed that the mother taught them to say that he did so. It seems strange to me that she would influence them to make this complaint to a school staff member before these proceedings were even contemplated.
As noted, I am inclined to the view that he did call the children “bitches”. I am satisfied that he made the derogatory remarks, to which I have referred, to the children about their mother. These matters clearly demonstrate a lack of insight into and a lack of capacity to meet the children’s emotional needs.
Another matter which demonstrates the father’s lack of insight into the children’s needs was his insistence that they change their clothes, at a McDonalds restaurant, on the day when they moved from his care to live with the maternal grandparents. There could have been no benefit to the children in this demand on the part of the father.
Overall the father impressed as an immature person, who is an inexperienced parent and lacks insight into the children’s needs. It was clear that he has a heavy investment in “clearing his name”. Of course it is entirely understandable and reasonable for him to be upset and angry, if the allegations levelled against him are untrue.
There are also serious concerns as to the mother’s capacity to provide for the children’s needs. I do not regard her participation in the sex industry per se as a basis for concern as to her parental capacity. There was no evidence that she exposed the children to this activity or that she failed to make proper arrangements for their care at these times.
It is not necessary to canvass in any detail the deficiencies in the mother’s capacity to provide for the children’s needs. It is sufficient to observe that she has been involved with illegal drugs and has led an unstable life for some time. In making the latter observation, I acknowledge the difficulties which she undoubtedly encountered as a young, single mother of two little children. To her great credit, the mother abandoned her application and supported that of her parents. In so doing, she showed insight into the children’s needs.
Nothing in the evidence gave me cause for concern as to the capacity of the maternal grandparents to provide for the children’s needs. As noted, they both impressed as pragmatic people who understand and accept that the father and paternal family must play a role in the children’s lives in their future. They are very well equipped to meet the children’s physical needs and they are highly experienced parents.
section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The children are part of a large, extended paternal family of Italian origin. They are entitled to the benefit of the cultural heritage of one half of their family, as was expressly acknowledged by the maternal grandmother.
section 60CC(3)(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 children are not of Aboriginal or Torres Strait Island heritage.
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Although I have serious reservations as to the father’s capacity to provide for the children’s needs, I do not doubt that he loves and is devoted to them. It seemed to me that his parenting skills and attitude to the responsibilities of fatherhood are handicapped by his immaturity.
The maternal grandparents have shown an entirely appropriate attitude to the children and the responsibilities of parenthood. Essentially, they came to the children’s aid when they needed help. I am comfortably satisfied that their sole motivation in these proceedings was to act in what they perceived to be the children’s best interests.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
The mother alleged that the father subjected her to violence during their relationship. Certainly, it appears that they had a conflictual, tumultuous relationship which would not have been assisted by their immaturity.
It seems to me that Dr R may well be correct in this assessment:
“[The mother] presented as an immature, euthymic young woman with poor judgment about what is in her and her children’s best interests. While I do not dismiss all her allegations about domestic violence, I suspect in [the father] she found a similarly reactive and egocentric partner with difficulties with boundaries and functioning in a mature, adult, independent manner.”
The parents have not lived together for over six years. The allegations of violence during their relationship did not figure at all significantly during the trial.
section 60CC(3)(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;
It appears to me that an order that the children live primarily with the paternal grandparents, rather than the father, is the outcome most likely to avoid further litigation. Placement of the children in the primary care of the father seems to me more likely to break down, because they are resistant to this arrangement and his future is uncertain in several significant respects.
section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances which seem to me to be relevant to the outcome of the proceedings.

Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

This subsection has no relevance in relation to the mother, as she seeks no orders in relation to the children. The father has not paid child support regularly and, to that extent, he has failed to fulfil his responsibilities as a parent. I am satisfied that he has attempted to spend time with the children and participate in decisions about major long-term issues in their lives.

Conclusion

I have found, to the requisite standard, that the father did not sexually abuse either M or L. In my view, there is no unacceptable risk that he will do so in the future.
I am left with concerns that the father and his family will put pressure on the children to recant their allegations of sexual abuse. Hopefully, they will see my finding as a “clearing of his name” and try to understand the complex process by which the allegations arose. I commend to them Dr R’s hypothesis as to the genesis of these allegations.
On balance, I find that the prospect of pressure to recant the allegations by the father and his family falls short of an unacceptable risk of emotional abuse to the children. They should accept that it will be psychologically damaging to the children to be pressured to recant their allegations.
There are significant uncertainties in the father’s proposal that he have primary care of the children. His plans for establishing a home with Ms S were vague and they have already experienced one breakdown in their relationship. I cannot be satisfied that the children would have a stable home base in his primary care.
It is clear that neither M nor L wants to live with the father, so I can safely predict that this outcome would make them unhappy. I have indicated that I seriously doubt that the father has the maturity or emotional capacity to recognise their distress and comfort them adequately.
In a general sense, I am satisfied that the father lacks insight into the children’s emotional needs. It is most concerning that he has freely denigrated the mother, in most offensive terms, in the presence of the children. I have pointed to examples of his insensitive behaviour, such as taking a gift for one child only to Dr R’s interviews and insisting on the change of clothing at McDonalds restaurant on 18 December 2009.
In summary, a change of primary residence to the father would return them to a situation where they were unhappy for a short period in late 2009. The father lacks the capacity to deal with their resulting distress and any subsequent changes to their living arrangements. He harbours great resentment toward the mother, although his therapy may assist him to deal appropriately with her in the future.
On the other hand, the maternal grandparents have provided the children with the security and stability which they desperately needed. I can see no good reason now to upset an arrangement which has functioned to their advantage for almost one year. I am satisfied that the maternal grandparents will facilitate the children’s relationship with their father and paternal family. I am persuaded that the maternal grandparents are likely to accept my finding and move on from the allegations of sexual abuse.
For these reasons I find that it would be in the children’s best interests that they continue to live primarily with their maternal grandparents. I have found that the father did not sexually abuse the children and I am satisfied that there is no unacceptable risk that he will do so in the future. I have found that there is no unacceptable risk that the children will be emotionally abused by the father and his family.
It seems to me that the children’s best interests will be served by a reinstatement of unsupervised time with the father and paternal family. I consider, however, that there should be a relatively short period of supervised time as a reintroduction of the children to their father.
The children have been spending supervised time with their paternal grandparents and uncles, pursuant to interim orders which I made at the end of the trial. It seems to me that the best approach would be to allow the father to joint in on these occasions and then to progress to unsupervised time as proposed by the ICL.
The reality is that the maternal grandparents will make decisions about the children’s day-to-day lives and they will be almost solely responsible for their financial support. On a weekly income of $400, the father’s contribution as child support will not be significant. For these reasons I will order that the maternal grandparents have sole parental responsibility for the children, subject to a requirement that they consult with the parents.
I was urged to make orders to compel the parties to implement therapy for the children. I will not do so, as I am satisfied that the maternal grandparents will do whatever is necessary in this regard and they will have the necessary parental responsibility. The maternal grandfather said that he would “definitely” arrange therapy for the children, at his expense, and I accept his word.
The father’s evidence was that he will continue in therapy with Ms T. The ICL sought an order that would allow her to receive a copy of Dr R’s report. No objection was taken to this proposal, which seems to me to have merit, and I will so order.
The ICL sought an order that each party pay one half of the fees of Dr R and the costs of the ICL. I have no evidence of the financial circumstances of the parties, other than that the father’s income is $400 per week.
The father agreed to pay one half of Dr R’s fees and the maternal grandparents did not object to this proposal, thus I will make the order sought by the ICL. I will not make any order in relation to the costs of the ICL, in the absence of any evidence as to the quantum or the financial circumstances of the parties.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 12 November 2010.

Associate:

Date: 12 November 2010

[2010] FamCA 1222

12 November 2010

Key Legal Topics

Areas of Law

Family Law