Barzetti & Ors and Barzetti

[2014] FamCA 233

FAMILY COURT OF AUSTRALIA

BARZETTI AND ORS & BARZETTI [2014] FamCA 233

FAMILY LAW – CHILDREN – Where no orders were sought in relation to the parties’ eldest child – Where the paternal grandparents as applicants sought orders to spend time with the parties’ youngest children – Where the father sought orders to spend time with the youngest children six months after the paternal grandparents commenced spending regular time with them – Where the mother sought no contact orders with respect to the father and paternal grandparents – sole parental responsibility – best interests of children – allegations of child sexual abuse – meaning of unacceptable risk – relevant standard of proof – Where the court determined, to the requisite standard, that the father did not sexually abuse the parties’ eldest child – Where the court is not prepared to make a finding, to the requisite standard, that the father sexually abused one of the youngest children, on the evidence presented to the court – Where the presumption of equal shared parental responsibility has been rebutted by evidence that it would not be in the children’s best interests – Where the court determined that there is no action available which is likely to succeed in building a relationship between the children and the paternal family – Where order for no contact made with respect to the father and the paternal grandparents.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Evidence Act 1995 (Cth) s 140

M v M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368

N and S & the Separate Representative (1996) FLC 92-665

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

FIRST APPLICANT: Mr G Barzetti

SECOND APPLICANT: Mr C Barzetti

THIRD APPLICANT: Ms A Barzetti

RESPONDENT: Ms B Barzetti

INDEPENDENT CHILDREN’S LAWYER: Rafton Family Lawyers

FILE NUMBER: SYC 4833 of 2010

DATE DELIVERED: 11 April 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 10 - 13 March 2014

REPRESENTATION

COUNSEL FOR THE FIRST, SECOND AND THIRD APPLICANTS: Mr Johnston

SOLICITOR FOR THE FIRST, SECOND AND THIRD APPLICANTS: Russo & Partners

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Etheringtons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rafton Family Lawyers

Orders

1. That all existing orders in relation to the children D born on … 1999, F born on … 2005 and R born on … 2005 (‘the children’) are discharged.

2. That the mother have sole parental responsibility for the children.

3. That the children live with the mother.

4. That the children spend no time or communicate with the father.

5. That the children spend no time or communicate with the paternal grandparents.

6. That the mother forward to the father, within seven (7) days of receipt by her, copies of the following:

   6.1school reports

   6.2school photographs

   6.3medical reports in relation to any serious condition

   in respect of each of the children.

7. That the mother inform the father in a timely matter and prior to any surgery proposed in respect of any of the children and of medical recommendations for such a procedure.

8. That all outstanding applications are dismissed.

9. 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.

10.That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barzetti and Ors & Barzetti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4833 of 2010

Mr G Barzetti

First Applicant

And

Mr C Barzetti

Second Applicant

And

Ms A Barzetti

Third Applicant

And

Ms B Barzetti

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. Ms B Barzetti and Mr G Barzetti are the parents of three children:

   D born in 1999 (14);

   F born in 2005 (8); and

   R born in 2005 (8).

2. The parties to these proceedings are the mother, the father and the paternal grandparents Mr C Barzetti and Ms A Barzetti.

3. These proceedings concern parenting orders in respect of the twins F and R (‘the twins’or ‘the boys’).  Sadly, the father conceded that the present state of his relationship with D effectively would render futile any order for that child to spend time with him.  Neither the father not the paternal grandparents sought any orders in respect of D.

4. The mother sought orders that she have sole parental responsibility; that the children live with her and spend no time or communicate with the father.  She also opposed the application of the paternal grandparents for orders that the twins spend time with them.  The mother sought to discharge all existing orders in relation to the child D.

5. By a Further Amended Application dated 27 February 2014 the father sought orders to the effect that he be entitled to attend “all events involving the children, including but not limited to sporting fixtures, extra-curricular activities and school functions”.  The father further sought orders that neither parent subject the children to physical chastisement or denigrate the other in their presence.  He also sought orders that the mother keep him informed of major issues in relation to the children.

6. It seemed that the father proposed that he begin to spend time with the boys approximately six months after they commence regular visits with the paternal grandparents.  I was not provided with a Minute which would put in place such a regime.

7. In the event that the court decides that the twins should spend no time with the father, he sought the following orders:

   1.That the mother forward to the father within 7 days of receipt by her copies of the following:

   a.school reports for all three children (the children);

   b.school photographs of the children;

   c.any medical reports in respect of any serious medical condition of the children.

   2.That the mother inform the father in writing of any surgery the children may be undertaking together with any medical recommendation for such surgery.

   3.That upon delivery of judgment and the making of orders the mother shall contact the ICL within 7 days and arrange for the children to be interviewed by the ICL with a Family Consultant or psychologist for the purpose of providing to the children an understanding of the reasons for judgment and the orders made.

8. The paternal grandparents sought orders that the twins spend time with them each alternate Sunday from 10.30 am until 6.00 pm for six months and thereafter “that Order 1 be reconsidered … in order that the Court consider overnight time and holiday time”.  It appeared that the paternal grandparents proposed that an independent supervisor collect the boys from the mother and that they spend time with them in her absence.

9. In final submissions, the Independent Children’s Lawyer (‘ICL’) proposed orders to the effect that the mother have sole parental responsibility; that the children live with her and that they spend no time with the father or the paternal grandparents.  The ICL consented to the orders proposed in the father’s alternative Minute, with the exception of the suggestion that she explain to the children the reasons for judgment and orders.  Counsel for the ICL indicated “a concern that the children do not have sufficient maturity to absorb that information”.  I share that concern of the ICL and will not make such an order.

Background

1. The paternal grandfather was born in 1929 and is presently aged 84 years.  His health is precarious and he was scheduled to undergo abdominal surgery in March 2014.  The paternal grandfather speaks very limited English and gave his evidence with the assistance of an Italian interpreter.  The paternal grandmother was born in 1944 and is currently 70 years of age. 

2. The paternal grandparents married in Italy in January 1962 and migrated to Australia in June 1962.  They have six children, being four daughters and the father and his brother.  They have 15 grandchildren, including D, F and R.  The paternal grandparents are retired farmers who live on their agricultural property at Town E on the Central Coast.

3. The father was born in 1971 and is presently aged 43 years.  The mother was born in 1975 and is currently 39 years of age.  They married in August 1997 and first separated on 1 April 2001.  They reconciled on 29 February 2002 and lived together until their final separation on 16 August 2009.

4. Early in October 2004, the mother gave birth to a stillborn child.  She developed a depressive condition, for which she was prescribed medication until approximately one year after the birth of the twins.

5. It was common ground that the father used marijuana throughout the marriage, although the extent of his consumption was an issue in the proceedings.  The father maintained that he ceased using marijuana after the parties’ final separation and there was no evidence to the contrary.

6. Between the date of marriage and early 2006 the father and mother lived in a home unit at Town H owned by members of the paternal family.  The paternal grandparents then purchased a farm approximately seven minutes drive from their property.  The father and mother occupied the residence on that property until January 2007.  At that time, they purchased a house at Town I which was the family home until the final separation.

7. The mother alleged that the father subjected the children to physical abuse during the marriage.  The father alleged that the mother frequently resorted to physical chastisement of the boys.

8. The mother alleged that the father struck D on the back of his head on 13 February 2007.  The father denied that any such incident occurred in February 2007 or at any other time.  The mother alleged also that the father smacked D’s face on 26 June 2007.  He did not deny this contention in his affidavit, although he did respond therein to many of the mother’s allegations.  When asked in cross-examination why he failed to respond to this allegation the father said “I can tell you now it is a total fabrication, I never hit his face”.

9. The mother alleged that on 4 April 2008 she heard the father shout “shut up” at R and then she heard the child utter a loud cry.  She claimed that she saw blood in his mouth and found a cut under his top lip.  According to the father, this allegation was “a total fabrication”.

10. According to the mother, on 15 June 2008, the father struck the twins on their buttocks and legs.  The father made no response to this allegation in his affidavit.  On the night of 15 June 2008 an incident occurred between the parents which resulted in the police attending their home.  They each claimed that the other was the aggressor but, at the suggestion of a police officer, the father left the premises and stayed at the home of his parents for three days.

11. On 31 May 2009, the father smacked the twins and caused bruising to F.  The mother reported this incident to police on 31 July 2009.  The father was charged with assault and the police took out an interim apprehended violence order.  On 29 January 2010, the assault charge was dismissed and an apprehended violence order was made on a final basis for 12 months, for the protection of all three children.

12. The mother alleged that on 9 September 2009, while she was bathing F, he said “Dadda hurt my [JJ](penis) and scratched it”.  According to the mother this was F’s first complaint of sexual abuse by the father.

13. The mother alleged that on another occasion, when she was putting F into his night nappy, she noticed that he had “a slight rash on and around his genital area”.  The mother alleged that she “found it strange that [F] would have a rash as by this time he was wearing underpants throughout the day”.  According to the mother, the child said “ooooh, it hurts” and “Dadda did it to me”.  The mother maintained that the father was in the same room and said “No I didn’t”.

14. The mother alleged that, on 11 September 2009, she was bathing the twins together and F said “Dadda hurt my [JJ] (penis)”.  She claimed that she said “What did Dadda do?” to which F replied “He pulled and squeezed it, then he scratched it and it hurt”.  The mother said “When?” and F responded “In my other bedroom.  He closed the door and didn’t let [R] in”.  The mother maintained that R then said “Dadda didn’t let me in and I cry and I went to tell [D]”.  The mother alleged that F continued “Dadda put it in his mouth and eat it”.  The mother said “Did he show you anything?” to which F said “Dadda had a big one”.  The mother said “What did you do?” and F “I say no and then I kick him”.

15. The mother maintained that she then asked D “Has dad ever touched you where he shouldn’t?”  She maintained that D replied “Yes, a while ago he touched my bum and my penis.  I told him to leave me alone”.  According to the mother D continued “Mummy, he’s sick, he shouldn’t touch there, it’s wrong”.

16. The mother contended that, from late 2008 until the parties’ final separation, the father went into F’s bedroom almost every morning before he left for his parents’ property.  She maintained that he entered R’s room on only two occasions after leaving F’s room.  She deposed:

    I rationalised at the time it was because [F] is the more naive and compliant of the twins and would be more willing to put aside the abuse he had been subjected to by his father and go along with what his father wanted.  I also rationalised that [the father] was aware our marriage was deteriorating and may soon be over and he was trying to ensure he has a relationship with at least one of the three children.

17. The mother rang the DOCS Helpline on 14 September 2009 and reported the children’s statements.  On 1 October 2009, a JIRT team interviewed D.   On the same date, and on 9 October 2009, JIRT attempted to interview F.  The Child Protection case worker noted that F was “easily distracted” and that he “was unable to confide further contextual information” (exhibit 16).  The case worker referred F for sexual assault counselling and he subsequently attended 40 sessions with Ms K.

18. The mother recounted in her affidavit (paragraphs 184 to 218) several complaints of inappropriate sexual behaviour on the part of the father allegedly made to her by F between September 2009 and July 2010.  He was engaged in sexual assault counselling with Ms K for most of that period.  The mother deposed that the maternal grandfather and her sister also discussed the allegations of sexual abuse with F during that time.

19. The father denied the mother’s allegations of sexual assault of F and D.  In cross-examination he said that he did not know whether F made these statements.  He said also that he had done nothing which would cause the child to make these comments.  At a later time in his oral evidence, however, the father said “I toilet trained both twins, she encouraged me.  I put them in front of the toilet, pulled their pants down and made sure they weed into the bowl.  I touched their penises to direct into the bowl”.  The mother insisted that the father never toilet-trained the twins.

20. These proceedings commenced when the father filed an Initiating Application on 2 August 2010.  He sought orders that the children live with the mother and spend gradually increasing periods of time with him. 

21. By a Response filed on 27 October 2010, the mother sought a dismissal of the father’s application.  Some six or seven weeks later, on 7 December 2010, the mother filed an Amended Response whereby she sought orders that the children spend time with the father as determined by the court.  The mother sought the same parenting orders in an Amended Response filed on 21 February 2011.  On 16 February 2011, the father filed an Amended Initiating Application in which he sought orders that the children live with the mother and spend gradually increasing periods of time with him.  On 19 October 2011, the mother filed a further Amended Response in which she sought an order that the children spend no time with the father.

22. On 22 December 2010, the parties consented to orders which appointed Dr L to conduct family therapy.  This task ultimately fell to Dr M, who conducted eight sessions with various members of the family between 28 February 2011 and 9 June 2011.  Dr M determined that it would be contrary to the children’s best interests that she reintroduce them to the father at that time.

23. On 18 April 2012, a family consultant, Ms N, met with the parents but declined to interview the children.  In her Child Responsive Program Memorandum the family consultant explained that she made this decision “due to the already extensive interviews they have participated in including with the Department of Human Services, the Joint Investigation Response Team, family therapist, [Dr M] and [O] Sexual Assault Service”.

24. On 17 September 2012, the parties consented to orders for the appointment of Dr P as a single expert.  He prepared a report dated 23 January 2013 (exhibit 1).  In the course of his interviews, he reintroduced the three children to the father after a complete break in contact for over three years.  The consequences of this reintroduction were highly distressing for both parents and the three children.  I set out below in these reasons Dr P’s account of this meeting.

25. On 17 September 2012 orders were made by consent which provided for the twins to spend time with the paternal grandparents, in the presence of the mother, at a McDonalds restaurant each alternate Saturday from 11.00 am until 1.00 pm.  Eighteen such visits took place between 22 September 2012 and 1 June 2013.

26. On 29 July 2012, each of the paternal grandparents gave a written undertaking to the court that they would not permit the twins to come into face-to-face or indirect contact with the father during these visits.  There was no indication that the undertaking was translated into Italian for the paternal grandfather.  With respect to the paternal grandfather, it was patently obvious that he did not recognise this undertaking when it was shown to him in cross-examination.

27. On 5 June 2013, the parties consented to orders that the twins spend time with the paternal grandparents on three occasions from 11.00 am to 1.00 pm at a different McDonalds restaurant on 15 and 19 June and 13 July 2013.  These orders provided further that the mother and paternal grandparents would share equally the cost of supervision of the three visits by staff of Q Supervisors.  These contact supervisors prepared reports (exhibit 9) which indicated, inter alia, that the mother was present throughout these visits at their (the supervisors’) request.

The Evidence and Witnesses

1. The applicant father relied upon the following affidavits:

   1.Mr Barzetti (the father) sworn on 23 February 2014;

   2.Ms S (the father’s sister) sworn on 23 February 2014;

   3.Ms T (the father’s sister) sworn on 23 February 2014;

   4.Ms U (the father’s sister) sworn on 23 February 2014.

2. It was curious that the father’s affidavit contained numerous verbatim accounts of alleged conversations but, when taken to the same incidents in cross-examination, he could not recount this evidence.  With respect, the evidence of the paternal aunts was of little assistance in relation to the present state of the children’s relationships with the paternal family.  None of the paternal aunts have seen any of the children for well over three years.  Ms S and Ms U however, gave convincing evidence of the mother screaming abuse at the father and smacking the children.

1. The applicant paternal grandparents relied upon the following affidavits:

   1.Ms A Barzetti (the paternal grandmother) sworn on 23 February 2014;

   2.Mr C Barzetti (the paternal grandfather) sworn on 11 March 2014.

2. The paternal grandfather gave his oral evidence through an interpreter.  Sadly, it was obvious he had very little appreciation of the reasons why he was in court.  He said, inter alia:

   I do not know whether I am seeking orders.

   He said also:

   I do not know whether I have given an undertaking to the court.

   When shown the document he said:

   Yes I do, I don’t know, that is my signature, I cannot read it, I just signed it when asked, I don’t remember who asked me or where I signed it.

3. The paternal grandfather denied that the father ever smoked marijuana, a contention which he described as “all lies”, but which was confirmed by other members of the paternal family.  He denied that the father hit the twins and bruised F, saying “He never hit them, he was always working, nobody would ever say that”.  In fact, the father admitted that he caused bruising to F.

4. The paternal grandmother gave her evidence in a straightforward manner.  She impressed me as a committed grandmother with a strong wish to maintain or re-establish her relationship with the twins and, if possible, D.  She, too, gave convincing evidence of the mother screaming abuse at the father and smacking the children.

5. The respondent mother relied on the following affidavits:

   1.Ms B Barzetti (the mother) sworn on 27 October 2013;

   2.Mr V (the maternal grandfather) sworn on 28 April 2013;

   3.Ms W (the mother’s sister) sworn on 28 October 2013.

   When all of these witnesses gave oral evidence, it became palpably clear that they share a very strong dislike and distrust of the father.  During the oral evidence of Dr P, the mother screamed disapproving comments and caused a short adjournment in the proceedings.

6. As noted I had the benefit of a report dated 23 January 2012 and oral evidence from the single expert, Dr P.  I also had the assistance of a report from Dr M dated 30 June 2011 (exhibit 7).  Also in evidence were the Child Responsive Program Memorandum of Family Consultant Ms N (exhibit 8) and three supervised contact reports prepared by staff of Q Supervisors (exhibit 9).

Approach to these Proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The court must have regard to the objects of Part VII, as contained 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 to enjoy his or her culture.

3. 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.

4. 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”. 

5. 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. …

6. A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M v 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.

7. In M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:

   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.’

8. 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.

   (2)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.

9. 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.

10. 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:

    111.  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.

11. The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S & the Separate Representative (1996) FLC 92-665:

    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 for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.

The allegations of sexual abuse of F and D by the Father

1. Counsel for the ICL submitted that “the issues of physical and sexual abuse have been overwhelmed by the children’s refusal to have anything to do with the father” and “all of that is overridden by the greater problem of the children’s attitude to the father and paternal grandparents”.  Counsel for the ICL submitted also that “the court could probably rule out that [D] was sexually abused”.  A further submission was that sexual abuse of F “cannot be ruled out” but that his statements “are likely to be due to repeated questioning”.  I am inclined to agree with these submissions but consider that it is incumbent upon me to examine the relevant evidence and making findings in relation to the issue of sexual abuse, insofar as is possible given the relatively limited exploration of these issues in cross-examination.

2. Counsel for the father and paternal grandparents submitted that “the husband was not cross-examined by the mother’s counsel in relation to her sexual abuse allegations”.  It was said that “given the way the case proceeded it is not now open to either the mother or the ICL to submit that any child has been subject to sexual abuse”.

3. These submissions rest on a factual error.  Counsel for the mother did cross-examine the father in relation to her allegations of sexual abuse.  A number of F’s alleged statements were put to the father by the mother’s counsel.   The father said words to the effect that he had done nothing which would have prompted the child to make these comments.  The father agreed with counsel for the mother that he would give the same answer in relation to all of these allegations and this area of cross-examination sensibly stopped at that point.

4. It would appear that, taken at its highest, D’s complaint of sexual abuse on the part of the father could be construed only as an attempt at inappropriate touching.  I have referred above to the mother’s evidence as to D’s alleged complaint to her of such conduct by the father.

5. When interviewed by Dr P, D said:

   He choked me.  He called me a fucking dickhead.  He grabbed my dick one time and my arse as I was walking by.

   Dr P reported:

   He said he was quite young and in kindergarten at the time.  He said he could only remember one time when this happened and it was as he was walking past his father that he grabbed him but that was the only occasion …

6. D began to consult a psychologist, Dr X, on 4 November 2010.  Dr X’s notes of 29 March 2011 read in part as follows:

   Re Dad

   -    [D] not seeing him.

   -    Hates his guts, want to bash him.

   -    Ruined my life

   -    Grabbed my dick, sex with brother, wants to kill me …

   Dr X noted “Mum” in the category “any other people present” at this session, which suggested that the mother was present when D made these statements.

7. The DOCS file (exhibit 17) contained these notes:

   In relation to issues of sexual assault no investigation has occurred regarding any allegations of [R] being a victim of sexual assault.  In relation to [D] it has been alleged that his father tried to touch him on the penis.

   In 2009 D told JIRT investigators he thought “his father had tried to touch his penis, however, grabbed his upper thigh instead”.  He told JIRT investigators that the father had not actually touched his penis.  There was no information to substantiate any allegation of sexual assault against D, based on the information available at the time.

8. During 2010 DOCS received a further report which alleged that D had since disclosed to his mother that his father did touch his penis.  The DOCS file noted:

   During the interview with Community Services, on 9 November 2010, [D] states his father grabbed him on the penis, on the outside of his clothes for five seconds.  [D] states this occurred when he was in Year 1.  There were no witnesses to this event.  [D] stated he was shy and this was why he did not talk about the incident previously.  This behaviour is considered inappropriate yet not considered to be a sexual assault.  No information is available to substantiate allegations of [D] as being the victim of sexual assault.

9. The same file note of 11 November 2010 stated that F allegedly began to make complaints of sexual abuse to the mother approximately one month after the parents’ separation.  The case worker noted that information provided by F during his JIRT interview lacked contextual detail and that there was no substantiation of the allegations.  The file note further stated that F made “repeated disclosures regarding sexual assault by his n/father” during the counselling sessions with Ms K and continued to make statements of this nature to the mother.

10. The case worker, Ms Y, seems to have concluded that there was substance to the allegations of sexual abuse of F by the father.  She opined as follows:

    [F] is now 5 years of age and information he provides raises significant concerns regarding the possibility that he has been the victim of sexual abuse perpetrated by his father.  The information provided by [F] suggests a knowledge of sexual activity beyond what would normally be expected for a child of his age, eg stating “Dadda put his [the child’s term for penis] in my mouth, dada put his [the child’s term for penis] in my bottom”.  The comments made by [F] to his mother, [O Sexual Assault Service] and JIRT – Community Services have been consistent in nature.  Given [F’s] young age it is difficult to determine how he could consistently give the same/similar information if he was not exposed to such and/or had experienced such.  The issue of whether [F] may have been told to say he was sexually abused has been considered throughout this investigation.  While this option could not be excluded it seemed unusual that [F] could be so consistent in the information that he has provided.  It would appear that at times the more specific detail he has provided (although very limited in nature) does not support the argument that he is repeating what he has been told … Significant concerns are held by Community Services that [F] has been the victim of sexual abuse. Hence the risk of sexual harm, from his father, will be substantiated.

1. Dr P asked F “if anything bad had happened to him”.  F replied “At night Dad put his [the child’s term for penis] on my face.  I would scream.  He would cover my mouth.  He hit my head.  He did a hammer on my doodle.  He pulled it”.  Dr P noted that F said he had a wish to shoot his father.  He opined:

   He was calm and relaxed throughout this description.  There was no sign of any emotion.  He was very matter of fact with his explanation.

2. Dr P reached a different conclusion as to whether F was influenced to make complaints of sexual abuse by the father.  He opined:

   I believe that [F] is quite confused.  It would be extremely difficult for a child of seven to remember clearly events from when he was three unless these were extremely traumatic events.  [F] showed no sign or evidence of guilt or shame which one would normally associate with sexual abuse.  I believe his statements could well reflect a belief system and a commentary that has developed after 40 sessions of questioning and therapy and also repeated questioning by his mother … [F] said he was fearful and frightened of his father.  He also said that his father did a hammer motion.  I don’t believe that a three or four year old child would understand what a hammer motion or the concept of masturbation and that this is information that he would have gleaned from his mother.  His statements about wanting to shoot his father I believe reflect both [D] and his mother’s anger and angst.

   (As per original)

3. In relation to D, Dr P opined as follows:

   [D] has taken an extremely angry and confused position.  [D] has also been under a lot of pressure to support the mother.  He was very angry with me for allowing the interview and bringing the father into the room.  There was no evidence of fear I believe.  I believe that it was anger and affront.  I believe that he wanted to protect his mother and his brothers and wanted a show of solidarity against the father.  [D] also was struggling to find evidence about being sexually abused.  He made a statement that his father tried to touch him on the bottom and penis on one or a number of occasions when he was walking past him.  I believe that this again was most likely in response to questioning trying to be supportive of the mother.

4. The mother, the maternal grandfather and her sister all appear to have a fixed belief that the father sexually abused both D and F.  In her oral evidence the mother said, inter alia:

   Yes, I think [the father] should be in gaol for what he did to [F].  Absolutely I do not accept any innocent explanation, he never toilet trained him

   and:

   I am ashamed of what he did to my boys.

5. In his oral evidence, the maternal grandfather said:

   It is hard for me to say whether he sexually abused [D] – I reckon he has.  [D] is a nice quiet boy.  He would be embarrassed to tell the police.

6. Dr P reported that the mother’s sister told him that she was very distressed that the children saw the father.  She then commented on media coverage concerning sexual abuse within the Catholic Church, which she said made her feel even more concerned for the children’s safety.

7. There was little or no persuasive evidence that D was sexually abused by the father.  Effectively, that evidence consisted of the statements of a child who clearly is aligned strongly with the mother and has adopted her belief that the father is a sexual abuser of his brother F and, more generally, a dangerous person.  It seems that D has been reinforced in this belief by the maternal grandfather and the mother’s sister.  In these circumstances, I find to the requisite standard that the father did not sexually abuse D.

8. Similarly, it seems to me that it would be dangerous to place substantial weight on F’s complaints as evidence that he was sexually abused by the father.  I am inclined to agree with Dr P’s assessment of the reliability of F’s complaints and the impact of 40 sessions of sexual assault counselling.  In my view, F’s statements have now become dangerously contaminated by that counselling and repeated questioning by the mother and staff of child protection authorities.  I am not prepared to make a finding, to the requisite standard that the father sexually abused F on the evidence presented to me.

The allegations of physical abuse of the children

1. Each parent alleged that the other subjected the children to inappropriate physical chastisement.  The father alleged that the mother repeatedly smacked the children.  The mother alleged that the father hit the children with excessive force.

2. The mother alleged that the father began to discipline D by slapping the back of his head when he was a toddler.  She also alleged that he hit D’s face.  The father denied these allegations.

3. The mother contended that the father struck the twins on numerous occasions.  The father denied most of these allegations but admitted that he smacked the boys on 31 May 2009.

4. The mother maintained that, on the evening of 31 May 2009, she asked the father to retrieve the twins from an upper floor of the house because she was concerned that they may fall down the stairs.  She suggested that the father became angry because he had to move from lying on a lounge to deal with her request.  She claimed that she saw the father “yank [F’s] arm” and then she observed “[the father’s] arm go right back and swing to give a really hard whack”.  She maintained that F held his breath and that his face “was a purply blue”.

5. The mother alleged that she then saw the father “give [R] a large whack on his back” and drag him down the stairs by his arm.  The mother claimed that she saw “red hand and finger marks” on the children’s backs.  According to the mother, D then became involved in the incident and shouted at the father “Look what you did to my brothers you idiot.  Are you trying to kill them?” to which he replied “Shut up you stupid kid”.

6. The mother alleged that F complained of feeling sick during the next two days and informed staff at his preschool that he was experiencing headaches.  Allegedly he then said “Dadda hurt my head”.  The mother maintained that she asked the father if he had hurt F’s head and he agreed that the child may have come into contact with a cupboard.

7. The mother maintained that she then informed the father that she would take F to Z Hospital.  She contended that the father was sitting on a lounge with D, who said “Why did you do this?  How could you hurt my brother like that?”  According to the mother, the father then grabbed D’s shirt collar and “slammed [him] into the lounge”.  The father then “put his hand around [D’s] neck with his other hand at [D’s] throat”, saying “Now I am going to bruise you”.

8. In his affidavit the father deposed that he “smacked both children on their bottoms with their nappies on”.  He referred to “red marks on the children’s backs” and speculated that these injuries may have been the result of physical chastisement by the mother earlier that day.  He denied that he struck D and alleged that the mother began to scream abuse at him.

9. In his oral evidence the father said, inter alia:

   I only slapped the twins once.  I don’t remember if I slapped [D], it would not have been that often, maybe I did.  The twins were not wearing nappies at the time I think.  I don’t think this is an important matter really … yes it might be that they had nappies on.  I can’t remember what I said to Dr [P].  I don’t recall one of the children hitting his head in this incident.  I can’t remember if he did or he didn’t.

10. In cross-examination the mother was taken to a COPS entry dated 31 May 2009, which made no reference to F holding his breath or to his face being “purply blue” or to the father striking R during this incident.   The mother said that she gave a brief statement to police and included more detail in her affidavit, having noted this incident in her diary.

11. Dr P reported that the father told him of this incident:

    I asked about violence.  He said that the only violence that occurred was when he dragged [the mother] out of the house and she did get bruised.  He did smack [F] and [R] when they were misbehaving.  ‘I smacked [F] and [R] because they were mucking up.  She was in the kitchen.  She screamed at me to discipline them.  I smacked them on the bottom with an open hand.  [F] didn’t have a nappy on and he had a tender bum and got bruised.  I regret that.  Usually they had a nappy on.  I said I was sorry.  She reported it to DOCS.’

12. As noted, the father was charged with assault as a consequence of this incident and police took out an interim apprehended violence order (‘AVO’) for the protection of the mother and the children.  The assault charge was dismissed on 29 January 2010 and an AVO made on a final basis for 12 months on the same date.

13. The file of Z Hospital (exhibit 11) contained a certificate from Dr BB dated 21 January 2010.  Dr BB recorded that she saw F at 22.30pm on 3 June 2009 and made these observations:

    Injuries identified at this time were:

    1.  small bruise right buttock

    2.  x 2 small bruises to left leg, below his knee.

    [F] was observed in ED and remained stable and, after review by an ED senior (Dr [CC]) he was discharged …

14. It may be that F’s bruises had faded by the time of Dr BB’s observations which occurred some three days after the event.  There was no medical evidence of any injury to the child’s head.  By the father’s own admissions, however, he struck F with sufficient force to cause bruising.

15. On balance, I am satisfied that the father directed physical abuse at all three children on this occasion.  It may well be that he hit D on the back of his head from the time when he was a toddler.  I am satisfied that the mother resorted to physical chastisement of the children as a routine component of her parenting style.

Section 60CC considerations

1. The twins have not seen their father for some three and a half years and did not recognise him at the meeting in Dr P’s office on 15 November 2012.  It seems that the mother, her sister, the maternal grandfather and D are implacably opposed to the twins having a relationship with the father and that they see no benefit to the boys in spending time with the paternal grandparents.

2. Regrettably, it thus appears that the twins do not currently enjoy a meaningful relationship with the father.  In his oral evidence the father conceded that D “currently enjoys no relationship with me”.

3. In his report Dr P described the sequence of events when he brought the three children into contact with the father as follows:

   At the conclusion of interviewing the three boys without notice I then brought the father into the office and introduced him to them.  I hadn’t warned them or prepared them because I didn’t feel that I would obtain their co-operation; they had not seen him for a long time.  It was important for me to see him with the children.  The two twins were quite happy and relaxed.  They were playful at the start.  They didn’t recognise [the father].  [D] looked shocked.  He began screaming.  He covered his head with his top.  He screamed ‘Get him out of here.  I want to kill him’.  [The father] didn’t know what to do.  He said ‘I love you boys.  Don’t get angry’.  [D] continued to scream.  The two boys then became alarmed.  They didn’t realise who [the father] was.  [R] seemed to recognise him. [F] still didn’t have an idea who he was.  He was responding to [D’s] distress.  [D] said ‘he hurt our feelings.  He did bad things.  He choked me.  He wants to kill us.  I saw him three years ago’.  With the screaming the mother came to the door of the room.  She wanted to stop the interview. Then the interview was brought to a close.

4. D’s psychologist, Dr X, raised the subject of the father with him on 3 October 2013.  Dr X’s notes for that date read in part as follows:

   [D] was in such good form I was able to introduce the topic of his father.  In the past any attempt to touch on this subject would cause [D] great distress to the point that he would throw something around the room, get up, start shouting or walk out.  Obviously this reaction is not healthy, in fact a degree of reactivity to the mere mention of dad’s name was consistent with PTSD presentation.  On this visit we were not only able to mention dad but [D] was sufficiently rational sto ask why would dad have done these things, why would he have bashed him around the head, why would he have hurt [D’s] brothers etc.  We chatted about what sort of experiences may make a person act with such anger including acute pain in their own emotional lives, substance abuse, acting out what might have happened to them in their own growing up etc – and for the first time, [D] had a trace of insight and empathy towards someone he has hated so much.  We also covered strategies he might use when negative and intrusive thoughts about his dad cut into his consciousness.

   I thought we had made real progress in helping [D] move beyond his anger and towards a healthier attitude and understanding.  At the end of the session I left [D] go out into the waiting room and called in his grandad to express my satisfaction with progress.  I was then informed that the case was due to go back to court for a hearing and request that the two younger boys ([R] and [F] – neither of whom I have counselled) be given to the full time care of the paternal grandparents and dad.  Apparently [D] did not know that this was in the offing.

   While [D] was excluded from the action, I cannot understand what good such an action would serve.  As I understand it, the boys are happy with mum and extended family, they are going well at school, they didn’t enjoy supervised visits with paternal grand parents and I believe that if such a ruling was made in pgp’s favour, it would be entirely unenforceable; the twins would be very distressed and [D] would be so upset for them, that regardless of orders, he would go hunting for them to bring them back home.

   (As per original)

5. It should be noted that the father and or the paternal grandparents have never made an application for primary residence of the twins.  It seems that this notion arose from an observation made by a judicial officer other than myself on 9 August 2013.  My colleague opined:

   I could be entirely wrong but just from what I have seen so far, this case is shaping up as a case where we either have a situation where the father and paternal grandparents have no contact with the children or, alternatively, we change residence.  Now, if there is to be a change of residence that, from everything I have seen so far, is likely to be said by the expert to be a traumatic experience for the children.

6. The mother has always been the primary carer of the twins and, no doubt, they currently have a meaningful relationship with her.  She is their unchallenged future primary carer.

7. I have found that the father inflicted excessive physical chastisement upon all three children on 31 May 2009.  I am also satisfied that the mother employed physical chastisement as a routine component of her parenting.  The paternal grandmother, the father and paternal aunts, Ms S and Ms U all gave evidence of their observations of the mother hitting the children.

8. The father maintained that the mother frequently screamed abuse at him in the presence of the children.  His evidence was corroborated by the paternal grandmother, Ms S and Ms U.  The mother’s conduct during the oral evidence of Dr P might be considered an example of a propensity to scream at others, if she perceives some justification for doing so.

9. I am satisfied that the mother frequently screamed abuse at the father in the presence of the children.  I am further of the view that the father often became angry with the mother and/or the children and shouted at them.  It seems likely to me that the atmosphere in the family home was characterised by tension between the parents drug use on the part of the father and screaming by the mother.

10. In my view, the father clearly perpetrated an act of violence upon the mother on 1 April 2001.  The mother alleged that he pushed her off her feet and, as she fell to the floor, she hit her head on a wardrobe.  She claimed that the father hit her with sufficient force to cause bruising to her arms and back, then dragged her out of the house.  The mother gave evidence that a photo of her injuries was taken by police (exhibit 5), which showed extensive bruising on her back and elbow.  The father was convicted of an assault of the mother arising from this incident and an AVO was made for her protection.

11. In his oral evidence, the father said:

    On one occasion in 2001 she suffered bruising as a consequence of my actions.  I did drag her out of the house.  Maybe I did cause these bruises.  An AVO resulted from this incident.

    The father did not appear to show any particular remorse for his actions on this occasion.

12. The mother alleged that the paternal grandparents failed to protect F from physical harm on 13 September 2008, when he ingested Tiger Balm oil in their home.  She claimed that F followed the paternal grandmother into her bedroom to bring out birthday presents and, when he emerged, his face was a purple colour and he was pointing to his mouth.  The parents took the child to hospital where he was observed and released into their care (exhibit 11). 

13. The paternal grandmother referred to this alleged incident in her affidavit.  She claimed that F went into her bedroom, without permission, while the adults were sitting at her dining room table.  She claimed that the adults heard F cry out, then the father asked him what had happened in the bedroom.  She contended that the child fetched a bottle of Tiger Balm oil, which her husband used to relieve his sciatica.  She claimed that she advised the father to take the mother and the child to hospital when she (the mother) started to scream and “completely overreact” to this incident.

14. In my view, this incident was an unfortunate accident.  I draw no adverse inference from this event as to the capacity of the paternal grandmother to protect the children from physical harm.

15. As noted, the father conceded that he used marijuana throughout the marriage.  In his affidavit, he described himself as a “social smoker” and “not an addicted drug taker”.  The mother maintained that the father used drugs more frequently and in greater quantities.

16. Dr P reported that the father told him that he was “dependent on marijuana for 15 years”.  The father stated that, in this respect, he thought that Dr P “got it wrong”.  Dr P quoted the father as saying “I get stoned and numb.  It was a way of dealing with problems.  I now know it was not good for me.  I haven’t had any for 2 years”.The father agreed that he said to Dr P that he “was stoned” but maintained “I function pretty well”.

17. The paternal grandmother agreed that the mother asked her for help with the father’s use of marijuana.  She said she asked him why he used this drug and he replied “Mum, I’m stressed”.  The father said in his oral evidence that he smoked marijuana for about six months after the separation and has since been abstinent completely.

The Additional Considerations

1. Although no party sought substantive orders in relation to D, I consider that his views are relevant for present purposes because he is likely to be in a position to exert influence over the twins.  I have referred above to Dr P’s assessment that D felt angry and wished to protect the mother and the twins from the father when he saw the family in December 2012. 

2. In March 2011 D discussed with Dr M his views in relation to spending time with the father.  She reported as follows:

   [D] said:“Dad hates me.  He called me stupid idiot and that he [Dad] hated him”.  When I asked him about seeing his father, [D] replied, “No fucking way”.  When I asked [D] what would happen if his father were in the same room as him, [D] said: “I would grab a knife and stab him”.  [D] was angry and very upset during this exchange and took a while to calm down.  We talked about what [D] did with his parents and [D] said:  “Dad does nothing with us”.  [D] also said:  “[F] won’t want to see him.  He hates him”. 

1. Dr M reported on her next session with D as follows:

   [D] was happy to talk with me on his own.  He again repeated that “Dad hates me and Dad wants to kill me”. When I asked him how he knew this [D] said his father had told him so.  [D] also said that his father had strangled his throat.  [D] said: “Dad had sex with my brother” and that he knew this because his brother had told him so.  [D] then said “Dad never played with me and he hurt by my brother and my mother”.  [D] was unable to remember or describe good times with his father or enjoying being with father.

   When I again questioned [D] in this session about future contact with his father, [D] said:  “I want to kill him”.  As he spoke [D] became extremely upset, throwing pens and grabbing a chair to also throw.  [D] said:  “I don’t want to see him, he ruined my life”.  [D] said:  “If dad was killed would be free, he would be out of my life.” While I spoke to him about his feelings, [D] calmed down and was very sad.

   (As per original)

2. Dr M reported on her next session with the family as follows:

   On the 29 March 2011, the session started with [the mother] and [D] in the room.  I summarised where we were at with the idea of [Mr G Barzetti], the father, being reintroduced to the children and all participating in family therapy.  [D] became extremely angry and very upset, throwing things and crying uncontrollably.  He sat banging his head against the wall while also kicking the wall with his feet.  [The mother] became extremely stressed seeing this response.  I spoke to both [the mother] and [D] about the fact that I would not make [D] do anything that he did not want, or that did not feel safe.  [D] was able to calm himself down however was still visibly upset.

3. I have referred above to Dr P’s description of D’s behaviour when he introduced the father to him and the twins.  Prior to that encounter, Dr P asked D about the father and paternal grandparents.  He reported as follows:

   He described a good relationship with his maternal grandparents and with the mother’s boyfriend.  He said that he got on very well with his mother.  “Mum is the best in the world”.  I asked about his father.  He said “I hate his guts.  He hurt our feelings.  He hit us.  He threw us downstairs.  He told us to fuck off”.

   I asked about the paternal grandparents he responded “We don’t like the grandparents.  They will put us near that man.  She said if you don’t come I will take your toys away.”  He said that his Nona had birthday presents but they had to go and get them.  He said that he wasn’t happy about this.  D was calm and composed during this time. 

4. When Dr P asked R about the father, he said “I don’t have a dad”.  He reported that R “did not want to see his father”.  F “was quiet and did not respond” when Dr P asked him about the father.  He reported:

   He said he was very close to his maternal grandparents. I asked about his mother.  He said “she does everything”.  I then asked about his father.  He was quiet and did not respond.  He said he liked his mother’s boyfriend.  I then asked about his father again he said his father used to choke him and at night would hurt him.  He responded “he called mum a bitch”.  He said that when he was seeing the grandmother that he bit her finger.  “I bit Nona’s finger.  [R] gets scared when we see Nona”.  I asked if anything bad had happened to him.  He said “at night dad put his [the child’s term for penis] on my face.  I would scream. He would cover my mouth.  He hit my head.  He did a hammer on my doodle.  He pulled it.”

   He then talked further about the paternal grandmother.  One day my mum put my grandmother on the phone.  She said to call my mum a bitch.  I was three”.  He said his wishes were to shoot his father.  He was calm and relaxed throughout this description.  There was no sign of any emotions.  He was very matter of fact with his explanations. 

5. In January 2013 Dr P expressed these opinions as to the nature of the children’s relationships with the father:

   Since the breakdown of the marriage in August 2009 he has had no contact with the children.  Consequently the children now are quite distant from him.  [D] is very angry and enraged and appears to be parentified and is very rejecting of [the father] and protective of his mother.  The twins also appear somewhat parentified particularly [F].  [F] is claiming victim status, however for a child that has supposedly been traumatised by an adult he surprisingly had no memory of who his father was and was very confused when he met his father.  He didn’t realise that [the father] was his father.  This suggests to me that [F’s] ideas and fears of the father are less likely to be valid fears from his own experience and more likely to be fears and beliefs that have developed subsequent to the breakdown of the marriage.  Sadly there doesn’t appear to be a substantial relationship between the father and the children although they are aware of him but their belief system about him is that he is a dangerous and abusive person.

6. Dr P formed the view that the mother “has not been intentionally malicious with regard to distancing the children from the father”.  He considered: “I believe it has been misguided and as a result hysterical and histrionic features and histrionic belief system that she has developed about the father.”

7. In January 2013 Dr P assessed that the children “did have a connection with the paternal grandparents”.  He opined:

   I formed the view on the history and the information provided that the children although not strongly connected to the paternal grandparents had the potential to enjoy a relationship with them.  I found to reason to suggest that the paternal grandparents did not have a significant contribution to make to the children as in a grandparent capacity.

   (As per original)

8. As noted, the twins visited the paternal grandparents on eighteen occasions between 22 September 2012 and I June 2013 at the McDonalds restaurant in Town DD.  All of these visits occurred in the presence of the mother.  Three additional visits took place on 15 and 19 June and 13 July 2013, in the presence of the mother and under the supervision of staff of Q Supervisors, at the McDonalds restaurant in Town EE.

9. It is no doubt regrettable that the paternal grandmother told F on the first visit that she would take him to her farm “one day”.  It seems clear that the twins associate the farm with the father and that they have formed a firm wish not to see him.  In any event, the contact reports (exhibit 9) described an increasing level of opposition from the twins to the visits with the paternal grandparents.

10. On 15 June 2013 the supervisor reported that R ran away from the paternal grandparents to a table by himself and shouted “I am not going to sit with them after what they tried to do to us”.  Both boys then sat under a table in silence.  They refused to play with balloons offered by the paternal grandmother.

11. On 29 June 2013 the mother informed the supervisor that F had defecated in his pants on the way home from the last visit.  Neither boy greeted the paternal grandparents in any way on this occasion.  F lay full length on a couch with his head behind the mother’s back and R sat under a table.  They angrily refused the supervisor’s requests that they greet the paternal grandparents.  During this visit R said to the paternal grandmother “I don’t want to see your ugly face”.  When she offered chocolates, R said they were “poison”.

12. At one point in this visit, the boys interacted successfully and happily with the mother, the paternal grandmother and the supervisor while they all played with balloons.  The paternal grandmother shared hot chips with the children and they happily played ‘I spy’ with her and the supervisor.  The paternal grandfather joined in this game and the children laughed with him at times.  At the end of the visit, all of the participants said goodbye ‘but without hugs or kisses’.

13. On 13 July 2013 the boys covered their faces when they arrived and turned away from the supervisor.  Both boys sat under the table when the mother informed them of the arrival of the paternal grandparents and shouted “go away”.  The boys refused to respond to the paternal grandmother when she tried to talk to them.  They rejected home cooked food offered by the paternal grandmother, with F shouting “you poisoned them”.  Towards the end of the scheduled time F soiled his pants and, at that point, the supervisor terminated the visit. 

14. The supervisors of the second and third visits reported on polite interaction between the mother and the paternal grandparents on occasions.  On 29 June 2013 the supervisor reported that the mother asked the paternal grandparents about their current crops and requested that the paternal grandmother bring a bottle of her home made fig jam on the next visit.  The supervisor noted “[The paternal grandmother] and [the mother] chatted together with interest in each other’s conversations”.  On 13 July 2013 the supervisor reported that “the mother and paternal grandmother conversed generally in a polite way”.

15. In her oral evidence, the paternal grandmother described that the last visit supervised by a member of staff at Q Supervisors as ‘a disaster’.  She said also: ‘I do not think the McDonalds visits were successful’.  The paternal grandmother and the father are currently of the view that visits in the absence of the mother may be viable, if a member of staff of Q Supervisors effects changeovers.

16. Unfortunately, Dr P did not share the optimism of the paternal grandmother and the father that this regime would operate successfully.  He doubted that this arrangement would establish a relationship between the twins and the paternal grandparents and, in time, with the father.  In his oral evidence Dr P expressed the view that it is probable that no further step now is available to attempt to build a relationship between the twins and the paternal family.  Before he gave evidence Dr P read the recent affidavits, reports of psychologists Ms FF and Dr X and diary notes of the mother contained in the DOCS file. 

17. Dr P gave this oral evidence, inter alia:

    I am worried that it may have reached a point of no return.  The children have absorbed too much stress and anxiety from the mother to form their own point of view.  Retrospectively time with the paternal grandparents without the mother should have been tried but persisting now is likely to compound further damage.  The twins have not established a good relationship with the paternal family.  No contact with the paternal family will unburden the children.

18. Dr P considered that gifts and cards from the paternal grandparents would not benefit the twins.  He felt that even this form of contact with the paternal family “would be likely to enrage them”.  He opined that: “the best outcome would be for the mother to provide information to the paternal family”.

19. Dr P specifically rejected the proposal for the twins to spend time with the paternal grandparents, in the absence of the mother but with staff of Q Supervisors effecting changeovers and supervising the visits.  He said “at this point it is better to unburden the children and have them know they are free of the ongoing battle.  I think it has reached a point where continuing to flog a dead horse is unlikely to be unsuccessful.  I think in mid-adolescence they may be able to reconnect, after five to seven years of being unburdened”.

20. Dr P factored into his opinions and recommendations the disadvantages for the twins of cessation of all contact with the paternal family.  He said, inter alia “there will be long term problems for them having no relationship with the father.  They will carry a sense of loss and abandonment, even if there are good reasons for not having a relationship with the father.  It is very damaging for a child to believe a parent wants to kill him.  Another way of phrasing it is he feels that the father is no good for him.  These children and likely grow up feeling that they were not wanted”. 

21. In my view, it should be remembered that the mother participated in a total of twenty-one visits for the boys with the paternal grandparents in 2012 / 2013  The supervisors noted that she and the paternal grandmother conversed politely on occasions.  It seems to me that the mother made genuine attempts to foster a relationship between the twins and the paternal grandparents, despite submissions to the effect that she deliberately sabotaged the visits.

22. As noted, the father admitted that he used marijuana during the marriage but there was an issue as to the extent of the consumption.  He deposed that he was ‘a social smoker’ and that he ‘was not an addicted drug taker’.

23. Dr P reported as follows on his discussion about marijuana use with the father:

    He did say he was dependent on marijuana for 15 years.  He used it during the marriage.  He found it to be a coping mechanism.  He would use two or three times per day.  ‘I’d get stoned and numb.  It was a way of dealing with the problems.  I know now it wasn’t good for me.  I haven’t had any for two years.’

24. In his oral evidence the father said:

    Towards the end maybe I was addicted to marijuana, maybe the last two years of the marriage.  I used marijuana on a daily basis for the last couple of years.

    The father said that he thought that Dr P “got it wrong that I was dependent for 15 years”.

25. Dr P opined that the father’s marijuana use “probably had a significant impact on his relationships and ability to respond”.  In his oral evidence the father agreed that his drug use “had a significant impact on my relationships towards the end”.

26. It seems to me that the father’s use of marijuana was in part a means of coping with an unhappy, unfulfilling marriage.  In my view, his drug use is likely to have created an emotional distance between him and the children and exacerbated the level of the mother’s anger and frustration in the relationship.  I consider that it is more probable than not that the father is currently completely abstinent from marijuana.

The presumption of equal shared parental responsibility

1. As noted, the father conceded that the mother should have sole parental responsibility.  This proposal was supported by the ICL and seems to me to be the appropriate outcome on this issue.

2. In my view, the presumption has been rebutted by evidence that it would not be in the children’s best interests for the mother and father to have equal shared parental responsibility.  The father has not seen the children for approximately three and a half years and they did not recognise him at the meeting engineered by Dr P.  The parents have no communication and, at least from the mother’s perspective, there is no prospect of improvement in that situation.  It is practically impossible to envisage how the parents could consult and make joint decisions about the welfare of their children in the foreseeable future.

3. The result of this determination is that I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each parent.  I am at liberty to proceed directly to the determination of what orders are in the best interests of the twins.

Conclusion

1. Sadly, I reach the conclusion that there is now no action available which is likely to succeed in building a relationship between the boys and the paternal family.  Dr P gave persuasive evidence that any such action would be highly likely to be damaging to the children.  In my view any further attempt to force the children to spend time with the paternal grandparents it likely to be counter-productive to the prospect that they may elect to reconnect with the father and his family in mid-adolescence.  It seems to me that it would be foolhardy now to require the twins to resume visits with the paternal grandparents in any circumstances.

2. I accept Dr P’s evidence that gifts and cards from the paternal grandparents are likely to “enrage” the twins.  I consider it likely that such gifts and cards would also “enrage” D and that he would display his anger clearly to the twins.

3. I am of the view that the mother should provide information concerning the children to the paternal family.  Accordingly I will make orders as proposed in the alternative by the father, with the exception of provision of an explanation of my Reasons for Judgment from the ICL to the twins.  I consider that there is substance in the ICL’s opposition to that proposal.

4. I can but express hope that all three children will wish to re-connect with their father and paternal family in the fullness of time.  As noted above, Dr X succeeded in engaging D in a productive discussion about the father in 2013.  It may be that all three children will manage to form independent views of their father and paternal grandparents as they gain maturity.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 11 April 2014.

Legal Associate: 

Date:  11 April 2014