Benton and Benton

[2014] FamCA 251

FAMILY COURT OF AUSTRALIA

BENTON & BENTON [2014] FamCA 251

FAMILY LAW – CHILDREN – where the mother has a genuine belief that the father has sexually abused her daughter (the father’s stepdaughter) – where the father was found not guilty in criminal proceedings – - where there is an unacceptable risk that the father has sexually abused his stepdaughter – where the mother asserts the father has sexually abused his own daughter – where it was found there was no unacceptable risk that the father had sexually abused his own daughter - where the father’s own children have a strong relationship with their father – where it was in the best interests of the children to spend time with the father in the presence of another adult who acknowledges the findings that have been made about the father’s behaviour

Evidence Act 1995 (Cth)
s 140(2)(c)
Family Law Act 1975 (Cth)

s 69ZT(1) and (3)

Baker v The Queen (2004) 223 CLR 513
Briginshawv Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344
Khalil & Tahir-Ahmadi (2012) FLC 93-506
M & M (1988) FLC 91-979
Maluka & Maluka [2009] FamCA 647
Maluka & Maluka (2011) FLC 93-464
Maluka & Maluka (2012) 47 Fam LR 272

Slater & Light (2013) 48 Fam LR 573

APPLICANT: Mr Benton

RESPONDENT: Ms Benton

INDEPENDENT CHILDREN’S LAWYER: Wallace Wilkinson & Webster

FILE NUMBER: HBC 336 of 2012

DATE DELIVERED: 15 April 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Hobart

JUDGMENT OF: Watts J

HEARING DATE: 18 - 22 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dixon

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: Ms Turnbull

SOLICITOR FOR THE RESPONDENT: Michael Briant Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Wallace Wilkinson & Webster

Orders

1. Subject to the qualification contained in this order, the mother Ms Benton shall have parental responsibility for the children B born … 2003 and C born … 2006 (“the children”) in relation to all major long term issues including:

   1.1.The children’s education (both current and future);

   1.2.The children’s health (both physical and emotional);

   on the conditions that:

   1.3.The mother will contact the father in writing and provide him with her views about any such issue seven days before making a final decision about any such issue;

   1.4.The mother will take any response received by the father into account when making her decision about any such issue;

   1.5.The mother will advise the father in writing within 28 days of any decision made by her about any such issue;

   1.6.The mother shall have the final decisions about any such issues;

   Provided that this order for parental responsibility does not give the mother sole responsibility as to questions of major long term issues about the children’s names and/or a change to the children’s habitual living arrangements to outside the Commonwealth of Australia, without the consent of both parents in writing or an order of a court exercising jurisdiction under the Family Law Act, and in relation to those issues parental responsibility with be shared.

2. The time limitations in orders 1.3 and 1.5 shall not apply if there is a question of emergency.

3. The children shall live with the mother.

4. The children shall spend time with the father in school term time each Saturday from 9.00am until 5.00pm on the following conditions:

   4.1.That changeover occur at the Hobart Children’s Contact Centre and if the centre is not available at times within 35 minutes of the commencement and conclusion times, at McDonalds Restaurant Suburb D or such other location agreed between the parties in writing.

   4.2.The mother is at liberty to nominate up to four Saturdays per year (but not more than two consecutively) on which the father’s time shall not take place, such nomination to be made in writing 3 weeks in advance.

   4.3.The children’s time with their father will be in the presence of another adult who has signed the undertaking and acknowledgment attached to these orders. Prior to the children spending time with their father, the father is to indicate to the mother in writing which adult or adults will fulfil the role of supervisor .The father is to have served on the mother a copy of any undertaking and acknowledgment by that person prior to the supervision taking place. 

5. The children shall spend time with the father each Christmas from 9am until 1pm on Christmas Day or from 9am until 6pm on Boxing Day, at his election, to be made in writing one month prior to each Christmas Eve and failing election, time shall occur on the Boxing Day.

6. That not before the end of second term holidays in 2014 the children spend time with the father as follows:

   6.1.For seven days from the first Saturday in two of the three school holidays at the end of terms 1, 2 and 3 at 10.00am, with the father to nominate in writing which two holidays he intends to spend time at least one calendar month in advance;

   6.2.For seven days from 10.00am on 20 January in each year or such other seven day period as is agreed in writing between the parties;

   On the conditions that:

   6.3.The children shall not share a bedroom, bed or other sleeping space with the father;

   6.4.There will be another adult present who has signed the undertaking and acknowledgment attached to these orders. Prior to the children spending time with their father, the father is to indicate to the mother in writing which adult or adults will fulfil the role of supervisor .The father is to have served on the mother a copy of any undertaking and acknowledgment by that person prior to the supervision taking place. 

7. Both parents can attend to watch B’s soccer games provided that the parent who would not be otherwise looking after B that weekend remains at the non-coaching side of the field.

8. The father be restrained from denigrating, belittling, insulting or abusing the mother either to, or in the presence of the children.

9. The mother be restrained from denigrating, belittling, insulting or abusing the father either to, or in the presence of the children.

10. The father do everything in his power to ensure that no third party denigrates, belittles, insults or abuses the mother either to, or within the presence of the children.

11. The mother do everything in her power to ensure that no third party denigrates, belittles, insults or abuses the father either to, or within the presence of the children.

12. The mother ensure that the father is notified in advance of all medical/psychological appointments relating to B and C and the mother communicate to the father in writing relevant information about the children’s health from time to time.

13. The father may attend all school and extracurricular activities of the children which the children would normally attend.

14. The parties utilise a communication book to record issues regarding the children, such book to travel with the children. 

15. Each parent have reasonable telephone communication with the children with they are in the other parent’s care.

16. The Independent Children's Lawyer liaise with E House (Sexual Assault Support Service) staff or such other appropriate service as may be nominated by the Director of Child Dispute Services, Family Court Hobart Registry to arrange for C and B to attend counselling at the service and the following shall apply:

    16.1.Subject to paragraph 16.2, the Independent Children's Lawyer is to request the counsellor(s) to provide the children with age appropriate information about the findings made in these Reasons and education in protective behaviours;

    16.2.What is proposed in paragraph 16.1 is not to take place for C, if C’s current therapist indicates in writing that it is not currently appropriate;

    16.3.If C’s therapist so chooses, that therapist may undertake the counselling referred to in paragraph 16.1;

    16.4.The manner in which the information is conveyed to the children either individually or jointly is to be a matter for the counsellor providing that information.

17. For the purposes of the preceding order, the Independent Children's Lawyer is to provide the counsellor with a copy of these Reasons and a copy of both family reports.

18. 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.

Undertaking and Acknowledgement

I acknowledge that I have read the Reasons for Judgment of Justice Watts dated 15 April 2014 and understand that the Family Court has made a finding that there is an unacceptable risk that Mr Benton sexually interfered with his step daughter F when she was 12 and 13 years of age.

On any occasion that I agree to be present when the children, B and C are with their father, I will be mindful that the Family Court has made that finding and be vigilant in ensuring that the father does not interact with or have the opportunity to interact with either of the children in any inappropriate manner.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benton & Benton 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: HBC 336 of 2012

Mr Benton

Applicant

And

Ms Benton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The mother has a genuine belief that the father sexually abused her daughter, F, (the father’s step-daughter) in 2008 and 2009 when F was 12 and 13 years of age. The central question in this case is; did the father do so, or, if it is inappropriate to answer that question, is there an unacceptable risk that he did so. The mother also has a genuine belief that the father digitally penetrated C whilst applying ointment to her vagina when she was 5 years of age and the same questions need to be considered in respect to that belief. Depending on the answer to these questions, I am asked to decide what parenting orders should be made in respect of the two children of the parties, B aged 10 and C aged 7, both of whom have a strong and positive relationship with their father.

APPLICATIONS

1. The position of the parties and the Independent Children’s Lawyer changed during the course of the hearing. In summary, by the end of the hearing, the primary position of the Independent Children’s lawyer and the mother was that I would make a finding that there was an unacceptable risk that the father had sexually abused F and that as a consequence, the younger children’s time with the father was restricted. The father’s position was that no such finding should be made and that he should have liberal defined unsupervised time with the children. The text of the orders sought at the end of final submissions by each party and the Independent Children's Lawyer are set out in Schedule 1.

DOCUMENTS RELIED UPON

1. The documents each party relied upon are set out in Schedule 2.

2. No application was made for F to give evidence in this hearing. Her police statement and her oral evidence at the father’s criminal trial (exhibit 3) were tendered in evidence.

RULING ON THE APPLICATION OF THE RULES OF EVIDENCE IN THIS CASE

1. In this parenting case the father has raised objections to, amongst other things, hearsay and opinion evidence upon which the mother wishes to rely. Two issues arose:

   5.1.Should the rules of evidence excluded by s 69ZT(1) Family Law Act 1975 (Cth) (“the Act”) apply to any issue or issues in this case?

   5.2.If those rules apply to one or some issues, should they apply to all issues?

2. I answered the first question in the affirmative and decided that the rules of evidence would apply to evidence which goes to central issues in this case involving serious allegations of abuse of two children. I answered the second question in the negative, ruling that the rules of evidence excluded by s 69ZT(1) would not apply to all other issues. I reserved my reasons and now provide them.

3. Because of the nature of the allegations, the father and the Independent Children's Lawyer asked that the court decide to apply the rules of evidence that ordinarily would be excluded by the provisions of ss 69ZT(1) of the Act to all the evidence in this case. The mother opposed any decision to apply the excluded rules of evidence to any issue.

4. Subsection 69ZT(1) of the Act excludes certain rules of evidence, in certain Divisions and Parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) in child-related proceedings. Subsection 69ZT(2) of the Act provides a court may give such weight (if any) as it thinks fit to evidence admitted under ss 69ZT(1). Subsections 69ZT(3) and 69ZT(4) of the Act are in the following terms:

   (3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

   (a) the court is satisfied that the circumstances are exceptional; and

   (b) the court has taken into account (in addition to any other matters the court thinks relevant):

   (i) the importance of the evidence in the proceedings; and

   (ii) the nature of the subject matter of the proceedings; and

   (iii) the probative value of the evidence; and

   (iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

   (4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying. [emphasis added]

5. The mother argued that the issues in this case were not exceptional. Counsel for the mother relied upon an appeal in the case of Maluka & Maluka [2009] FamCA 647 (“Maluka (No.1)”). The Full Court, by way of obiter, in Maluka & Maluka (2011) FLC 93-464 (“Maluka (No. 2)”) at [123] said:

   123. We do not accept the father’s argument that the effect of s 69ZT is to establish a rule of general application that in cases where a court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the rules of evidence excluded by s 69ZT(1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victim partners why, notwithstanding an order is sought to terminate a child’s relationship with a parent, a judge might determine the risk issue by reference to ss 69ZT(1) and (2) of the Act.

6. Maluka (No 1) was overturned on appeal for reasons not related to the present discussion and remitted for rehearing. At the retrial, Coleman J in Maluka & Maluka (2012) 47 Fam LR 272 (“Maluka (No. 3)”) determined that the circumstances in the case were “exceptional” within the meaning of ss 69ZT(3) of the Act.

7. Coleman J’s decision in Maluka (No. 3) was considered by a Full Court in Khalil & Tahir-Ahmadi (2012) FLC 93-506 (Coleman, May, Ainslie-Wallace JJ). At [93], the Full Court in Khalil endorsed parts of his Honour’s reasons as “instructive” and referred to them with approval:

   28.As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party.

   …

   30.In the Court’s view with section 69ZT(1), the difficulty, as suggested to Counsel during the course of debate throughout the morning, in the context of proceedings where allegations of family or domestic violence are a major issue is that, ultimately, the parties cannot know what, if any weight, is given to evidence which would otherwise be inadmissible until the delivery of judgment. Relying upon evidence which is admissible has the attraction that the proceedings are transparent. Findings of fact can be made upon evidence which, being admissible, if accepted, are “safe”. If based upon erroneously admitted, or rejected evidence, those findings can be overturned. Those findings of fact can be challenged in the time-honoured way. An appeal Court faced with such challenges can determine them in accordance with well-settled principles.

   31.To the extent that discretionary challenges are raised which are not dependent upon overturning findings of fact, an appellate Court has the considerable advantage of knowing exactly what facts were found and that they were made in reliance upon evidence which was admissible. The task of then determining whether inferences drawn or conclusions reached in reliance upon those findings of fact exceeded the generous ambit of a reasonable exercise of discretion becomes more readily achievable.

   32.It is a matter of significance within section 69ZT(3)(a)(i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M v M (a reference to the High Court’s 1988 decision), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.

   …

   37.Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afG inadmissible evidence any significant weight in the exercise of the Court’s fact-finding functions.

   38.As noted earlier, this aspect of the matter is not a one-way street. It might superficially be thought that to apply section 69ZT(3) would, to use the colloquial, raise the bar in terms of the onus which the mother bears. As suggested earlier, however, that is not entirely accurate and there is, in the Court’s view, an inherent danger in relying upon evidence which would be inadmissible, but for section 69ZT(1), that the mother may well be placed in a position where she has the benefit of findings of fact which are not sustainable on appeal. It could be asked rhetorically, what mischief would be likely to arise from the application of the rules of evidence? None has been suggested. That is unsurprising, as the provisions of the Evidence Act facilitate rather than impede the receipt of evidence probative of facts or issues in dispute, and guard against the receipt of “evidence” which could not safely or fairly do so.

8. As discussed during submissions, the guidance by way of obiter from the Full Court in paragraph 123 of Maluka (No. 2) and in paragraph 93 of Khalil, seem to point in opposite directions. This underscores the fact that minds may differ on what factual configuration might satisfy the requirements of ss 69ZT(3) and in particular, ss 69ZT(3)(a); namely, exceptional circumstances. In my view, the decision about whether the requirements of ss 69ZT(3) will be satisfied in a particular case, is a matter for the exercise of judicial discretion based upon the facts of that case and may not easily and conclusively be determined by statements of general guidance.

9. In this case, a number of important objections relate to evidence which goes to the central issues involving whether there is an unacceptable risk to the subject children arising out of the serious allegations of sexual abuse. In the context of this case, I find that the consideration of those issues are an exceptional circumstance as that word was explained by Callinan J in Baker v The Queen (2004) 223 CLR 513. I take into account the importance of that evidence to the determination of the outcome of these proceedings. That importance is emphasised by the fact that the parties and the Independent Children's Lawyer have structured the orders they seek very differently depending on what findings are made about the central issues. It is in my view important that the evidence about these matters be as probative as possible. In relation to those objections, the rules of evidence otherwise excluded by ss 69ZT(1) of the Act will be applied.

1. The second question is, given the rules of evidence will be applied to evidence about particular issues, should those rules of evidence be applied to all the evidence in the case.

2. In Maluka (No. 1), Benjamin J rejected the notion that, in the circumstances of that case, the rules of evidence should be applied on a global basis. The trial judge preferred to apply ss 69ZT(3) on an “issue by issue” basis. The Full Court in Maluka (No. 2) did not disagree.

3. In the retrial in Maluka (No. 3) the parties and the Independent Children's Lawyer urged Coleman J to apply the provisions of ss 69ZT(3) on a global basis and he did so.

4. In this case, counsel for the Independent Children's Lawyer referred to what Coleman J said at paragraph 7 of Maluka (No. 3) as something that should guide me in this case:

   7. The logic underpinning the position advanced by all Counsel is, to the Court’s mind, irresistible. To do other than either apply the provisions of the Evidence Act wholly or to dispense with them wholly would in the circumstances of this case, only be conducive to confusion at best, and at worst raise a serious possibility that a party or parties would be denied natural justice.

5. Whilst the Full Court in Khalil referred with approval to those parts of Coleman J’s judgment referred to above, the Full Court did not specifically endorse what Coleman J had said at paragraph 7 contenting themselves in saying:

   …In that matter, counsel for the parties and the Independent Children’s Lawyer urged his Honour to adopt the same approach to all the evidence, that is either applying the provisions of s 69ZT or the Evidence Act. His Honour accepted this submission. …

   and as is clear from what his Honour said, his Honour was not attempting to make any general statement, but restricting his comment to “the circumstances of this case”.

6. The clear words “an issue” in ss 69ZT(3) and (4) of the Act (emphasised in their context above) seem to mitigate against any general proposition, as initially urged by counsel for the Independent Children's Lawyer in this case, that in most cases it should be an all or nothing application of the excluded rules of evidence to all issues in the proceedings. Those words point in the direction of an issue by issue determination, although exceptional circumstances in an appropriate case may lead to ss 69ZT(3) being applied to all issues.

7. As the Full Court said in Maluka (No. 2):

   122. The Full Court decisions in Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 adopt a common approach to s 69ZT. Namely, that the decision to apply sub-section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein. Application of the sub-section is discussed in terms of its application to issues, and not the entire hearing, although the later course is permissible.

8. I find that in this case apart from the issues which I have identified, the circumstances are not exceptional and the rules of evidence are not to be applied in respect of the other issues in this case.

SHORT HISTORY

1. The father was born in 1969.

2. The mother was born in 1970.

3. The mother’s child F was born in 1996. She is currently aged 18.

4. The parties married in 2003.

5. The parties’ child B was born in 2003. He is currently aged 10.

6. The parties’ child C was born in 2006. She is currently aged 7.

7. The parties separated on 14 June 2010.

CREDIT

Father

1. Counsel for the father conceded during submissions that parts of the father’s evidence were contradictory.

2. Counsel for the father submitted that I would not make general findings of credit based upon contradictions in his evidence, saying the father was not an articulate person and struggled to be able to express what he really means and wants to say.

3. On a number of occasions, when confronted with an inconsistency, the father said that he was not particularly intelligent or that things were “fuzzy” in his memory.  I accept that some of that was not a pretence but it would be an error to place great weight upon the way the father presented in Court and upon what the father said in his evidence. 

4. A very important example of this unreliability relates to the father’s interaction with C’s former counsellor, Ms G. The father was asked questions about anything he might have said to Ms G that he regretted. He stated he couldn’t remember what he had said. He thought it might have started off with something about C’s counselling with Ms G and that he had had no input into it. He said his solicitor suggested he should contact Ms G when C first started counselling so he could be involved in it, however on leaving a message, Ms G never returned his call and he was advised she was going on maternity leave. He admitted he was frustrated and probably said things he now regrets, however, he did not remember what they were and could not say if they were abusive, intimidating or threatening. The father agreed he might have been the cause of Ms G to cease providing counselling services to C.

5. The father’s evidence is to be contrasted with that of Ms G. Ms G gave her evidence in a very impressive manner and I accept her recollection (supported by contemporaneous notes). Ms G ceased to be C’s counsellor after two altercations with the father on the telephone. She gave an important insight into how intimidating the father can be. She made a contemporaneous record of the conversation (exhibit 13). I am satisfied that on 5 June 2013 the father was verbally aggressive to Ms G. On 4 July 2013, he said to her in a raised voice “how dare you tell me what to do”. He accused Ms G of lying about an appointment time. He spoke in a threatening tone including at the end of the conversation a threat “I’ll take your child off you – see how you like it.” Ms G had recently returned from maternity leave and was the mother of an infant. I find the father’s threat was one of particular menace and the father knew that when he made the threat. The father subsequently wrote a letter to Ms G apologising for his behaviour. The father attempted to justify his behaviour by indicating he was frustrated by the fact that he felt he was being excluded from the counselling process. It is clear from Ms G’s evidence that he was not being excluded and in fact during the very conversation in which he was so aggressive to her, she had offered him an opportunity to be part of the process.

6. The father gave conflicting evidence about his observations relating to F reaching puberty. It was disingenuous of the father in his evidence to initially assert that he did not know when F had reached puberty.

7. Initially in his oral evidence the father said that he had stopped tickling F after the mother had approached him about it. This evidence was inconsistent with his further evidence which indicated that he did not stop this behaviour after that warning. 

8. The father gave evidence that the admission he made to the police on 4 November 2011 (referred to below) was inaccurate and brought about by his emotional state and was not the truth. It is inherently unlikely and I do not accept his evidence that that is the case. As I observe elsewhere, the father, as he was entitled to do, chose not to give evidence at his criminal trial. The Magistrate was unable to compare the respective versions of the parties. Having had that opportunity, I find that the mother’s evidence about the admissions made by the father on the night the allegations of sexual abuse were made in May/June 2009 to be a more likely truthful version of what happened than the father’s version.

9. The father told the family consultant that whilst he became aware that an allegation had been made to other people prior to the separation, he had not become aware of the serious allegation against him until after separation. This was not true. The father was aware that the allegations made on the night in May/June 2009 were serious allegations of sexual abuse, and in oral evidence the father conceded that was so.

Mother

1. The mother generally gave her evidence in a forthright and straightforward manner but I did not accept her evidence in relation to one matter upon which she was challenged. The mother said that she had not organised a birthday party for the father in 2009. In her oral evidence, the mother asserted that the father’s family organised the birthday party and that she “assisted”. The mother in cross examination was taken to an email that she had written to one of the father’s sisters on 16 October 2009 where she indicated that the birthday party would be at her home. It was in the following terms (exhibit 9):

   ...Next Saturday I thought everyone could come at 1pm for lunch, we will have a barbecue and salads and his cake. He is happy with that, he thought I was planning on asking people from his work etc but I wasn’t so he is happy for all his family to come for lunch etc ... So if you can let people know 1ish that would be great...

2. Although the mother asked the father’s sister to organise all of the members of the father’s family who would be coming to the event, I do not accept the mother’s assertion that she did not organise the birthday party as truthful.

Conclusion in respect of the evidence given by the mother and father

1. Unless I indicate otherwise, if there is a contradiction in the evidence of the father and mother, I prefer the version given by the mother.

Father’s witnesses

1. Ms H, the father’s sister, gave evidence about the incident on 28 October 2011. Ms H initially and somewhat curiously, denied she had been abusive, but when pressed in cross examination Ms H conceded that she and the mother were both being abusive. 

2. I am not confident in relying upon Ms H’s account of what happened on that day.

Mother’s witnesses

1. I thought all of the witnesses called in the mother’s case were giving their recollections honestly. In particular, Mrs J made significant concessions against her interest and I accept her version that the father deliberately approached her at the swings.

DETAILED CHRONOLOGY

1. The father was born in 1969 and is aged 44.

2. The mother was born in 1970 and is aged 43.

3. The mother’s child F was born in 1996. She is currently aged 18.

4. The parties married in 2003. So far as I am aware, they did not live together for any significant period before the marriage.

5. The parties’ child B was born in 2003. He is aged 10.

6. Between April and November 2006, the father lost about $33,000 in gambling activities.

7. The parties’ child C was born in 2006. She is aged 7.

8. In 2009, F, then aged 13, began stealing phone credit from the parties’ mobile phones, as well as the maternal grandmother’s mobile phone.

9. Around May or June 2009, the mother found child pornography on a computer in their home. She confronted the father who denied that he had accessed that pornography. She then confronted F who initially denied that she was responsible but then conceded that she had accessed the pornography. She said to her mother at that time that her step-father had inappropriately touched her and kissed her. The mother confronted the father in F’s presence about the allegation. The father apologised to F. The mother took that apology as an admission of guilt by the father. The father asserts that he was only apologising for touching F during horseplay in a way that made her feel uncomfortable.

10. The father’s sister telephoned the mother and said the father had arrived at her house crying and saying he could no longer go to work because he was having a nervous breakdown from work related stress.

11. On telling the paternal grandmother about the father’s touching of F and his serious gambling problem, she alleged the paternal grandmother said she could see it coming because of the way F dressed. At the same time, the paternal grandmother denied the father had a gambling problem.

12. The father went to a general practitioner and received medication and sick leave certificates together with a referral to a counsellor.

13. A few weeks later the father went to a meeting with his bosses from K Pty Ltd. The mother thought the purpose of the meeting was to discuss his future at K Pty Ltd. The father did not return to work after that meeting. The father was depressed at this time. 

14. At about the time the father ceased to go to work the mother took on a second job as a cleaner which took her away from the home four hours a night. Her motivation for doing so was that she had formed the view that the father may not return to work and that there was a likelihood that her relationship with the father would end. There were significant credit card debts and pressures put upon the family finances as a result of the father continuing to gamble.

15. The mother organised a birthday party for the father with his family in October 2009. 

16. The parties separated on 14 June 2010.

17. On 22 June 2010, the mother went to the police in relation to the allegations F had made in May or June 2009 about her step father sexually abusing her.

18. On 23 June 2010, the father attended an interview with the police.

19. On 9 September 2010, the mother’s solicitor wrote to the father confirming the agreed parenting arrangements, that the children would spend six nights a fortnight with the father.

20. On 28 October 2011, the father had an altercation with the mother and the mother’s new partner at their home. The father was charged with an assault on the mother. On 10 May 2012, the father was found guilty of common assault on the mother. He was not convicted, but was placed on a good behaviour bond for 12 months. This incident was the subject of some focus during oral evidence.

21. On 24 April 2012, the father was charged with indecent assault of F. From that time, the mother insisted the father’s time with the children be supervised.

22. On 25, 27 February & 8 March 2013, the father’s criminal trial in relation to the allegation he had sexually abused F was heard in the Magistrates Court. On 21 March 2013, Magistrate Webster found the father not guilty saying “I have no confidence in the evidence of the prosecution and I’m not satisfied beyond reasonable doubt”.

23. On 5 June 2013 the father was verbally aggressive to Ms G (C’s then counsellor).

24. On 4 July 2013 the father made a serious threat to Ms G who then ceased to be C’s counsellor.

25. The parties and the Independent Children's Lawyer participated in a conference. The parties reached agreement as to a parenting arrangement on 10 September 2013 and signed a hand written document on this date. A typed document was subsequently signed on 16 September 2013.

26. Between 12 September 2013 and 16 September 2013, C commenced spending unsupervised overnight time with the father and B commenced spending additional weekday time with the father in accordance with the parties’ agreement.

27. On 16 September 2013, the parties appeared before Benjamin J. The intention initially was that orders be made by consent finalising the parenting proceedings. Upon inquiry, Benjamin J was not satisfied that the mother wanted the orders made. He declined to make the consent orders. The matter was set down for a hearing where allegations made in this case would be fully ventilated. From 16 September 2013, the mother required the father’s time to be supervised and withdrew her agreement to C spending overnight time with the father and B spending additional weekday time with the father.

28. On 11 October 2013, C had an appointment for counselling at L Centre. She was to be taken to the appointment by her father. The appointment was cancelled without the father’s knowledge.

29. On 23 October 2013, the husband was to collect C from her counselling appointment at L Centre. C’s counselling appointment was cancelled without the father’s knowledge.

MAJOR ISSUES

Whether there is an unacceptable risk that the father inappropriately sexually abused F

Legal principles

1. In M & M (1988) FLC 91-979, the High Court said at pages 77,080 – 77,081:

   21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   22. 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] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   24. 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 assessing 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. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

1. Counsel for the father referred to a paper written by the Honourable John Fogarty. That paper was referred to in Johnson & Page (2007) FLC 93-344 where the Full Court endorsed a list of principles enunciated by the Honourable John Fogarty. The Full Court said at [68]:

   68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:

   1 The decisive issue is and always remains the best interests of that child.

   All other issues are subservient.

   2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

   3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

   4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

   5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

   6 The onus of proof in reaching that conclusion is the ordinary civil standard.

   7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

   and thereafter expanded some points contained in the summary.

   69.Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:

   Section 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 that the 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.

   70.We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

   “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”

   There are, however, circumstances in which generaMstions about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [footnotes omitted]

   Although determined prior to the introduction of the Evidence Act the principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)

   71.We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68).  We assume point seven of that summary is directed to the requisite standard of proof.  We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).

   72.We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.

   73.We note that the trial Judge in paragraph 122 of his reasons referred to s 140 (2)(a)–(c), not to Briginshaw. We are satisfied in that paragraph of his reasons his Honour was summarising, in a general way, the principles set out in M and M and the standard of proof relevant to a positive finding of sexual abuse.

2. In Slater & Light (2013) 48 Fam LR 573 a subsequent Full Court referred to what was said in Johnson & Page with approval.

The allegations

1. Paragraph 14 of the family report dated 25 September 2012 (“the first family report”) conveniently sets out the facts asserted that supported four counts of indecent assault which were brought against the father and of which the father was acquitted:

   F made a statement to police on 08/11/11, summarised in the ‘Facts for the Prosecutor’ as follows:

   ·Between 01/11/08 and 30/01/09 F was sitting on recliner couch watching a movie. Mr Benton ‘came and sat next to her then somehow had her lying across the couch with her arms held above her head and his knees pinning her legs down as he was trying to take the top off. She screamed at him to stop and was trying to hit and scratch him. He then stopped.’

   ·Between 31/01/09 and 01/04/09 – ‘there was an occasion after she turned 13 years of age when she and her mother went to the [shopping centre] and bought a white cube for her bedroom. [Mr Benton] was putting it together in her room and she was laying on the bed. He came and laid on top of her and tried to pull her top off and placed his hand on her breast over her clothes. Her mother came down the stairs and he said they were just mucking around’.

   ·Between 01/11/08 and 01/07/09 – ‘[F] was in her bedroom with her door locked. [Mr Benton] came down the stairs and she heard him trying to open the door then jiggling the lock and he came in. She got off her bed and was yelling at him. He jumped over the bed and pinned her down. He pulled her top and bra off and was squeezing and kissing her breasts and pushing his groin against her vagina area. She is unsure how that incident stopped’.

   ·Between 31/01/09 and 01/07/09 – ‘there was another incident when he entered her room using the butter knife to unlock the door, pulled her top and bra up to her neck and started kissing and fondling her breasts. She remembers him placing the butter knife on the white cube’.

The inconsistencies

1. The inconsistencies identified in the prosecution’s case against the father and inconsistencies in the mother’s case upon which the father seeks to rely are, in the main, conveniently summarised in a document annexed to the case outline by the Independent Children's Lawyer. That document raises some inconsistencies not raised by the Magistrate and excludes other inconsistencies that the Magistrate raised which are of no consequence:

Allegation

Issues arising

1.    The recliner incident

Nov 08 – Jan 09

Father alleged to have pinned [F] down and attempted to remove her top

p. 6 Record of interview

p. 12 Transcript of case

This incident was not included by [F] when she initially wrote down her recollections of what the Father did and gave it to her Mother.

At trial she had a clear memory of him “brushing” her breasts but in her Record of Interview, said he did not touch her anywhere.

2.   the white cube incident

Jan – April 09

p. 12 Record of Interview

p. 17 Transcript of case

Father alleged to have pinned her on bed, tried to pull her top off, placed hand on her breast. [F] gives Father black eye.

[F] told the Court that his acts “must have been intentional” as he squeezed her breasts (20) but later said (at 21) that his hand could have accidentally slipped and it could have been an accident. Later she said it was not an accident.

[F] told her Mother “nothing” was going on.

[F] told her mother she hit him with a ruler instead of her elbow.

In her written notes [F] failed to mention that on this occasion he squeezed her breasts. In cross-examination she said she cannot recall either way.

The vacuum cleaner

In her written notes [F] said she would “hit him with the vacuum”. In her oral evidence she conceded she never did (at 27). In her record of interview she said she once threatened him with it (at 21)

3.   the Butter Knife incident

Father opens her locked door with butter knife, pins her to the bed and kisses her breasts

p. 14 Record of Interview

p. 30 Transcript of case

[F’s] written notes did not mention being kissed on the breasts (31 Transcript) even though it is the most serious allegation. The Magistrate found her versions of events changed over the years (at 199). Also she did not mention that the butter knife was used to enter her room (at 43).

[F] had told Grandmother that Father was using the knife to unlock her door not to molest her but to see what she was doing. This was consistent with what the Father said (p. 49 transcript).

The Magistrate found it “puzzling” that she did not disclose to the grandmother (at 200 Transcript).

Observing the porn sites

[F] agreed that she went from being in quite a bit of strife to no longer in trouble once she disclosed the abuse (p. 57 Transcript)

The Father’s “admission”

In her record of interview she said she recalled the Father admitting the abuse but could not remember the words. Under cross-examination she said she recalled him saying sorry (p. 61 Transcript).

Talking to the Mother in the car the next day

p. 64 and 116 Transcript of case

[F] gave evidence that she gave her Mother no more information or particulars of the abuse the following day when talking in the car (at 64). The Mother said she gave more explicit particulars (at 116).

[F’s] view of Father

[F] denied to the Court that she was frightened of the Father (at 67).

[F’s] concern for [C]

[F] told police in her interview that she did not want the Father around [C] and that was one reason for coming forward. (at p. 3 record of interview). In her evidence Mother said [F] was concerned for [C] (at 135 Transcript). However when [F] was asked if she was suggesting that the Father would sexually assault [C] or [B] she said “Oh, no” (p. 69 and 71 Transcript)

The confrontation with the Father

[F] said that she told her Mother that the Father had been lifting her top up (p. 58 Transcript) and that is all she disclosed. The Mother said that [F] disclosed that he was touching her in the wrong places and trying to kiss her” (p. 87 Transcript)

Mother’s actions post-“admission”

p. 109 transcript

The Mother conceded that after the alleged admissions she

(a)  Remained sleeping in the same bed as the Father;

(b)  Went on holiday with the Father as a family;

(c)  Went on an interstate tennis holiday with the family;

(d)  Did not strengthen or change the lock on [F’s] door;

(e)  Got an evening job so the Father had to care for the family unsupervised;

(f)   Organised a 40^th birthday for the Father;

(g)  Only facilitated [F’s] complain [sic] in late 2011, shortly after the affray outside her home.

[F’s] credit

The Mother said [F] lied about taking credit from people’s phones until confronted with the evidence and that even after confronted, continued to take credit on multiple occasions. (p. 143). She also did not confess to accessing porn sites until confronted by the evidence. The Magistrate found she was “not a person known for her honesty and has indicated she will lie when it suits her”. (p. 199 Transcript)

The father’s criminal trial

1. The full transcript of the father’s criminal trial and the Magistrate’s reasons for the father’s acquittal are contained in Exhibit 3. At the trial, F was cross examined in front of her stepfather. The mother and the maternal grandmother gave evidence. The father chose not to give evidence but his police statement was tendered by the prosecution. As indicated the father’s trial took place on 25, 27 February 2013 and 8 March 2013.

2. On 21 March 2013, the Magistrate provided reasons for doubting the veracity of the allegations and, as already mentioned, concluded:

   So for all those reasons I have no confidence in the evidence of the Prosecution and I am not satisfied beyond reasonable doubt that the father had sexually abused [F].

3. F was 13 at the time she made the allegations. She was giving evidence four years later in what for her must have been very difficult circumstances. As I noted during the hearing, when F was first asked about what she said on the night, the answer that she started to give at the criminal trial was interrupted by counsel for the father.

The father’s knowledge about when F reached puberty

1. The father was asked how old F was when concerns about his behaviour with her were raised. The father said 12 or 13. The father was asked whether that was after F reached puberty. The father was reluctant to concede he knew when F reached puberty. He initially said “I don’t know. Yes I gather so.” He later said he “didn’t take any notice” and “wouldn’t be able to tell you an age” that F started developing breasts. He eventually conceded that by 13 years of age, F had well developed breasts.

2. The mother’s evidence is that F’s body significantly developed during 2008 when she commenced to wear a bra and she confirmed that by the time of the alleged incidents, F was well developed. Photographs annexed to the father’s affidavit are corroborative of that development. As I have already said, it was disingenuous of the father in his evidence to initially assert that he did not know when F had reached puberty. 

The prior warnings

1. The father conceded that prior to the dramatic events of the night in May/June 2009, the mother had warned him on a number of occasions about F’s developing body and that F was uncomfortable with his physical involvement with her. As already mentioned, initially in his oral evidence the father said that he had stopped tickling F after the mother had approached him about it. This evidence was inconsistent with his further evidence which indicated that he did not modify his behaviour in that way. He indicated F invited further physical contact. The father conceded that even after the night in May/June 2009, when the mother had demanded that he no longer physically touched F, that he had done so on probably about three further occasions. 

The day the white cube was purchased

1. As already indicated in the early part of 2009 there was an occasion after F turned 13 years of age when she and her mother went to the shopping centre and bought a white cube for her bedroom. The father put it together while F was laying on her bed. F says in her statement to the police that the father came and laid on top of her and tried to pull her top off and placed his hand on her breast over her clothes. Her mother came down the stairs and yelled at him. The father said they were just mucking around and he was only tickling F and having a pillow fight with her.

The father’s accessing F’s locked room

1. F says that on at least two occasions she was in her bedroom with her door locked when her step-father came down the stairs to her room when the mother was out. She heard him trying to open the door then jiggling the lock and he came in. She got off her bed and was yelling at him. He jumped over the bed and pinned her down. He pulled her top and bra off and was squeezing and kissing her breasts and pushing his groin against her vagina area. She is unsure how that incident stopped. There was another incident when she says he entered her room using a butter knife to unlock the door, pulled her top and bra up to her neck and started kissing and fondling her breasts.

2. The father admitted he opened F’s bedroom door with a butter knife. The father asserted this was a practice that initially took place with the mother. The mother denies she was with the father on any occasion when he did this. I accept her evidence about that. The father agrees he had opened F’s door with a knife on two occasions without the mother present. The father asserted that he only did this after he had knocked and F had not responded. I have considerable uneasiness about the father’s explanation that he broke into F’s locked room in this way simply to check that she was not misusing her mobile phone.

The father’s bruised eye

1. The father agreed that on one occasion when he was in F’s bedroom he received a bruise to an eye as a result of F physically coming in contact with him. He said it was an incident during horseplay. F says she was attempting to stop him touching her. The mother places this incident at February 2009. In his original statement to the police, the father indicated that he believed it was in November 2009 but conceded in cross examination that the occasion when he received an injury to his eye in F’s room was more probably in February 2009.

The night in May/June 2009 when allegations were put to the father

1. On the night in May/June 2009 when F admitted that she had accessed pornography on a home computer, she explained to her mother that she was trying to find out what was going to happen to her as her step-father had been fondling her. F told her mother that her step-father had lifted her shirt and inappropriately touched her and kissed her. The mother says she confronted the father about F’s allegations initially in F’s presence. The mother put to the father that he had lifted F’s shirt and inappropriately touched her and kissed F. She says the father was silent, and would not look at her. She asserts she “walked right up to him and made him look at [her] and asked him again if it had happened.” She says he said to her “Yes, I am so sorry” and burst into tears. The mother has no doubt that the father clearly understood what she had said to him. She says he said to her “I should go to the police station and hand myself in.” The mother said that the father offered an apology to F and then she asked F to leave the room.

2. In his initial interview with the Family Consultant, the father indicated that he didn’t understand that serious allegations had been made in relation to sexual interference with F until after the separation. At no time did he indicate to the Family Consultant that he had offered an apology to F. I find that the father knew, from that night in May/June 2009 when he was first confronted by the allegation of being sexually inappropriate with F, that serious allegations were being made against him and I do not accept the assertion originally made by the father that it wasn’t until after separation that he became aware that the mother had made a serious allegation against him. In any event, the father did not ultimately maintain that position during his oral evidence at the hearing.

This order for sole parental responsibility does not give the Mother sole responsibility as to questions of major long term issues about the children’s names and/or change to the children’s living arrangements to outside the Commonwealth of Australia, without the consent of both parents in writing or an order of a court exercising jurisdiction under the Family Law Act.

1. No unacceptable risk

If the court makes is [sic] no unacceptable risk finding about either F or C then the consent orders proposed in September (Exhibit 10) should be made (omitting proposed order 15).

If, however, the Court finds that such a large degree of shared care is not in the best interests of the children because of the conflict (despite there being no unacceptable risk of sexual abuse) then the alternative is that B’s current arrangements be implemented for both children, that is a more modest shared care arrangement.

In either case, nothing ought be implemented that is different to what is currently occurring for each child until the start of the school year. That will give C time to work with her counsellor towards these arrangements and the children can finish school without having a new arrangement being implemented. C’s time will need a gradual lead-in as proposed for the more extended version at Exhibit 10. [emphasis in original]

1. Unacceptable risk

In these circumstances, the orders sought are as follows:

1. The mother shall have parental responsibility on the terms previously advised.

2. The children shall live with the mother.

3. The children shall spend time with the father in school term time each Saturday from 9.00am until 5.00pm on the following conditions:

   3.1.That changeover occur at the Hobart Children’s Contact Centre and if the centre is not available at times within 35 minutes of the commencement and conclusion times, at McDonalds Restaurant Suburb D or such other location agreed between the parties in writing.

   3.2.The mother is at liberty to nominate up to four Saturdays per year (but not more than two consecutively) on which the father’s time shall not take place, such nomination to be made in writing 3 weeks in advance.

4. The children shall spend time with the father each Christmas from 9am until 1pm on Christmas Day or from 9am until 6pm on Boxing Day, at his election to be made in writing one month prior to each Christmas Eve and failing election, time shall occur on the Boxing Day.

5. That not before the end of second term holidays in 2014 the children spend time with the father as follows:

   5.1.For seven days from the first Saturday in two of the three mid-term holidays at 10.00am, with the father to nominate in writing which holidays he intends to spend time at least one calendar month in advance;

   5.2.For seven days from 10.00am on 20 January in each year or such other seven day period as is agreed in writing between the parties;

   On the conditions that:

   5.3.The children shall not share a bedroom, bed or other sleeping space with the father;

   5.4.There will be another adult present to whom the father has given a copy of these orders.

   Notation: this order imposes no obligation on third parties.

SCHEDULE 2 – DOCUMENTS RELIED UPON

1. The applicant father relies on the following:

   1.1.Amended Initiating Application filed 4 September 2013

   1.2.His affidavit sworn 8 November 2013

   1.3.His affidavit sworn 30 August 2013

   1.4.Affidavit of Ms H sworn 30 August 2013

   1.5.Transcript of Proceedings in the Magistrates Court of Tasmania filed 20 August 2013 (exhibit 3)

   1.6.Hobart Children’s Contact Service Report filed 27 August 2013

2. The respondent mother relies on the following:

   2.1.Amended Response filed 31 August 2013 (but this has been significantly amended by orders sought in her case outline)

   2.2.Notice of Child Abuse filed 3 July 2012

   2.3.Her affidavit sworn 25 September 2013

   2.4.Affidavit of Ms J sworn 25 September 2013

   2.5.Affidavit of Ms U sworn 25 September 2013

   2.6.Affidavit of Mr M sworn 26 September 2013

3. The Independent Children’s Lawyer relies on the following:

   3.1.Family Report by dated 25 September 2012, and an updated report dated 3 September 2013

   3.2.Tender bundle (exhibit 2)

   3.3.Affidavit of Dr V sworn 29 August 2013

   3.4.Affidavit of Mr W sworn 30 July 2013

   3.5.Affidavit of Ms G sworn 24 June 2013

   3.6.Affidavit of Ms S sworn 20 November 2013

4. A number of documents were tendered and made exhibits during the hearing.