BENTON & FFRENCH

FAMILY COURT OF AUSTRALIA

BENTON & FFRENCH

[2014] FamCA 1239

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply – With whom the children live – Where at the time of trial the daughter was living with the mother and the son was living with the father – Risk – Where there were allegations of sexual abuse of the daughter by the father – Where there were allegations of physical abuse of the son – Where it is ordered that both children live with the father – Where it is ordered that the children spend time with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60DAB, 61DA, 65AA, 65D, 65DAB.

Cox & Pedrana [2013] FamCAFC 48.
M v M (1988) 166 CLR 69.
McCall & Clark (2009) FLC 93-405.

APPLICANT:

Ms Benton

RESPONDENT:

Mr Ffrench

INDEPENDENT CHILDREN’S LAWYER:

Suthers Lawyers

FILE NUMBER:

BRC

660

2007

DATE DELIVERED:

Orders made 23 May 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

19, 20, 21 and 22 August 2013

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Suthers Lawyers

Orders

IT IS ORDERED ON A FINAL BASIS THAT

All previous parenting Orders are discharged.
The child K, born … 2003, live with the father.
The father spend time with the child S, born … 2000, from after school until 7.00 pm on Tuesday, 27 May 2014 and Thursday, 29 May 2014 with the father to collect her from school at the commencement of this time and return her to the mother’s residence at the conclusion of time.
The child S, born … 2000, live with the father from 3.00 pm Saturday, 31 May 2014.
The mother do all things necessary to ensure that the child S, born … 2000, is able to take her personal possessions, clothing, school uniforms, school books, and any educational items with her when she moves to live with the father.
The father have sole parental responsibility for all major long term issues relating to the children.
The father consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:-
(a) he shall inform the mother about the decision to be made;
(b)he shall consult with the mother to ascertain if there are terms upon which they agree; and
(c) he shall consider the mother’s views when coming to a decision.
Commencing Monday, 9 June 2014, the children spend time with the mother at all reasonable times as agreed between the parties, but, failing agreement:
(a)from after school, or 3.00 pm, until 6.00 pm each Monday and Thursday; and
(b)for a period of no less than five (5) hours each alternate Sunday, with the first occasion to occur on 21 June 2014, at times to be agreed between the parties but, failing agreement: from 10.00 am until 2.00 pm; and
(c)from after school, or 3.00 pm, until 6.00 pm on each of the children’s birthdays each year; and
(d)from after school, or 3.00 pm, until 6.00 pm on the mother’s birthday each year; and
(e)from 9.00 am until 1.00 pm on Christmas Day in even numbered years and from 1.00 pm until 5.00 pm on Christmas Day in odd numbered years; and
(f)for a period of no less than five (5) hours on Mother’s Day at times to be agreed between the parties but, failing agreement: from 10.00 am until 2.00 pm.
For the purpose of facilitating the time the children are to spend with the mother:
(a)on school days: the mother shall collect the children from school at the commencement of the time and shall deliver the children to the front gate of the father’s home at the conclusion of the time; and
(b)on non-school days: the mother shall collect the children from the front gate of the father’s home at the commencement of time and the father shall collect the children from the front gate of the mother’s home at the conclusion of the time.
During her time with the children, the mother shall be restrained and an injunction shall issue restraining her from bringing the children into any contact at all with Mr C.
Neither party shall approach the other during changeovers and the father shall take all reasonable steps to ensure that his partner, Ms G, not approach the mother during changeovers.
Each party shall keep the other informed of any change of contact phone number within twenty-four (24) hours of making such a change.
The mother and father shall:-
(a)keep the other parent informed at all times of their residential address and landline contact telephone number;
(b)keep the other parent informed of the names and addresses of any medical or other health practitioner who treats the children and authorise those practitioners provide to the other parent with information that they are lawfully able to provide about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.
By this Order, any medical practitioner upon whom the children consult is hereby authorised to provide each parent with information about the children’s medical treatment.
By this Order, any school attended by the children is hereby authorised to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).
During the time the children are with either parent, that parent shall:-
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(d)allow the children to communicate with the parent with whom they are not then living or spending time by telephone at all reasonable times;
(e)not drive with the children in their care whilst under the influence of alcohol;
(f)not consume alcohol to excess or illicit drugs or remain in the company of persons who are consuming illicit drugs.
The father be restrained, and an injunction issue restraining him, in the exercise of his sole parental responsibility, from taking any steps to prevent the mother attending at the children’s school functions.
The mother be restrained, and an injunction issue preventing the mother from presenting the children to the Queensland Police or the Department of Communities (Child Safety) without first advising the Independent Children’s Lawyer of the nature of the complaint to be made, whilst an Independent Children’s Lawyer remains appointed in this matter.
The Independent Children’s Lawyer is discharged on 23 July 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benton & Ffrench 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 BRISBANE

FILE NUMBER: BRC 660 of 2007

Ms Benton

Applicant

And

Mr Ffrench

Respondent

REASONS FOR JUDGMENT

These proceedings concern S Ffrench, born in 2000, and K Ffrench, born in 2003 (“the children”).
The parties began their relationship in late 1993 and separated toward the end of 2006. At this time, S was about six years of age and K was about three years of age.
Both parties have re-partnered: the mother with Mr C for periods of time since about 2007 and the father with Ms G since about 2009. Mr C has been convicted of assaulting the mother as has Ms G. All adults have at least one conviction for driving under the influence of alcohol.
The parties live in relatively close proximity to each other.

Previous parenting arrangements and Orders

On 26 February 2007, Federal Magistrate Baumann (as his Honour then was) made interim Orders which provided, amongst other things, that:
a)the children live with the mother;
b)the parents have equal shared parental responsibility for the children;
c)the children spend time with the father at least:
i)each alternate weekend from 9.00 am Saturday to 5.00 pm Saturday;
ii)each Sunday from 9.00 am to 5.00 pm;
iii)each Wednesday from after school until 7.00 pm,
d)the children and mother continue to reside in the former family home at R Street, Town N;
e)the mother arrange that either her stepmother or father or another female adult known to the children live in the home each evening the children were there with her;
f)S recommence attending at the school she had previously attended;
g)the mother’s current partner “and any future partner” not remain overnight in the mother’s home.
On 19 July 2007, the Federal Magistrates Court made an Order, by consent, (the July 2007 Order) which discharged the February 2007 Order.
The July 2007 Order provided that:
a)the children live with the mother;
b)the parties have equal shared parental responsibility for the children;
c)the parties complete a parenting course;
d)the children spend time with their father:
i)each alternate weekend from after school Friday to 4.00 pm Sunday;
ii)from after school each Wednesday until 7.00 pm Wednesday; and
iii)for half of the gazetted school holidays,
e)the father collect and return the children at the front gate of the mother’s residence at the commencement and conclusion of time.
The parties implemented the July 2007 Order.
On about 26 January 2010, the parties were involved in an unedifying incident at changeover. What started with a confrontational verbal exchange descended into an incident where the mother struck the windscreen of the father’s car with an umbrella, attempted to close the car door – which hit his leg a number of times – hit the bonnet of the car and, when he got out of the car to confront her, squeezed his cheeks together. The father asserted assault arising out of this event.[1]
[1] Exhibit 23r.
Despite this confrontation – but an example of the manner in which the parties have interacted since their separation – the parties continued to implement the July 2007 Order.
In March 2010, Mr C was imprisoned after he assaulted the mother. He later told Mr B (in February 2012) that, at the time he assaulted the mother, he had been prescribed inappropriate medication which adversely affected his behaviour. He said, because he was on this medication, his behaviour in Court resulted in him being held in custody for 227 days. He told Mr B that, when his medication was adjusted and he was adequately represented, he was fined $240.00. He also told Mr B that, after this event, he remained on Endep, which has assisted him.
There was no way of testing these assertions because Mr C did not give evidence in the proceeding and, absent this opportunity, I approach his recorded explanation to Mr B with significant caution and scepticism.
The mother accepted she could have reported she was so scared of Mr C at this time that she thought he might kill her and the children when he was out of jail. Despite this, when Mr C was released from custody, she permitted him to return to live at her property. At trial, the mother said she was not scared of Mr C at all and, in fact, relied on him to support and protect her.
Despite the events of March 2010, the parties continued to implement the terms of the July 2007 Order. The mother said, during cross-examination, that the child S did not say at this stage that she was frightened of visiting her father.
On 6 February 2011, the children climbed out of a window at the mother’s home and ran away to live with the father. The father says they told him Mr C had threatened to cut the heads off their dolls and teddy bears. The mother explained this was a joke.
The father also said the children spoke of concerns about alleged fighting and drinking in the mother’s household: they told him the mother and Mr C were constantly drunk and they had seen Mr C being violent towards their mother. Given my concerns about the mother’s veracity generally, her ongoing willingness to defend Mr C against any assertion of inappropriate behaviour toward her, the documented history of Protection Orders and Mr C’s breach of them and the absence of Mr C himself to give evidence about these matters, I consider it highly likely that the children reported accurately matters to which they had been exposed.
The father took the children back to the mother’s house the following morning to collect their school shoes. He told police the mother was highly intoxicated and unable to stand up. Police attended at the mother’s home on 8 February 2011.[2]
[2] Exhibit 23q.
On 11 May 2011, Magistrate Batts suspended the operation of the July 2007 Order. She ordered (the May 2011 Order) that the children spend time:
a)with the mother every weekend from after school Friday to the commencement of school on Monday; and
b)with the father at all other times.
The proceedings were transferred to this Court.
In September 2011, Ms D, Family Consultant, interviewed the parties and the children. She prepared a Child and Parents Issues Assessment, dated 19 September 2011.
At that time, the mother proposed the children return to her care and spend time with the father each alternate weekend and for half of the gazetted school holiday periods. The father proposed the children live with him and spend time with the mother each Wednesday night, each alternate weekend and for half of the school holidays. He also proposed a number of conditions attach to the children’s time with the mother: namely, that Mr C not be present and the mother refrain from consuming alcohol. In the event that these provisos were not met, he proposed the children’s time with the mother be supervised.
On 6 December 2011, the Principal Registrar varied the May 2011 Order and provided that:
a)the children spend the first week, and each alternate week, of the 2011 Christmas school holiday period with the mother; and
b)the mother not leave the children in the sole care of Mr C; and
c)each parent be restrained from using any illicit drugs or consuming alcohol to excess whilst the children were in their care.
On 1 January 2012, the child K left the mother’s home and refused to return there. The father contacted the police and the Department of Child Safety (the Department) and told them about K’s refusal to attend at the mother’s home.
On 27 January 2012, a police officer spoke with K at the father’s home and told him that he would not be forced to go anywhere he did not feel safe. The child remained in the father’s care. After this, the mother initially withheld S and took her to see the Independent Children’s Lawyer. S returned to the father’s care three days late.
On 7 February 2012, the Principal Registrar ordered that:
a)Mr C be restrained from physically disciplining K or directing any verbal abuse toward him; and
b)K spend the first week of the Easter school holidays with the mother;
c)the mother file and serve an affidavit by Mr C.
In order to prepare a Family Report (dated 10 April 2012), Mr B, a social worker, interviewed the parties in February 2012. At that time, the mother proposed the children return to live primarily with her; the father proposed the children live predominantly with him and spend every second weekend and Wednesday nights after school to dinner with the mother on the proviso that they not be left alone with Mr C. The father noted K was “currently” refusing to spend time at the mother’s home as long as Mr C was there.
Mr B’s report was filed on 12 April 2012. It recommended that, for a defined period, the child S live with the mother and participate in counselling.
On 19 June 2012, the Principal Registrar made a further interim Order which provided that:
a)S live with the mother;
b)K live with the father;
c)S have explorative therapy and counselling with X Service or any other service recommended by the Independent Children’s Lawyer;
d)the mother was restrained from:
i)bringing K into Mr C’s presence;
ii)leaving S in Mr C’s presence or allowing him to reside in the same household as S.
At the time this Order was made, Mr C was living in a van parked on the mother’s property.
On 26 June 2012, the Principal Registrar suspended S’s time with the father for six months pending her undertaking explorative therapy and counselling by X Service.
As at the date of trial:
a)The child K was living with the father and had not spent time, save for occasions when the mother attended at his school, with the mother since January 2012;
b)The child S was living with the mother and had not spent time with the father as ordered by the June 2012 Order.

General Assessment of some of the witnesses

The father is a person who is quick to anger. He has struggled to maintain control over his temper – when he fails to do so, he presents in an aggressive and angry manner which, on occasion, could easily present as threatening to other people. Despite these personality issues, I consider the father was essentially a truthful witness.
In contrast, for whatever reason, the mother did not impress as a credible witness – for example, her evidence changed to meet the deficiencies in her case when these were pointed out to her and she was unable to provide persuasive explanations for her failure to include, in affidavit material, details of a number of very serious allegations made against the father.
I accept the submission of Counsel for the Independent Children’s Lawyer that I should prefer the contents of documentary exhibits to the accounts given by the mother where these conflict. I also consider that, where evidence given by the mother and the father’s partner conflict, I prefer that given by the father’s partner. I accept the evidence given by Ms V generally and prefer it to that given by the mother where their evidence conflicts.
I accept the evidence given by the maternal grandmother where indicated in these Reasons, but also conclude it was attended by inconsistencies and influenced by her belief that the father had, in fact, sexually abused S.

Principles

These proceedings are proceedings seeking parenting orders in relation to children. Subject to s 61DA of the Family Law Act 1975 (Cth) (the Act) which obliges the Court to have regard to equal shared responsibility, and the considerations which then follow, I may make such parenting order as I think proper: s 65DAB of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act.
The paramount consideration when making parenting orders is the children’s best interests: s 60CA and s 65AA of the Act.

Parental Responsibility

When making a parenting order I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility (“the presumption”) for them: s 61DA of the Act.
The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4).
Section 61DA(2) of the Act provides that, if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of them or another child or family violence, the presumption does not apply.

There is a lengthy history of confrontation of both a verbal and physical nature between the parties. During their relationship, the father punched the mother in the face after she kicked him in the genitals. After their separation, the parties have, on occasion, engaged aggressively (both verbally and physically) at the children’s school, at changeovers and outside the Court itself. I am satisfied there are reasonable grounds to believe that they have engaged in family violence.
Consequently, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply - “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[3]
[3] Cox & Pedrana [2013] FamCAFC 48 at [19].
Even if the presumption applied, the lengthy acrimonious history between the parties is such that it is not in the children’s best interests for the parents to have equal shared parental responsibility for them: regard need only be had to Ms M’s Report (written after interviews conducted in April 2007) - “sadly, the parties have thus far been unable to foster functional communication…”.
The situation has clearly deteriorated over time. For example, in September 2011, Ms D reported that “both parents were very open about their hatred for the other, and have shared this with the children in some shape or form”. That they tussled over the children in front of the Court building on the day of the Ms D’s interviews is a clear demonstration that, even then, neither party was able to contain their mutual acrimony.
Given this type of behaviour, the allegations made by each of them about the other’s conduct and their clearly expressed contempt for each other - which was made clear when the mother said, during cross-examination, she hated the father and he hated her – it is inconceivable they would be able to reach decisions jointly about long term issues relating to the children.
I must determine that which is in the children’s best interests having regard to the considerations set out in s 60CC of the Act.

Benefit of a meaningful relationship with both parents

The Act does not define ‘meaningful relationship’ nor does it prescribe the criteria the Court should use to assess the parent’s involvement in the child’s life. In order to interpret the ‘benefit to a child of a meaningful relationship’[4] a ‘prospective approach’ should be taken.[5]
[4] Family Law Act 1975 (Cth) s 60CC(2)(a).
[5] McCall & Clark (2009) FLC 93-405.
Ms M said, in the April 2007 Family Report:
Sadly, the parties have thus far been unable to foster functional communication and positive interactions, failing to provide consistent levels of nurturance and discipline. This, in turn, may place the children at greater risk of a low sense of self, underdeveloped problem-solving skills or indeed aligning themselves with one parent against the other. This would have a negative flow on effect upon the children’s subsequent developmental stages.
Despite this clear admonition, neither parent has been capable of subjugating their personal dislike of, and acrimony toward, the other for the benefit of the children.
Whilst it may be open to conclude, from the history of the parties’ post- separation interactions in which the children have clearly been involved, that there may be a limited benefit to them of a “meaningful relationship” with both parents, there is no doubt that the children love each of their parents. Even with K’s concerns about Mr C’s behaviour toward him, he clearly loves the mother and wants a relationship with her. Even with the mother’s significant issues associated with her excessive consumption of alcohol, both children presented to Mr B in April 2012 as healthy, sturdy country children who enjoyed school and extra-curricular activities.

The need to protect the children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence

The parties have an extensive history with the Department: between August 2009 and October 2011, 21 intakes were noted: three general enquiries, 18 child concern reports and one investigation and assessment (neglect – unsubstantiated).[6]
[6] Exhibit 24a
The various contacts with the Department have related to consistent cross allegations the father sexually abused S (which, as at September 2011 had been reported 10 times) and about the mother’s alcohol abuse and the ongoing conflict between the parents about the children’s care arrangements.
In a summary, dated 15 February 2012, the Department noted the existence of a “significant pattern” of the parents accusing each other of harming the children. Departmental interaction with the parties resulted in an assessment that “neither parent presents as having insight into the impact on the children of their ongoing confliction relationship.”[7] Having observed the manner in which the parties display their intense dislike of each other, I am left in no doubt whatsoever about the validity of this assessment, which remains pertinent and is persuasive.
[7] Exhibit 24y
The Department expressed that “consideration” was given to the possibility the children were being emotionally harmed by the ongoing parental conflict and cross allegations. By the time the matter reached a final hearing, this seems highly likely to be a significant understatement of the likely impact on the children of exposure to the relentless conflict between their parents.
It is highly likely both parents have inflicted emotional harm on the children by exposing them to their negative views about – and hatred for – the other. This situation seems highly unlikely to change in the future.

The allegation that the child S has been sexually abused by the father

The resolution of an allegation of sexual abuse is “subservient and ancillary” to this Court’s determination of that parenting order which is in the children’s best interests.[8] However, a consideration of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting children from harm.[9]
[8] M v M (1988) 166 CLR 69.
[9] Section 60CC(2)(b)
It is clear that the Court is not compelled to make a positive determination about whether the father sexually abused S or not. There may, however, be circumstances in which a clear determination about such allegations is in the children’s best interests. Counsel for the Independent Children’s Lawyer submitted that, given the length of time over which, despite investigation, the allegations have continued to have been made – this is such a case.

The allegations

The mother has alleged S has been sexually abused by the father since separation. The father denies these allegations completely.
One of the difficulties associated with an assessment of the allegations raised by the mother can be seen from the contents of a Departmental Assessment and Outcome Summary (created in March 2010) which records that “mother is difficult to engage, and it is often apparent that she has little understanding or recollection of past conversations. During interview, her story changes, and she is unable to recall questions asked and answered at the beginning of the interview.”[10] I accept the tenor of the submissions made by Counsel for the Independent Children’s Lawyer that the mother’s evidence, in both affidavit material and orally, was inconsistent, changed as it went and lacked coherence and detail about events related to some of the allegations of sexual abuse.
[10] Exhibit 24p
The mother did not raise any concern that S had been sexually abused by the father since separation when she spoke with Ms M in April 2007. She explained, during her cross-examination, that, at that stage, she did not suspect the father of sexual abuse or inappropriate behaviour, was aware that he used to shower with both children and thought it was a “fatherly thing” to do. The mother did not tell Ms M about Mr C’s previous conviction for a sexual offence involving a child under 16 years of age: a matter about which she has been consistently reticent.
On 26 May 2008, the mother and Mr C wrote to the father to inform him of their intention to move to Perth, Adelaide, Darwin or Broome in July of that year. The correspondence contained the proposal that the children spend all of their school holiday periods with the father.[11] This proposal is inconsistent with the mother believing, at that time, that the father presented a risk to S.
[11] Exhibit 26.
On 23 July 2009, the mother reported the following concerns about S to the police: her personality had changed, her school results had deteriorated and her handwriting had worsened. She reported that, after spending time with the father, S came home with redness to her vagina. Medical advice suggested this may have occurred because of the type of toilet paper the child used. The mother told police she knew the father used to shower with the children.[12]
[12] Exhibit 23j.
S, then nearly nine years of age, was interviewed by police on 29 July 2009. She made no disclosures whatsoever. She said she showered alone or sometimes with K – the father was not present when she showered. Under direct questioning, she said “no-one” touched her vagina or breasts. Protective behaviours were explained to her.[13]
[13] Exhibit 23j.
On 5 October 2009, the mother contacted police to report that S had told Mr C the father had been “pulling his doodle, and placing it in her mouth and tasting white yucky stuff.”[14] Despite his obvious importance to her case, Mr C has not presented himself as a witness. The mother said, during cross-examination, that Mr C told her the child had said this to him and, after this, when she spoke with her, related the same comment to her.
[14] Exhibit 23k.
When spoken to by police, S said the father used to bathe with them but no longer did. She said she liked staying with him. She did not speak about any disclosures to Mr C and made no disclosures to police in open conversation. In direct questioning, S did not know what a “doodle” was. Further, when asked about “yucky stuff”, she interpreted the question as referring to food.[15]
[15] Exhibit 23k.
After S was interviewed, the police officer spoke to the mother and Mr C – they both said she “should know” what a doodle was. Clearly, neither accepted that nothing inappropriate had occurred between the father and S. Mr C told police he attempted to record the child when she made the “admissions” but could not get the tape to work.
Despite the outcome of police investigations, Mr C made a referral, on 10 December 2009, to X Service[16], a service which provides support to victims of sexual abuse. He nominated the father as the alleged perpetrator. Mr C said the child had told him and her mother a “detailed description of the father putting [his] penis in her mouth.” He also reported S was to spend time with the father for a three week holiday period commencing on 11 December 2009. He said she had been deteriorating in school and had lost interest in her horse and other things.
[16] Exhibit 1.
On 15 December 2009, the mother and Mr C had an intake session at X Service They reported S had alleged “one instance where the biological father put his penis in her mouth and white stuff came out”. The mother reported having first had ‘concerns’ when the child was six years of age: she alleged the father showered or bathed with the child and had touched her “down there”. It is, of course, notable that despite reportedly having these “concerns” when S was six years of age (in 2006), the mother agreed to the terms of the July 2007 Order which provided that both children spend time with the father after school during the week, each alternate weekend and for half of the school holidays. I am not persuaded the mother would have agreed to the children spending this time with the father if, at the time this Order was made, she genuinely believed that either of them were at risk in his care. I am further fortified in this conclusion by the fact that the mother did not raise these concerns with Ms M in April 2007.
The mother told X Service the child’s behaviour changed both before and after she spent time with the father: she described the child crying and being sad: she asserted she was not doing as well at school. The mother also said both children told her they did not want to see the father and she was worried the father was “shooting up again – and he is a pothead”. Again, whatever the position in relation to the father’s asserted drug use, the mother was aware of these matters when she agreed to the terms of the July 2007 Order.
The child S had her first counselling session with Ms U from X Service on 5 January 2010. On 6 January 2010, in response to a request made by X Service, the mother reported that, on one to three occasions per month, the child ‘talks about sexual acts’. This was the only behaviour of those outlined in the “Questions About Your Child’s Behaviour” booklet produced by X Service identified by the mother.
When Ms U spoke with the child at the mother’s house on 14 January 2010, she asked her about things she did not like about staying with her father. In response, S told Ms U about the things she liked: for example, going to the pool and playing with friends. When Ms U asked her again about things she did not like about staying with her father, the child “became hesitated” and said she did not like waiting at the fish and chip shop for food to be cooked. Ms U noted that, whilst the child preferred to stay with the mother, she did not state any substantial reasons why she did not want to stay with the father.
When she spoke with her at the mother’s home on 28 January 2010, Ms U asked S again why she disliked going to her father’s place. The child said she did not feel comfortable talking about that and had to go because of the Court Order. Ms U observed the child looking distressed. Ms U concluded, from this observation, that the child “showed signs of anger and sadness when mentioned about going to dad’s place.” In the context of the significant acrimony between the parties – even at that stage – this is hardly surprising. I note Ms U acknowledged, during her cross-examination, it was possible the child was distressed because she was caught in the middle of a Family Court dispute between the parties. It is, I think, hardly surprising S was reluctant to talk about her father whilst in her mother’s home.
When Ms U saw S at home in early February 2010, the child told her “Dad showered her alone in 2008-2009” (when she was eight). Ms U could not recall when, during the session, the child made this comment. Ms U noted the child told her she would “get in trouble” if she forgot to tell her; when asked what sort of trouble she might get into, S said she may get a smack. The child also told Ms U her father had stopped showering her and “has not hurt her”.
Ms U notified the Department. It was apparent from her cross-examination that she did so in circumstances where she had not really identified when the asserted behaviours occurred nor whether any other persons were present in the home at the time.
It is inherently improbable the father would threaten S with a smack if she “forgot to tell” Ms U something about him. It is much more likely, given the mother’s view that the father had sexually abused S and the fact that Ms U’s sessions with the child occurred at the mother’s home, that the mother conveyed to the child, in some way, that she would get in “trouble” if she “forgot” to tell Ms U allegations adverse to the father.
Additionally, the mother said, during cross-examination, that she told S she would like her to tell Ms U what she had told her and Mr C – she said that, when she did this, she was trying to ‘scare’ the child into telling someone outside the family. This too is consistent with the child’s reporting to Ms U about a smack.
The matters outlined above compel me to conclude that little weight can be placed upon the comment made by S in early February 2010.
The mother was interviewed by Departmental Officers on 16 February 2010. She reiterated the asserted complaint by S. She confirmed she and the father did not talk and were engaged in ongoing conflict. She reported she did not want the father to stop seeing the children because they would be “heartbroken” if she prevented them from spending time with him.[17] Such comment reflects her appreciation of the strength of their relationship with their father.
[17] Exhibit 24q.
On 5 March 2010, the Department recorded the allegation as “Unsubstantiated – child not in need of protection.”[18]
[18] Exhibit 24w.
On a number of occasions, the mother told the Department S would only make disclosures about the asserted sexual abuse to Mr C. Despite this, Mr C has not provided an affidavit (despite a previous Order that the mother obtain one from him), nor has he made himself available to be a witness in the proceeding despite being offered a number of logistic solutions. I am, therefore, unable to assess the events surrounding the asserted making by S of the alleged allegations. Mr C’s absence casts significant doubt upon the asserted allegations allegedly made by the child S to him.
Ms U went to S’s school on 12 March 2010. She records the child was “embarrassed” when she talked about the names of private parts. Ms U said the child understood that her body belonged to her, that no one had the right to touch her, that she should not keep bad secrets and that she had to tell trusted adults. S nominated “mum and dad” as her trusted adults. Ms U said, during cross-examination, that the child’s statement about going to the father for help was inconsistent with the disclosure and led her to ‘close the case’.
I consider S’s nomination of the father as a “trusted adult” to be inconsistent with any allegation he had abused her in a way that breached her trust in him.
By March 2010,[19] S had seen Ms U on about six occasions. She made no disclosures of sexual assault during any session.
[19] Exhibit 3.
Ms U also counselled the child K in protective behaviours arising out of an allegation, made by the mother, that he might have been a victim of sexual abuse. She noted, during cross-examination, that the mother had not reported K had been engaging in any sexualised behaviours.
During her second session with K, in late January 2010, Ms U directly raised with him the suggestion that she had been told the father had shown him naked pictures: the child was shocked by her question and commented ‘privacy’. Ms U explained her rationale for confronting the child directly on that occasion was, supposedly, to ‘make sure the children were safe’. Despite such an ‘open’ invitation to provide information, K made no disclosures of any inappropriate behaviour by the father and Ms U ceased counselling him shortly thereafter.
On 3 June 2010, Ms U wrote that “since there is no indications of pervious [sic] sexual abuse was found in the self-report and no disclosure have been made, no further counselling will be considered at this moment”. During her cross-examination Ms U explained the apparent inconsistency between this and her notes from the 5 February 2010 session as arising because the comment made that day related to historical events – the comment did not amount to a current disclosure.
On 31 August 2011, the mother told the Department the father continued to go in the bathroom and watch when S had a shower. She said K told her “Dad is a pervert, because he goes in and watches [S] in the shower”. This information was recorded as a Child Concern Report because: it was second-hand, largely historical in nature, the allegations had been reported a number of times and previously assessed as unsubstantiated. The Department noted that, whilst the information provided suggested “the behaviour” was ongoing, there was insufficient information to warrant further investigation.[20]
[20] Exhibit 24d and 24e.

The mother accepted that, during the September 2010 holidays, she asked the father to care for the children. She also accepted that she asked him to care for them on New Year’s Eve 2010 so she could attend a party: in fact, she accepted she had communicated to him that she would leave the children with a stranger if he did not collect them. It is clear from this behaviour that, despite her current assertions that she was concerned that S was being sexually abused by the father, she was insistent that they went into the father’s care.
As outlined above, the parties were interviewed by Ms D in September 2011. The mother spoke of her primary concern that the father was sexually abusing S. She told Ms D the concerns had been investigated by “the appropriate authorities” who had assessed them to be unfounded because no disclosures had been made by the child.
On 18 November 2011, the mother took S to the E Police Station. She told the police that, about three weeks earlier, S told her “Dad touches my boobs” and “he still goes and watches me in the shower”.
Police interviewed the father on 27 November 2011. He told them he and his partner had watched television in the bedroom whilst S showered in the adjacent bathroom – when she spoke with them, he would look over and talk to her. He and his partner agreed that both would cease to be in the bedroom when S showered and went to the toilet. He denied touching the child’s breasts in any way.
The police concluded there did not appear to be anything “sinister” in the allegations given: any glances by the father were “quick”, he was with his partner, they both were distant from the child and any “watching” occurred in the context of a conversation between S and them. Police concluded the allegation was unfounded and determined investigations revealed sufficient evidence to indicate no offence had occurred.[21] Nothing in the material before me that persuades me to reach a conclusion different to that expressed by the police on this occasion.
[21] Exhibit 23p.
Mr B engaged with the parties and children on a number of occasions in February 2012 in order to prepare his report, dated 10 April 2012. By the time Mr B was involved, X Service had previously engaged with S and both the police and the Department of Child Safety had completed their respective investigations and concluded that no offence had occurred and that the allegations were unsubstantiated.
Whilst the mother took the time to tell Mr B that, during their relationship, the father had a “huge supply” of pornographic videos and magazines, she said that, to her knowledge, the children were not exposed to this material. She also said that, to her knowledge, the father did not act in any inappropriate way towards the child S during their cohabitation.
Mr B recorded the mother told him that, fairly shortly after separation, S started coming home from time with her father with a red vagina; she took her to a doctor who suggested a change of toilet paper or soap. When the child continued to have a red vagina, she took her back to the doctor and expressed concerns about sexual abuse because the child was “only” red and rubbing herself after visiting her father. The observed irritation cleared up after a couple of days with the application of aloe vera.
As noted above, the mother did not raise such concerns with Ms M in April 2007: instead she proposed the children spend unsupervised time on weekends and for half of the school holidays with the father. Such proposal is completely inconsistent with the mother seriously holding concerns that S might be at risk of being sexually abused by the father.
The mother told Mr B (in February 2012) she became aware of the “doodle incident” in about February-August 2009. Even on her case, she did nothing to prevent the children spending unsupervised time with the father after this – in fact, the parties continued to implement the terms of the July 2007 Order which saw the children spending alternate weekend and holiday time with the father. Again, this is completely inconsistent with the mother seriously holding concerns that S had been and might, in the future, be at risk of being sexually abused by the father.
When she told Mr B about the allegation the father had stuck his “doodle” into S’s mouth, the mother said the child elaborated by saying that, whilst the white stuff came out of the father’s doodle, it would not come out of K’s. This “elaboration” was not mentioned by the mother to the police in October 2009 nor to X Service in December 2009.
The mother told Mr B the child S conveyed the same information to Mr C’s mother and the maternal grandmother. Mr C’s mother was not a witness in the proceeding, despite the mother’s assertion[22] Mr C’s family was “quite prepared to put affidavits [sic] in” on [Mr C’s] behalf. Mr B was given a document which contained a written account by the maternal grandmother of a conversation with S. This document contains no reference to the elaboration referred to above. Further, during her cross-examination, the maternal grandmother – whose evidence in this respect I accept – was emphatic in asserting that S had never said to her or in her presence that the father made her take his penis into her mouth.
[22] Mother's Affidavit filed 1 December 2011.
The mother told Mr B that, up until about November 2011, S continued to tell her the father was lying on his bed and watching her in the shower. The child confirmed to Mr B that the father had been lying on his bed watching television – she said that when she asked him to leave the room, he complied.
The mother also told Mr B that, in about September or October 2011, Mr C saw K fondling S’s breasts and, when asked why he was doing that, he reportedly said “It’s alright. Dad does it. I’m allowed to”. The mother told Mr B that S had confirmed K was allowed to do this in the father’s home. However when she spoke with Mr B, S denied K had ever acted inappropriately toward her. The absence of Mr C as a witness again weighs heavily on any assessment of the validity of the mother’s hearsay assertion about K’s alleged behaviour – even more so in the face of S’s clear denial to Mr B.
The father told Mr B he thought the mother invented the allegations to assist a proposed move to the coast: he noted that, even with the alleged sexual abuse, the mother offered the children spend alternate weekends with him. He emphasised that, despite being taken to speak to a number of different people about his alleged behaviour, S had never made any disclosures about any inappropriate behaviour to any of them.
Mr B spoke with S at the father’s home on 23 February 2012. She told him nothing untoward had occurred. She said the father had never acted inappropriately toward her. She reported sleeping in the same bed as K every night, at his initiation, because he was scared.
The mother accepted, during cross-examination, that she was aware S had not told Mr B “anything” (that is, made any sort of disclosure at all of inappropriate behaviour) during the interview at the father’s home because she asked her what she had told him.
Mr B spoke with S at the mother’s home on 25 February 2012. He ‘accepted that nothing would be disclosed if she [[S]] was by herself’ and, very unusually, decided to speak with S in the mother’s presence. I consider that, because of the manner in which Mr B conducted his interaction with the child at the mother’s home, the reliability and evidentiary value of that which occurred is significantly diminished. Had he conducted the interview in a manner which required the child to respond herself, I may, perhaps, have been persuaded to accord some weight to her recounting – even given in the mother’s presence.
However, because Mr B gave S the “option” of responding, by pointing action, when the mother recounted – in her presence - that which she said the child had reportedly told her over time, I am compelled to conclude I can place no weight whatsoever on the child’s actions or behaviours at her mother’s home when the allegations were discussed with Mr B. My very serious concerns about the process Mr B undertook on this occasion are further heightened when regard is had to the history of external interventions (as outlined above) about the allegations which predated his involvement.
I do note, however, that one of the only things S actually told Mr B, when he pressed her about how recently ‘these things’ had occurred, was the phrase: “but not for a long time”. Given the occasions on which the child had previously been spoken to about the allegations and her previous assertions –repeatedly ignored by the mother - that nothing inappropriate had happened and that the father had not done anything inappropriate to her, I consider it highly likely that these words were a vain attempt to bring further consideration of the allegations, finally, to an end.
I do not accept Mr B’s evidence that S ‘appeared to be relieved to have “made” disclosures’ because: she had not, in fact, actually made any disclosures to him and his assessment of her ‘relief’ rests upon his subjective interpretation of her reaction and positively excludes, as a possible causal factor, the child’s potential relief that the ordeal she endured in his presence was over.
Given the significant concerns I have about the manner in which Mr B engaged with S in the mother’s home, I accept the submission made by Counsel for the Independent Children’s Lawyer that, in so far as it purports to proffer an opinion or conclusion about the allegation that the father sexually abused the child, his report should be afforded no weight whatsoever.
Mr B recommended the mother take S to a police station so she could be spoken to by a female police officer. The mother ignored the recommendation to wait until a female police officer was available and took the child to the police the next day. She justified this decision by asserting that it would not have made any difference as the child had previously been spoken to by a female police officer.
S was interviewed by police for about 45 minutes. The interviewing police officer told the mother that “nothing really” had been disclosed. This led the mother to go into the interview room and tell the child to tell him “the truth”. The mother reported the child then “said something about the bottom part”.
The suggestion that S told the police something in the interview after the mother entered the room is contradicted by the interviewing police officer to whom Mr B spoke on 27 February 2012. This officer reported that the child communicated more by pointing/gesturing (as had occurred during Mr B’s conversation with her). He also said that:
a)while the child pointed to her chest area during his interview with her, she had refrained from using words;
b)when the mother came into the interview and prompted the child, she pointed and looked “down below” – he did not recount that she said anything about ‘the bottom part’;
c)the child said she did not remember where the father’s partner was; and
d)the child said the father was wearing clothes.
The interviewing police officer also told Mr B the child had indicated “she feels safe in her father’s household and likes living there and wants to remain living there”: the only “unsatisfactory” thing about the father’s household, from her perspective, was K’s friends coming over.
The teacher at S’s school with whom Mr B spoke told him she had not observed any “untoward reactions or behaviours” from the child in class. However, she described the child as a little quieter at times, so that if anything untoward was occurring it might be difficult to ascertain.
S was referred to X Service in July 2012 by the mother because of a “recent disclosure” that the child had made to her “independent social worker” alleging the father had sexually assaulted her. As a result of this referral, the child started counselling for the purpose of assisting her to address feelings about “the assaults” and to develop coping skills relating to her experience.
On 17 July 2012, S disclosed to Ms U the father touched her body “(pointing to her own breast and vagina) when showering her.”
Ms U next saw S on 31 July 2012. Her notes of that session record that:
At the beginning of the session, [the child] told me that her dad put his doodle into her mouth. She said it happened more than once when I asked, but no more elaboration was made. I asked her if she wanted to talk about it and she answered no. I asked her why she choose (sic) to tell me this today and she and said “because I don’t want to go to stay with dad”.
Ms U recollected that this discourse occurred at either the very beginning, or close to the very beginning, of her session with S that day. She did not seek any further detail from the child – such as when this event was alleged to have occurred or who else was at the home – nor did she ask her when she first remembered this event or why she had not mentioned it before.
Ms U also records S told her she did not want to go to visit her brother who was staying with the father. Ms U considered the child was observed to be distressed by the topic and refused to have eye contact.
When Ms U raised with S the idea of talking with police about this alleged event, the child told her ‘no’ and that she did not want to report it further. Beyond that which is set out above, Ms U did not investigate further any discussions between the mother and the child.
Despite the contents of the file note for 31 July 2012 being as set out above, Ms U included in her affidavit that S told her the father told her not to tell anyone. She accepted, during cross-examination, that her Case Note did not record this very important bit of information. The differences between the account in her affidavit and the content of the contemporaneous notes causes me to regard Ms U’s evidence with significant caution.
On 10 September 2012, the mother telephoned police and said that S had made “disclosures” to X Service and doctors about “dad sticking his rude thing in her mouth”. When the police officer asked the mother whether she thought the child would speak with them, she said she would not and just wanted to forget about it. The mother wanted to know how the father could be prosecuted without a statement from the child. Police explained the process thoroughly, but noted that the mother seemed frustrated, saying the father was getting away with it. She hung up.[23]
[23] Exhibit 23ac
On 13 September 2012, Ms U made a Child Protection Notification to the Department of Child Safety Services (“the Department”).
Ms U says, in her report dated 22 October 2012, that S told her that the abuse ceased in 2010 as she told her father to stop. The child also told Ms U “that this skill was taught to her by [her mother], whom she made the first disclosure of alleged sexual abuse to”. Ms U says, in her report dated 22 October 2012, that the child felt angry, frightened and confused by her father’s behaviour and did not understand why he would do these things to her.
The mother said that, on 3 February 2013, S made disclosures to her about the father: “that her dad had got her down on a bed and put his doodle between her legs and this hurt her”. She said the child said that she bled, and Ms G gave her something for the bleeding.
It is, I think, very relevant to record that this asserted disclosure by S to the mother came after Mr B suggested in his report that unless the issue of the father’s alleged sexual abuse of the child was clearer, his recommendation may be that she should live with the father.
The contents of the asserted conversation on 3 February 2013 were reported by S to Ms U on 12 February 2013. Ms U records that the child told her that she wanted to tell her something and said “she didn’t want to go back to her father. Then she disclosed [sic] that her father had put his doddle [sic] pointing to her (vagina)”. Ms U records that the child said it happened when she was aged seven, that she could not remember a lot of the details but said it happened in her father’s bedroom and he had told her not to tell anyone. Ms U also records that the child told her that it happened once.
On 12 February 2013, S told Ms U “further information” of the history of sexual assault alleged to have been committed against her by her father. She reported that when she was aged seven – sometime between August 2007 and August 2008 – the father had put his “doodle” to her private part, pointing to her vagina. Ms U clarified during cross-examination, that the child did not disclose any “details” but just pointed to her body. She said that she was told not to tell afterward. The child said that this incident happened on one occasion in her father’s bedroom. Ms U reports that the child provided no further details as she only had “a vague memory” of the incident. By this, she meant that the child told her that she could not remember the details: for example, when Ms U asked a direct question for the details she could give, the child said she could not remember.
I consider it highly unlikely that, if S had been subjected to an abuse involving penetration by an adult male, she would have had only a “vague memory” of such an horrific assault. I also find it highly unlikely that she would not have disclosed the details of such an event in some way to the various persons with whom she had spoken and by whom she had previously been interviewed or assessed.
Ms U recorded that S expressed anger toward the incident when telling her and commented that her father should either stay in jail for a few days to clear his mind or take a break and stay away from her.
When asked by Ms U what she would like to happen to her father because of what he had done, S told her he should stay in jail for a few days to clear his mind but at the moment she would like him to go away for a break for a week or two. Ms U records that the child said she did not want to report this information to the police because she felt very uncomfortable with the interview process.
She also records that S confirmed that this information was only told to Mr C, the mother and Ms U. Ms U notes that the child was encouraged and praised as a consequence of making the disclosure. Ms U records the disclosure as being that the child disclosed being raped by her father when she was seven years of age. Ms U also recorded that the child said she did not want to return to her father’s care.
Despite S clearly indicating that she did not want to speak to police, Ms U later attended the police station with the child for her to make a statement. She explained that this occurred after the mother contacted her because she believed what the child said and considered it important to let the police know.
She said S did not vocalise the disclosure – she used the word “doodle” and pointed to her vagina but did say that Ms G stood there and watched. Ms U said the child did not say she had bled as a result of this alleged assault.
It is concerning that despite the numerous interventions prior to February 2013 this asserted disclosure of the most serious and traumatic occurrence of all only came after Mr B’s report had recommended that, in the absence of the allegations of sexual abuse, the children should live primarily with the father. I find it highly unlikely, given the number of occasions on which S had the opportunity to make such a disclosure about an event that can only have been painful and frightening, that any such event in fact occurred.
Ms U continued to provide therapy to S after this appointment. The child did not make any further disclosures about alleged behaviour: she said she did not want to talk about this anymore.
Ms U’s second report, dated 5 August 2013, summarises S’s counselling, during ten visits, in the period from October 2012 to July 2013. The report commences by describing the child as living with her mother “and her de facto partner known as [Mr C] who has been living with the family for five years.”

During cross-examination Ms U concedes that some information contained in her affidavit (for example, in paragraphs 3.1 and 3.5) was given to her by the mother rather than by the child. She explained that the mother told her S had told her that the ‘last’ occasion of inappropriate behaviour occurred in 2010 (and not beyond that) and that the child told the father to ‘stop’ and ‘it’ never happened again.
Ms U was not made aware of Mr C’s criminal history. She said during cross-examination that it was concerning the mother did not tell her that her partner was a sex offender.
I consider the mother’s failure to tell Ms U this relevant piece of information to be a demonstration of a significant deficit in her capacity to consider any proposition other than one which cast responsibility for alleged abuses at the feet of the father.
Despite Ms U agreeing that a “significant portion” of S’s anxiety related to the parental conflict, she did not mention this conclusion in her affidavit. She said this omission arose because the child had been referred to her in relation to sexual abuse and her report was provided in this context rather than within a context of considering the child’s overall mental health.
The narrowness of her approach and apparent unwillingness to consider other matters which may have been causally related to the child’s assessed anxiety casts further doubts upon the weight which can be attributed to Ms U’s evidence.
Ms U asserted, in her affidavit filed in October 2012, that S was suffering trauma as a result of being sexually abused by the father. She based this conclusion on the information provided to her. She assessed the child as displaying an auto self defence mechanism based upon the trauma symptoms she displayed as a result of exposure to the father’s alleged behaviour, her demeanour and that she did not want to talk about anything that upset her. Ms U categorically rejected the alternative explanation raised by Counsel for the Independent Children’s Lawyer: namely, that S’s behaviour was equally consistent with an untruth she was aware of and embarrassed about. She did so on the basis of the ‘symptoms’ reported by the mother and that the child had a ‘strong avoidance of the memories’ – the latter also, of course, being possible if in fact the alleged behaviour did not occur.
She accepted that, if she had been told that S had witnessed physical altercation/s between her family group, exposure to this would also account for the trauma she assessed the child as experiencing.
I accept the submissions made by Counsel for the Independent Children’s Lawyer as to the manner in which I should assess Ms U’s evidence. It is clear she provided counselling to both the mother and the child simultaneously and that she received information from the mother about S during sessions. She kept no records of her counselling sessions with the mother. It is, I think, reasonably clear the manner in which Ms U managed her interactions with both the mother and the child had the consequence that (as seen in paragraphs 3.1 and 3.15 of her affidavit) she added detail supplied by the mother and not S.
Ms U accepted that the mother was highly distressed, emotional and angry about the allegations. The mother spoke to her about having the father jailed and expressed to Ms U her view that he should have no contact with S or Ms G at all, based on her acceptance of S’s disclosure.
Ms U said she did not have the information that the mother now believes that Ms G stood by and watched the father sexually abuse S until she heard it during her cross-examination. She asserted the mother had never told her, at all or in the time from February 2013, that Ms G stood and watched the child be sexually assaulted.
Ms U’s evidence lacked consistency: for example, during the early part of her cross-examination she said she had not made any notification to the Department about the disclosure in July 2012 and February 2013; however, her evidence also revealed that, in September 2012, she disclosed about S’s comment to her in July 2012. When asked why, if she received for the first time in her engagement with the child over four years, a disclosure on 31 July 2012 (where S indicated that the father tried to make her perform a sexual act) it took her two months to make a notification, Ms U said she believed she had discussed the matter with her supervisor who advised her to act in this way. She accepted there was no mention in her affidavit of this rationale. She explained the service’s rationale in delaying notifying the Department was because the child was safe and in a safe situation according to the disclosure.
Ms U denied that she made a notification because the mother wanted her to or that the mother asked her to do that. She said the mother asked her to accompany the child to the police station.
Ms U said she thought she told the mother after the 31 July 2012 session that the child had said the father put his doodle in her mouth. She outlined she received information from the mother prior to the session with S: namely, the mother told her the child had something she wanted to tell her, after the mother told her about the new disclosures the child had allegedly made to her (albeit that she had no notes of this session). Ms U recounted that the child never made that type of disclosure to her. She said that a lot more details of the asserted disclosure were told to her by the mother than were provided to her by the child.
As noted earlier, the mother did not ever tell Ms U Mr C had been convicted of having a sexual relationship with a child overseas. Ms U accepted that this deliberate omission was a concern. When asked whether this information would be important to an assessment of whether the child was in a safe household, she said that, if she had known that, she would have really enforced assertive behaviours for precautionary reasons.
Ms U said, in her second report, that S was safe and well cared for living with the mother and Mr C. She expressed her view that it was preferable she remain there. She outlined that the child was consistent in expressing that she felt safe in the household and that, whilst her knowledge of Mr C’s previous conviction was important, she contrasted the position with the child telling her she did not feel safe with the father.
Of course, this ignores S’s earlier recounting during her 2010 interaction with Ms U.
When asked whether, armed with the knowledge of Mr C’s previous conviction, she was still confident in her view that the child was safe in the mother’s household she responded “with supervision, yes”. Such reservation is significant. She expressed the opinion that there needed to be supervision in the mother’s household - by the mother - of the relationship between Mr C and the child. Given the mother’s clear defence of and dependence on Mr C, I am not remotely confident the mother would be likely to impose such supervisions during any lengthy or overnight times.
Ms U also that, if she had been made aware of Mr C’s previous criminal history, she would have asked S about: privacy at home, how she felt, assessed her protective skills and checked to see whether she had other safe people to go to if something went wrong.
Ms U also said that, the fact that Mr C was the adult who allegedly received the information that the father had allegedly placed his penis in the child’s mouth was something that caused her concern. She explained that this was because she did not know the boundaries in the mother’s home and could not be sure how, in that household, boundaries were established to keep the child safe and afford her privacy.
Ms U accepted that it was a concern that the child presented and disclosed information about the alleged sexual acts at the very start of the session. She reiterated that S had been experiencing her parents’ very bitter separation, was distressed about their fighting and told her she did not want to go to town because she was worried about seeing the father or Ms G and worried that there would be a big fight between her parents. She was also worried her mother would get into a fight with her father and his partner. Again, she had not recorded those highly relevant matters in her notes.
Ms U further accepted that the contents of paragraph 3.12 of her report were not entirely accurate because a significant proportion of S’s distress related to the conflict between her parents.
Ms U also confirmed the mother did not tell her about being assaulted by Mr C. She said that, if she had known he had been jailed for assaulting the mother, she would have wanted to know more about this issue, because exposure to this violence could cause a negative impact for S and could definitely be responsible for the trauma she had expressed.
Ms U said S seemed happy and not scared of Mr C. She described things that made her happy and that he was a fun person to hang around with. She confirmed she did not ask the child if she was left alone with her mother’s partner or spent her time with the mother and him together. She confirmed that the child had never spoken badly of Mr C to her - she was surprised to learn domestic violence was an issue in the mother’s household.
The mother’s deliberate omission to fully inform Ms U about Mr C’s history, Ms U’s willingness to rely on information provided by the mother about alleged events and the inconsistencies and omissions in Ms U’s account (when comparison is made of the content of her notes and her affidavit material) has led to the conclusion that very little, if any, weight can be accorded to Ms U’s expressed opinion that the child should remain living in her mother’s home.
The mother asserted S said she did not want to go back to the father because he had “raped” her. However, there is no reference whatsoever in any affidavit material relied upon by the mother to either the allegation of rape or S’s asserted comments after it allegedly occurred. The mother also confirmed during cross-examination that, on any occasion she had seen the child with a red vagina, she had not observed any bleeding.
I am not persuaded that the father held S on the bed and penetrated her causing her to bleed and that this happened whilst Ms G was present.
I consider it clear that the conversations between the maternal grandmother and S about the allegations of sexual abuse occurred within a context of the grandmother initiating the conversation after she had been made aware by the mother of her belief that the child had, in fact, been sexually abused. It is also clear that the maternal grandmother asked the child very specific questions (such as “has your dad touched you in your private parts”) which elicited an affirmative response. I accept as highly likely that her asking this question made the child very uncomfortable. I also accept that the grandmother initiated her discussions with the child about allegations the father had touched her or showered with her to find out what was happening and in the context of wanting the child to make a positive report to the police. I also accept the grandmother’s evidence to the effect that the child was tired of people in the mother’s household asking her questions about whether she had been sexually abused. The forgoing easily provides a basis for such conclusion.
I take into account that, in the period from 2007 until mid-2012 (when S was spending time with the father) there were no occasions on which she told the maternal grandmother she did not want to go to see him because she was worried he would hurt her. I accept the maternal grandmother’s evidence that, apart from the occasion where she asked the child the questions referred to above, the child did not ever “volunteer” that the father had done something she felt uncomfortable with. I accept that to the maternal grandmother S said that she was “happy” at the mother’s but liked seeing the father. Such reporting is, I consider, inconsistent with the allegations that her father had sexually assaulted her in any way.

The absence of Mr C

In explaining the absence of Mr C as a witness in the proceeding, the mother said he was illiterate and, therefore, could not provide an affidavit. She later accepted she could have written an affidavit for him but he refused to provide one. In explaining his failure to attend at Court to give evidence orally, she relied on his asserted health issues.
These explanations must be seen in the context of the following earlier information:
a)in 2012, the mother said she was no longer in a relationship with Mr C, and as such, he would not be providing any evidence in the proceedings; and
b)in her affidavit filed 23 January 2013, the mother said “[Mr C] is not writing an affidavit as he has the right to choose as he is not playing the lying false accusations etc that I am receiving from three idiots that have not ever spoken to [Mr C] they do not know [Mr C]”.
During cross-examination, the mother confirmed she and Mr C continued to live on the same property, as they both own the house. It was also clear that the mother’s partner was physically present at the property just before the start of the hearing.
The mother’s evidence suggests that her partner was the first person to whom S allegedly made disclosures of sexual abuse. Mr C was also the first person to whom K allegedly asserted that the father had permitted him to read pornography. The mother’s partner was the party responsible for engaging X Service. Despite all of this, he positively failed to present himself as a witness in the mother’s case. His decision not to participate in any significant way other than via engagement with Mr B means that the mother is uncorroborated in her evidence about what S is alleged to have said at various times in the household.
The mother said, during cross-examination, that Mr C was not involved in the case to support S because he had had enough of Court, was not a well man, could not travel, became very sick when he travelled and could not travel to Brisbane. When asked whether he could be made available by telephone, she said she would have to speak to him first. She also said he was not involved in the case because it had nothing to do with him as he was not going for custody of S. All of these explanations ring hollow: especially if, as the mother presents, he was the person to whom reports of familial sexual abuse were made.
The mother outlined her understanding of Mr C’s previous conviction: namely, that he was intimate with a girl he thought was 18 years of age. She clearly believed his account of the circumstances that led to his conviction.
During her cross-examination by Counsel for the Independent Children’s Lawyer, the mother said she could not speak with Mr C at present, he was not permanently at the home all of the time, he did not have a phone, had no car, could not get anywhere and was very ill. She did not tell anyone in her family about his previous conviction because it was none of their business and it occurred 26 years ago. She did not raise it with Ms M.
I accept submissions made by Counsel for the Independent Children’s Lawyer about the manner in which the mother’s evidence about Mr C should be assessed.
I am not in any way persuaded that S has been sexually abused by the father or that she is at risk of the same. Reflection on the matters outlined above in significant detail suggests only that the mother appears to have developed a view that this is the case. It is also clear that S has been subjected to extensive interviews on numerous occasions about this type of allegation. She has, it seems to me, been repeatedly placed in a situation of having to respond to questions by adults about various, changing allegations – her repeated denials of inappropriate interactions have been ignored or dismissed by the mother whose own reactions to such asserted allegations have been very inconsistent.

Is the child S at risk of being sexually abused by the child K if she spends time with him?

The mother told Mr B, in February 2012, that around September or October 2011, Mr C encountered K fondling S’s breasts. He is said to have had his hand under his sister’s top and, when asked what he was doing, purportedly replied “It’s all right. Dad does it. I’m allowed to.” The mother told Mr B that S was embarrassed but later confirmed that K was allowed to do this in their father’s household.
When spoken to privately by Mr B on 23 February 2012 at her father’s house, S denied that K had ever acted inappropriately toward her. She told him that, despite having her own bedroom at her father’s house, she sleeps in the same room as her brother because he gets scared in the dark.
When spoken to by Mr B on 26 February 2012 - in her mother’s presence - S said K had touched her breasts, but from the outside of her clothing.
This changed recounting provides a stark example of the influences on S. I accept S’s explanation to Mr B on 23 February and am not persuaded she is at any risk of being subjected to inappropriate behaviour by K.

Are the children at an unacceptable risk if they spend time with the mother?

Alcohol use and domestic violence

The father alleges that the children are at risk of harm in their mother’s care because of her alcohol consumption. He also asserts that Mr C poses a risk to them.
A consideration of the foundations for such assertions can best be undertaken via an historical summary of events and other matters relevant to the mother and Mr C.
In December 1989, Mr C was convicted, overseas, of an offence of sexual intercourse with a girl (12 to 16 years of age) and committing an indecent act (girl 12 to 16 years of age). He was sentenced to imprisonment.[24] Whilst this offence occurred a significant time ago, Mr C’s absence from the proceedings does nothing to address the father’s understandable concerns about the possible impact on the children of exposure to him.
[24] Exhibit 11.
During a consultation on 16 December 1999, the mother informed Dr O that she took “speed” last Thursday and Friday. She reported that the father had not been violent for “ages”. The mother used speed and smoked pot and consumed alcohol. She was advised not to smoke marijuana or drink alcohol and to get the father to cut down his marijuana use.[25] On 24 August 1999, Dr O diagnosed the mother suffering from major depression.[26]
[25] Exhibit 16.
[26] Exhibit 18.
On 4 December 2000, the mother told Dr O she was drinking a lot less and that the father had changed since they had the baby and had been going to a psychologist for two years.[27]
[27] Exhibit 19.
Whilst raising his concerns about the level of the mother’s consumption of alcohol with Ms M in April 2007, the father himself proposed that the children’s time with her occur each alternate weekend, overnight during the week and for half of the school holidays.
In December 2008, the mother and Mr C were involved in an altercation following an argument about the mother’s alcohol consumption. Both told the police that, in the last two weeks, there had been physical altercations between them and that, whilst neither suffered injury, they had consistently taunted each other. Police took out a Domestic Violence Order to minimise risk.
On 20 November 2009, Mr C punched the mother four times to the left side of her face. On 21 November 2009, Mr C punched the mother on the left side of her face. Records note he telephoned the police, told them about the offences and asked that they take him away. The records also note he told police he was supposed to be taking Endep (and other medication) for depression but had decided, approximately 10 days before, to cease taking the medication. He said the children were not present during these events. Police records note that the mother suffered significant injuries and that this was the second incident of domestic violence between these two parties.[28]
[28] Exhibit 23u.
On 23 November 2009, Mr C was dealt with in the E Magistrates Court for breach of a Domestic Violence Order. No conviction was recorded and he was placed on probation for 12 months. On 19 October 2010, Mr C was dealt with for breach of a Domestic Violence Order. A conviction was recorded, he was sentenced to imprisonment for 207 days and a declaration was made that pre-sentence custody be deemed to be time already served: consequently, he was released that day. On 10 January 2011, Mr C was dealt with for a breach of the Probation Order imposed on 23 November 2009 and was fined $240.00.[29]
[29] Exhibit 23s.

Mr C told Mr B he was in custody for 227 days and that, after an appropriate modification to his medication and him being legally represented, the matter was resolved on the basis that he was fined $240.00. He also told Mr B that, since then, he remained on the appropriate medication which had proven to be “appropriate and stabilising.”
On 20 February 2009, the mother sought professional help for alcohol addiction. She reported domestic violence in her relationship because both parties were “drinkers”. She said she did not drink when the children are at home. She reported losing her licence.[30]
[30] Exhibit 12.
In early January 2010, the mother and Mr C had a verbal argument about the mother’s drinking habits. Despite having consumed alcohol, the mother returned to a friend’s place and then returned to her home. It appears, from records, that the mother’s recollection of the event was impaired.[31]
[31] Exhibit 23l.
Ms U spoke with K at his home on 5 January 2010. He told her the family was planning to go to New Zealand and that his mother had been punched by a neighbour the previous day because their horses had gone to the neighbour’s property.
Departmental Officers interviewed the father and his partner in early February 2010. At that time he reported that there was “no relationship” between him and the mother. He reported that the children would rather spend time at his place than at the mother’s because of the fighting and alcohol consumption.
On 6 March 2010, following a disagreement over a trivial issue, Mr C grabbed the mother by the T-shirt, twisted it until he was choking her, said he was going to “fucking kill her” and dragged her down the back where no one would find her. The mother grabbed him by the beard and he punched her twice: once to her left eye and once to the forehead; he ripped some hair from her head. The mother escaped and went to a friend’s residence. Police were called. The mother sustained a black left eye, lump to her forehead and had hair pulled out. Mr C was said to be moderately affected by alcohol whilst the mother was said to be slightly affected by alcohol. Mr C was charged with a breach of the Domestic Violence Order.[32] The result of the proceedings are outlined earlier.
[32] Exhibit 23v.
He was imprisoned. He told Mr B (in February 2012) that the adverse effect of his medication on his behaviour continued when he appeared before the Magistrates Court such that he was held in custody over two Court dates as a consequence of his contempt of the Court.
The police attended the mother’s home on 17 October 2010 because the mother had contacted them to indicate she was undergoing some distress as a result of K hitting her with a vacuum cleaner attachment. They considered her affected by alcohol. They observed the interior of the dwelling to be clean and tidy (although it had previously been reported as “filthy and messy”).
When he spoke with Ms D in September 2011, the father’s primary concern was the mother’s and Mr C’s excessive alcohol consumption and the impact this was having on their capacity to provide a safe home for the children. In addition, he was concerned that Mr C had been in prison for assaulting the mother and had allegedly harmed the children.
Ms D considered the mother minimised the violence in her relationship with Mr C and attempted to justify his behaviour toward her. I accept Ms D’s opinion in this respect.
As at September 2011, the Department noted that, whilst there were concerns about the children receiving excessive and harsh discipline from the mother and Mr C, the information provided was non-specific and failed to provide contextual information regarding when the incidents occurred. The children had said they felt upset by the incidents, but the Department considered there was no information to suggest they were displaying any behavioural indicators of emotional harm to warrant further investigation. At that time, the children were living for the majority of the time with the father and spending time with their mother every weekend.[33]
[33] Exhibit 24b.
The mother told Mr B in February 2012 that she did not drink alcohol any longer. It was clear, however, that Mr C continued as a regular consumer – he even drank a number of bottles of beer during Mr B’s visit. The mother reported two convictions for drink driving: in approximately August 2010 and in approximately 2009. She has previously had an immobiliser fitted to the car as a consequence of drink driving. Mr C has a conviction for drink driving in approximately 2004.
Mr B noted, in the April 2012 Family Report, that the mother and Mr C both discussed with him the “extreme drinking” of the mother and the “violent outbursts” of Mr C. Mr B recommended to them to seek separate counselling with respect to these behaviours.
On 1 September 2012, the father and his partner and the mother and her partner were all involved in a confrontational event which commenced with verbal abuse. The mother was accused of striking the father’s partner and grabbing her hair pulling her to the ground. The mother was accused of punching the partner in the head. The father’s partner struck the mother in the nose causing it to bleed. Mr C behaved in an arguably threatening manner.[34] The mother and Ms G provided conflicting versions of events with the mother asserting that Ms G started the fight by throwing the first punch. Given that all of the witnesses were in some way friends of the parties involved – and not considered independent by the police – a decision was made not to proceed on the basis that it was unlikely a prosecution would be successful.[35]
[34] Exhibit 23ae.
[35] Exhibit 23af.
The children have expressed fear to the father in relation to Mr C, stating that he has threatened to decapitate their toys, and once killed their goat, by decapitating it, in their presence and later “forcing” them to eat it.
I do not accept the mother’s denials about Mr C’s behaviour toward the children or that she had never seen him intoxicated in the ‘whole time’ he lived at the property – especially given his consumption of three cans of beer during the morning Mr B was at the home to interview the parties.
I consider that the mother has previously excused Mr C’s violent behaviour toward her. She has not ever instigated obtaining a Protection Order following his behaviour toward her. Even when asked whether she accepted that Mr C had breached the Protection Order obtained by police, her response was to minimise his behaviour. It is clear Mr C breached the Protection Order on a number of occasions after it was made: on the first occasion he struck the mother whilst they were in bed and on the second occasion he tore some of her hair out and beat her severely about the face causing her to suffer a black eye.
It is, I think, instructive to record that, during her cross-examination about these violent assaults, the mother said she thought it was ‘lovely’ that Mr C ‘dobbed himself in to the police’. She said she wanted ‘male protection’ at her residence.
Given her unwillingness to accept or acknowledge any criticism of his behaviour toward her – as demonstrated starkly by such a comment - I consider it highly likely that, in the future, she will continue to excuse any unacceptable and/or aggressive behaviour by him and prioritise her apparent need for support from him over her and the children’s safety.
I do not accept the mother’s denials of the accounts that she and Mr C have, on occasions, been intoxicated and argumentative whilst the children have been in their care.
I do not accept the mother’s denials of the level of her alcohol consumption. I consider it more likely than not that there have been occasions when neighbours (upon whom she has attended for assistance after being assaulted by her partner) have observed her to be so drunk in the early hours of the morning, and at evening events, that her behaviour has been unrestrained.
I consider it highly likely there was an occasion in 2011 where, having taken the children to school, the mother consumed alcohol to excess. I do not accept that, when asked to provide a specimen for random breath testing on an occasion, that she was unable to do so because of an asserted injury to her ribs – I consider it much more likely that she failed to provide a sample because she knew she would have registered a reading higher than the legal limit.

Physical discipline

On 8 April 2010, the child K was interviewed by police. He reported three occasions when Mr C disciplined him. The first occurred in 2009 when Mr C grabbed him by his ears: he did not appear upset about the incident and could not particularise how it occurred. The second incident was said to have occurred on 8 February 2008: on this occasion Mr C told him to shut up, called him an arsehole and grabbed him by the waist. His head was between Mr C’s knee and calf area and was squeezed. The mother came into the room and told Mr C to stop, which he did. The child then went to his bedroom. The third incident occurred when Mr C was trying to get K to ride a motorbike and he would not: Mr C hit him on his left shoulder/neck area which caused him to fall off the bike and onto the ground. He said no marks or injuries were caused by these incidents.
When spoken to by police, the mother strongly denied the events. She said she had never seen Mr C hurt her children in any way. She also told them that her relationship with Mr C was over and she would be having “nothing further to do with him” when he was released from prison. The police assessed the level of risk of any future abuse or neglect as minor, there being insufficient evidence to suggest K was being harmed or that domestic discipline was excessive.[36]
[36] Exhibit 23m.
The child S told the Department she had seen Mr C strike K. The mother accepted this had occurred but said that it was a smack and not hard.

Exposure to behaviour by Mr C

Orders were made by the Principle Registrar on 19 June 2012 restraining the mother from allowing Mr C to live with S. The Order also restrained the mother from bringing either child into Mr C’s presence. The mother said (in her affidavit filed 15 October 2012) that complying with this order was not possible because she would have to move from the house, which Mr C also owns, in order to comply with it. She states that S is safe with Mr C, despite the Order that the child is not to be brought into his presence.
On 2 April 2013, police received a complaint that a friend of Ss had “disclosed” that, when she was about 10 years of age and staying at S’s place, Mr C entered the bathroom with a bottle of water and food colouring and tipped it over the glass partition of the shower – it was alleged he watched the children when he did this.
S was interviewed on 2 April 2013. She reported feeling uncomfortable when Mr C attended the bathroom and on one occasion “they” (presumably S and her friend) locked the door to prevent him from entering the room. S had told her mother who was reported to be supportive of her. There was no assertion of physical touching.
Police interviewed Mr C on 28 May 2013. He denied tipping coloured water over the children in April 2013 and said the mother had done so. He admitted previously tipping coloured water over the children as a bit of fun.
Police considered the matter finalised because there was insufficient evidence to prove an element of an offence: there was no touching or overt act that could be proven to be indecent.[37]
[37] Exhibit 23ad.
There is nothing in the evidence which contradicts this conclusion or the basis on which it is arrived at, Mr C’s absence from the proceeding and the fact of his previous conviction – whilst a long time ago – lends me to conclude that I should act cautiously when considering the children’s future interaction with Mr C.

The children’s views

Ms M spoke with both children in April 2007. At that time, S appeared to understand there was “friction” between her parents but, because of her age, was unable fully to comprehend what was happening. She identified her mother as her most favourite person in the world. She was observed to have a close and affectionate relationship with her mother and an affectionate, but somewhat more reserved, relationship with her father.
On 14 March 2008, S was interviewed at Centacare. She said she felt as though she could not tell the other parent she had a good time (with the other) in case feelings were hurt. On 21 April 2008, the children reported spending “equal” time with the father – both said they enjoyed their visits.[38]
[38] Exhibit 13.
S was interviewed by Departmental Officers at school on 1 March 2010. She reported feeling safe at her home (her mother’s) but not liking the yelling that occurred there. She felt safe at the father’s and liked being there. She recorded that it was “okay talking to people, get a bit tired of saying things”. Departmental Officers recorded no concerns in relation to her presentation.
K was interviewed by Departmental Officers at school on 1 March 2010. He thought home was “all right” but reported his mother and Mr C fighting and yelling with each other. He said he liked it at his father’s and reported that his mother’s place was good as well. He reported his parents yelled at each other a lot.
Ms D spoke with both children in September 2011. At that time, S was in Grade 6 and K was in Grade 3.
S told Ms D that “every time they [the parties] see each other they argue and fight.” She expressed the hope that the parties would cease interacting in such a manner and become friends, particularly given that the conflict between them upset her. Unfortunately for the children, such hope has been unfulfilled.
S told Ms D that Mr C had hit K on the head with his hand for no reason on a few occasions despite the mother telling him to stop. Apart from this, S reported no other concerns, but “age appropriate annoyances” about her time in either parent’s home.
K told Ms D that the parties “fight a lot… They talk to each other in a rude way.” This behaviour made him feel a bit nervous. K said Mr C had hurt him: for example, he reported being punched in the face because he accidentally did something wrong. He said the mother just sat in her chair and drank beer. He reported both his mother and Mr C behaved in a silly fashion when they had been consuming alcohol. K also said the mother struck him on one occasion with a stick for no reason.
K told Ms D that Mr C punched the mother in the eye on two occasions, causing her to suffer a black eye and also jammed her finger in the door. His solution was that Mr C return overseas.
Mr B noted, after interviews in February 2012, that, when he interviewed S in the father’s household, she expressed a preference to live there and have alternate weekend time with the mother. S told him K did not want to go to the mother’s place because of his poor relationship with Mr C. She told him she had a good relationship with Mr C and also said the mother was not drinking to excess.
When Mr B interviewed K at his father’s household, K told him he was not “keen” on Mr C because he drinks all the time, hits him with a stick and pulls him by the ears. He said he was fine with his mother but maintained she was still drinking alcohol. He indicated he was prepared to attend at her place, provided he did not have to talk with Mr C.
During a joint discussion with the mother, K maintained to Mr B that she had hit him with a stick and sent him into bed without tea. Despite this, K cuddled into his mother and became a bit tearful. Mr B considered it clear there was love and affection between K and the mother.
Mr B noted that, irrespective of the household in which he was speaking, K made it clear he was uncomfortable around Mr C and favoured living in his father’s home. In contrast, S was “more inclined” to express a view relative to the household in which she was at the time - Mr B considered she had mixed feelings about where to live, although he noted her appearance to be somewhat more relaxed in the mother’s household.
Ms U records, in her report dated 22 October 2012, that S told her she enjoyed staying with her mother and her partner - she felt safe and cared for. She also reported she would like to spend time with her brother (who was at that time living with the father).
On 15 March 2013, S spoke with the School Guidance Officer and reported that all was good and she was making new friends and attending at X Service every two to three weeks.[39]
[39] Exhibit 22.
Ms Z, is the mother’s friend. She cared for S during the hearing. She said that during this time, S was very concerned for the mother, said she did not want to go back to the father “because of what he had done” (although she did not say what he had done) and was stressed. Whilst Ms Z had provided a favourable “reference” for Mr C, it was soon apparent she had done so in the absence of full knowledge of his previous conviction for a sexual offence involving a minor.
There could be no doubt that both of the children are fully aware that neither of their parents like the other. The father was candid during cross-examination that “right from the start” K was under no illusion that he “despised” Mr C - S knew this as well and that he did not like the mother.

Nature of the children’s relationship with their parents and others

Ms M observed K’s relationship with the father to be “exuberant”. She noted the father demonstrated “unreserved joy” in seeing him and acknowledged S’s presence only after he had “enthusiastically and warmly greeted his son.”
Ms M considered S seemed to notice the imbalance in the interaction between the father and each of the children – an imbalance in which Ms M considered S rated a “clear second”.
When she spoke with Ms M in April 2007, the mother reported that Mr C, (who she described as her “boyfriend”) did things with the children and helped them with their homework: they thought he was great. Members of the mother’s extended family told Ms M they had seen Mr C “dealing with the children in a nice and patient way.”
The mother told Mr B in February 2012 that “until recently” K followed Mr C around when he was doing tasks around the home and sought to assist him. The mother told Mr B that S got on very well with Mr C.
Ms U says, in her report dated 5 August 2013, that S demonstrated feeling safe and cared for in her current residence, living with her mother and Mr C.
Save for waving to each other as she passes on the school bus, S had not spent any time with the father since the July 2012 Order was made.
I accept the children’s relationship with Ms G is good in that both have accepted their father’s relationship with her.
Given the time K has spent with his father, I consider it more likely than not that he has a good and well established relationship with him. I also consider it likely that K’s relationship with his mother has been adversely affected by Mr C’s continued presence.
Whilst S has, on occasion, repeated that she does not feel safe in her father’s care, many earlier recountings belie this assertion.
On balance, I think it more likely than not that S’s relationship with her father is well established and secure and that her struggles have predominately been in attempting to deal with her parents’ antipathy toward each other.

Extent to which each parent has taken or failed to take opportunities to participate in decision making in relation to the children, spend time with the children and communicate with the children

Both parties have actively sought to be involved in the children’s lives. Such has been these attempts that, in attempting to implement which each has regarded as “best” for the children, they have been prepared to engage in confrontational behaviour in front of the children with little regard for the likely impact on the children of witnessing this.
Both parents have supported themselves and the children with Government provided benefits and are likely to continue to do so into the future.

Practical difficulty and expense of the children spending time with and communicate with a parent and whether such difficulty or expense will substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis

Given the parties live close to each other there is no practical difficulty or expense in the children spending time with either of them.

Capacity of each parent to provide for the children’s needs, including emotional and intellectual needs

The mother suffered serious head injuries in a car accident in 1982. She was required to undertake lengthy rehabilitation. She has suffered ongoing impacts on her general health and well-being since that time. She has been in receipt of Government financial support for a significant period of time and supplements this with the receipt of income from invested compensation monies.
In April 2007, Ms M concluded that the mother seemed to have managed to provide the children with a comfortable environment, love and care and seemed to understand their age specific concerns.
Whilst the father previously used marijuana during his relationship with the mother, there is nothing to suggest he continues to do so.
As noted earlier, both parents manifest dislike, contempt and distrust in respect of the other. These strongly held feelings have impaired the capacity of both to properly support the children in relationships with the other parent.
Whilst the father has, as I have already recorded, the propensity to become “rather bad-tempered when aggravated” – as noted by Ms M in April 2007 - he also appears to calm down relatively quickly once further explanation is proffered.
In April 2007, Ms M concluded that the father had not then developed the skills required of a “full-time parent”. However, I have concluded that his skills have developed and improved since then as a result of his care for the children.
The father has not worked for remuneration for a significant period. He has previous convictions in relation to possession and production of dangerous drugs, and most recently, was convicted in 2010 for assaulting and obstructing a police officer. He has received fines.[40]
[40] Exhibit 23a.
The mother has convictions in relation to possession of dangerous drugs, assault and breach of a Probation Order imposed for that assault. Her most recent appearance before the Court occurred in December 2010. She has received fines.[41]
[41] Exhibit 23b.
Ms D reported, in September 2011, that on the day of her interviews with the parties, they engaged in a tussle over the children outside of the Court building. There appeared to have been some misunderstanding in relation to changeover. Whatever was the cause of the conflict, it is clear that, in attempting to deal with their misunderstandings, the parties exposed the children to further conflict. Neither assumed any responsibility for this event and each blamed the other. Further, neither party mentioned the children and/or the possible effect on them of seeing their parents engage in such abusive behaviour.
Ms D concluded from this behaviour that the parties appeared to be more focused upon the conflict between them than the interests of the children. She assessed their behaviour as demonstrating a lack of insight and an inability to contain and control their respective emotions. I accept her evidence in this regard.
I do not accept as likely that the father taught K to shoplift.
I also record that, despite her concerns about the father’s parenting capacity, the mother wrote to the father on 4 December 2012 to inform him that she could not “take [K] next Monday night [Mr C] is coming”.
The mother’s use of alcohol, as discussed above, are clearly relevant to an assessment of her parenting capacity. So, too, is the evidence of the serious domestic violence inflected on her by Mr C, a person with whom she continues to share, at least, the location of her residence. In contract, there is nothing to suggest the existence of physical domestic violence in the father’s household.
The mother said that, if the Court determined that the children live with her, she would move away or get Mr C to move out. Until then, she saw no necessity to ask him to leave. Given the mother’s willingness to permit Mr C to return to live on the property after the serious assaults he committed upon her, her evidence that she “needed” him to look after her and support her, that he has remained living on the property despite the mother’s knowledge of his previous offence and her apparent inability to even consider seriously that he may pose any risk to the children as a consequence of his behaviours or past conviction for a sexual offence involving a minor, I am not remotely convinced that the mother would act to remove Mr C in the event the children lived with her.
The mother made it clear during her cross-examination that she did not believe the father was concerned about the children’s welfare at all. I do not accept this. I further do not accept that S is “petrified” of the father but have little difficulty in accepting S has previously manifested anxiety because she is frightened her parents will argue in front of her. After all, that is exactly what they have done.
I accept that the antipathy between the children’s parents is unlikely to abate. That it has reached such an entrenched position is clearly demonstrated by reference to the mother’s confirmation that the confrontation between her and Ms G commenced with Mr C yelling “fucking paedophile” toward the father.

The maturity, sex, lifestyle and background of the children and of either parent and any other characteristics of the children thought relevant

The parties engaged in more significant and more frequent arguments toward the end of their cohabitation. Many of these occurred in front of the children. In fact, as Ms D noted, they engaged in a ‘tussle’ over the children at the front of the Court building on the day of her interview with them in September 2011.
Information provided by the children’s school to Mr B in February 2012 suggests that S is a “lovely kid” whilst K is a “good kid who’s a boy’s boy.”
The Department spoke with Mr W from the children’s school in May 2011. He reported that the children had adequate food, were well dressed and in clean uniforms. They had friends and got along well with others and were engaged and active at lunchtime. Neither child had any absences from school at that time and neither child had made any disclosures. The mother volunteered at tuckshop once a week. There had been a few scenes where both parents had come to collect the children and had both tried to storm into the classroom – both got “a bit physical” with each other and had to be escorted off the grounds. On other occasions, they had been seen talking aggressively with each other. At this time the children were living with the father. He reported that there had been no significant changes in the children.[42]

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents

[42] Exhibit 24g.

The father told Ms M in April 2007 that, while he knew the children loved the mother, she was doing “the wrong thing”: a reference to the extent of her alcohol consumption. At that time, he said he wanted the parents to have a good parental relationship, not argue and be nice to each other. He also wanted the mother to attend Alcoholics Anonymous.
The mother told Ms M in April 2007 that the father had told her that he would leave her alone if she “gave him” K and $70,000.00, that K had always been the father’s favourite child but, as the children enjoyed a close bond, they should not be separated. She proposed that the children live with her and spend time with the father every alternate weekend from Friday to Sunday, half of the school holidays and by telephone as requested.
Ms M recommended, in the April 2007 Family Report, that neither parent place “undue pressure” on the children regarding the quality, character and/or the superiority/inferiority of the other parent, their respective personalities, habits or lifestyle.
These admonitions came to naught given my acceptance of the father’s account of a telephone conversation between the mother and K during which she called Ms G a ‘fucking dog’.
I accept that, during their relationship, the parties engaged in a hostile manner toward each other. I also consider it more likely than not that, toward the end of 2001, the father was physically violent toward the mother.
In December 2006 the mother told the police the father regularly made derogatory comments about her to the children but did not threaten or abuse the children.[43]
[43] Exhibit 23d and Exhibit 23h;
I further accept that, in mid 2008, a neighbour contacted the Department to report that Mr C grabbed K from his bike and dragged him inside and that he had previously acted like this and swore and yelled at the children. .[44]
[44] Exhibit 23i.
I accept that there have been altercations between the parties in front of the children and that, on occasions, each parent has been the instigator of the same. I further accept that, on occasion, such altercations have occurred in public places: for example, on 11 February 2011, the parties had a verbal argument at the school: the mother wanted to give each child a hug and a kiss and the father wanted to take them home with him. Whilst neither resorted to violence, both pushed past the other.[45]

Whether it is preferable to make the order which would be least likely to lead to the institution of further proceedings in relation to the children

[45] Exhibit 23G.

Given the lengthy period during which the parties have litigated about the children, their interactions which have often led to the making of Protection Orders, the extent to which each has been prepared to engage the police and the Department to report and have recorded their concerns about the other and the other’s parenting capacity, the terms of any order seems to me to be highly likely to lead to the institution of further proceedings between the parties.

Any other fact or circumstance that the Court thinks is relevant

Ms M said, in the April 2007 Family Report, that “it would undoubtedly have a positive effect on [the children’s] overall well-being and sense of security” should the parents be able to effectively address and settle the differences between them. She also said “the importance of a harmonious and functional relation between parents and between parents and children cannot be overstated”. Her implicit plan to both parents has gone unheeded.

Summary of Conclusions

I accept Mr B’s evidence that, if the allegations of sexual abuse were put to one side, the father’s household offers the clear cut solution in terms of where it is in the children’s best interests that they live. The allegations of sexual abuse by the father have been “put to one side” in the sense that I have determined them to be without credible foundation.
The consequences for the children of the mother’s likely excessive alcohol consumption and the continued presence of Mr C in her life persuade me that their best interests are met by an order that they live with their father. This will re-unite them under the one roof and will see them under the care of the household determined by Mr B as providing a clear-cut solution.
I accept the submissions made by Counsel for the Independent Children’s Lawyer that the orders should require the mother to refrain from bringing the children into Mr C’s presence. I also accept that the imposition of supervision over the children’s time with the mother is not, for the reasons outlined within his submissions, in the children’s best interests in this particular case.
I am persuaded that orders which provide to the children an opportunity to spend limited time with the mother on a frequent basis, in the absence of Mr C, will provide them with an opportunity to continue their relationship with her in a manner that minimises their exposure to the impacts of her alcohol consumption and the volatile relationship between her and Mr C. This will also ensure that neither child is exposed to Mr C, who has clearly also struggled with alcohol misuse and about whose behaviour toward the children significant unanswered concerns remain.
It will also recognise the reality of the mother’s position – evident during cross-examination – that she does not rule out the possibility that, absent orders to the contrary, Mr C may be present to interact with the children in the future, given her apparent need for his support.

I certify that the preceding two hundred and eighty-two (282) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 June 2015.

Associate:

Date: 29 June 2015

[2014] FamCA 1239

23 May 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness

Remedies

Standing