BLACK & RAYNOR

FAMILY COURT OF AUSTRALIA

BLACK & RAYNOR

[2012] FamCA 1051

FAMILY LAW – CHILDREN – allegation of sexual abuse by the father – question of whether there is an unacceptable risk of the children being exposed to sexual abuse if their time with the father is not supervised – consideration of whether substantial attendance of the father’s time with the children will provide sufficient protection for the children.

FAMILY LAW – CHILD ABUSE - finding that substantial attendance does not expose the children to an unacceptable risk of abuse.

FAMILY LAW – ORDERS – interim parenting orders

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
In the Marriage of B & B (1993) FLC 92-357
M & M (1988) 166 CLR 69

APPLICANT:

Mr Black

RESPONDENT:

Ms Raynor

INDEPENDENT CHILDREN’S LAWYER:

Mr H Stagg Tonkin & Co

FILE NUMBER:

MLC

5842

2008

DATE DELIVERED:

14 December 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

3 - 6 July 2012 & 24 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Werner

SOLICITOR FOR THE APPLICANT:

Rigoli Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Grigg

SOLICITOR FOR THE RESPONDENT:

Perry Weston

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr H Stagg Tonkin & Co

IT IS ORDERED THAT

The children be referred to and known as B and C

UNTIL FURTHER ORDER IT IS ORDERED THAT

The mother have sole parental responsibility for the children of the marriage B born … December 2004 and C born … October 2006.
The children live with the mother
The children spend time and communicate with the father as follows:
a.Each alternate Sunday from 9.00am until 5.00pm;
b.From 10.00am until 4.00pm on Christmas Day 2012; and;
c.From 9.00am to 5.00pm on Father’s Day;
In the event the father’s time with the children coincides with Mother’s Day the father’s time be suspended and in lieu thereof the father spend time with the children from 9.00am until 5.00pm the following Sunday.
For the purposes of these orders the mother shall deliver the children to the residence of the father’s brother at D Street, Suburb E at the commencement of time with the father and the father shall deliver the children to the mother’s home at F Street, Suburb G at the conclusion of that time or as may be otherwise agreed from time to time by the father and the mother.
The father’s parents, his brother Mr H or such other responsible adult as may be agreed in writing by the father and the mother be in substantial attendance during all periods the father spends with the children pursuant to paragraphs (4) and (5) of these orders, save that the father be permitted to deliver the children to the mother’s home or as agreed at the conclusion of his time with the children unaccompanied.
The father be responsible for providing meals for the children during the time they are in his care.
The father be permitted to telephone the children at his expense each Wednesday between 6.00pm and 7.00pm, at first instance the father shall telephone the children on the mother’s landline and if unsuccessful the father shall telephone the children on B’s mobile phone and the mother shall facilitate the calls between the father and the children.
The mother permit the children to telephone the father as they may reasonably request to do so.
The mother inform the father as soon as practicable by email of any significant illness or injury requiring hospitalisation or ongoing treatment, to include but not be limited to details of all medical practitioners consulted, any recommended treatment and medication prescribed.
Within 7 days of the date of this order the mother email to the father contact details of any health professional who is or has provided treatment to the children in respect of any allergy, the details of any diagnosed allergy including any health professional’s recommendations of foods the children are to avoid, the details of the brand of bread which the children eat at home and the father comply with any such recommendation; and
The mother authorise the Principal of the children’s school to provide to the father, at his expenses, copies of school photographs, reports, newsletters and like documents and publications provided to parents of students at the school.
The father be permitted to attend the children’s school to :
a.Attend parent teacher interviews;
b.Consult with the Principal and/or the children’s teachers by appointment; and
c.Attend the office to collect and deliver documents.
The father be permitted to attend any school related or extra curricular events which parents normally attend (whether by invitation or otherwise) including fathers’ days, school concerts, school fetes, sports days, working bees, fundraising events and the like.
The father’s Amended Initiating Application filed 13 July 2012 and the mother’s Amended Response filed 6 July 2011 be otherwise listed for Mention before Justice Macmillan at 9.00am on 18 September 2013 or within 28 days of the father completing treatment with R Healthcare or such other treatment as may be recommended by Dr I, whichever first occurs.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Black & Raynor 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 MELBOURNE

FILE NUMBER: MLC 5842 of 2008

Mr Black

Applicant

And

Ms Raynor

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The relationship between B who is 7 years of age and C who is now 5 years of age and the father has been and continues to be defined by the events of 17 March 2007.
On that date the mother says she walked into the master bedroom where she found the father masturbating. He was holding C, who was six months old at the time, in one arm while masturbating with the other hand. The mother says C was awake and crying which was the reason she entered the room. She deposes that the father initially said that he was changing his pants but that it was obvious to her that that was not the case.
The mother deposes that she was disgusted by what she saw when she walked into the bedroom. The father says that he was ashamed and embarrassed and immediately left the house. He says that he returned approximately two hours later and that he and the mother and her mother openly discussed the incident ultimately deciding that he and the mother would attend counselling. Somewhat surprisingly given the strength of what I observed of the mother’s evidence and the strength of her feelings about this incident and the father generally and notwithstanding that the mother says that thereafter B and C were not left unsupervised in the father’s care, the father and mother continued to live together following this incident.
The father says that he and the mother tried four different counsellors, settling upon J Counselling and attending weekly between March and July 2007. The father believes that in about April 2007 one of the first counsellors whom they had consulted made a notification to the Department of Human Services when they did not return for further counselling as a result of which the matter was investigated by DHS. Both the father and the mother were interviewed by DHS and the mother deposes that she was also contacted by the Police SOCA Unit. No further action was taken by DHS or the Police until 25 June 2007 when the mother contacted DHS following an incident involving B on 23 June 2007 to which I will refer in more detail in these reasons. At that time the mother also discussed with DHS an incident involving B in April 2007. The mother deposed that as a result of contacting DHS she was required to sign an Undertaking providing that she would ensure that the children not live in the same home as the father and would not have further contact with the father until further notice from DHS. The mother also deposed that on 28 June 2007 she received a letter from DHS advising that the Undertaking she had signed on 25 June 2007 had been amended to provide that the father should not have unsupervised contact with B and C.
This Undertaking was presented to the father when he and the mother attended their next counselling session at J Counselling as a result of which the father left the home and went to stay with friends. Thereafter until 25 March 2009, when orders were made by consent in the Federal Magistrates Court at Dandenong and a place became available at K Contact Service, the father’s time with the children was supervised by the mother. The father started spending time with the children at K Contact Service on 27 December 2009 spending time there with the children on approximately 8 occasions.
On 21 April 2010 orders were made by consent that the father’s time with B and C be supervised by the paternal grandparents Mr and Mrs Black senior. Supervision of the father’s time with the children has continued for what is now over 5 years. On 30 August 2010 orders were made by consent making provision for the father’s brother Mr H to supervise the father’s time with the children, however following the release of Mr L’s report on 1 December 2011 orders were made removing Mr H as a possible supervisor. The father currently spends time with the children pursuant to orders made 30 August 2010 each alternate Sunday from 8.30pm to 3.30pm supervised by his parents.
In essence, it is the father’s case that there was no sexual nexus between the fact that he was holding C and masturbating and that he does not pose a risk of sexual, or for that matter physical or emotional, abuse to the children. It is the mother’s case that the children would be exposed to an unacceptable risk of sexual abuse if their time with the father were to be anything but strictly supervised. She opposes the father’s application that he spend time with the children subject to his parents or brother being in substantial attendance.
This is a somewhat unusual case. The facts as to what occurred that day in March 2007 are not in dispute. The crux of the case is what conclusion I should draw based upon those facts as to what, if any, risk of sexual abuse the father poses to the children. Both the father and mother agreed that but for that incident there would probably not have been any litigation. The area of dispute between the father and the mother is primarily whether, pending the father undergoing further therapy, the time he spends with the children should be supervised by his father, mother or his brother Mr H or whether it would be sufficient for one of them to be in substantial attendance as opposed to strict supervision.
The father, the mother and the Independent Children’s Lawyer all agree, albeit for somewhat different reasons, that any parenting orders I make should be interim rather than final orders.
The issues I must determine in relation to this matter are as follows:
·Was the father motivated by paedophilic fantasies or tendencies when he masturbated with C in his arms?
·Is there an unacceptable risk of the children being exposed to sexual abuse if their time with the father is not supervised?
·Does substantial attendance by the father’s mother, father or brother Mr H provide sufficient protection for the children?
·Is there any other risk to the children’s safety or welfare in the father’s care?
·Are B, C and other children who attend their school at risk if the father attends activities at the children’s school and should the father be permitted to attend activities at the children’s school?
The mother also seeks to change the children’s surname from Black to Raynor-Black. This is opposed by the father.

Background

The father was born in 1969 and is presently aged 43 years. He is employed on a full time basis and lives in Suburb M in the State of Victoria.
The mother is aged 43 years having been born in 1968. She not in paid employment and is involved in home duties and caring for the children. She continues to reside in the former matrimonial home at Suburb G.
The father and mother commenced cohabitation in August 2003 when the father moved into the mother’s home. They were married in 2004 and B, their first child, was born in December of that year. C was born in October 2006.

Documents Relied Upon

The applicant father relied on the following documents:

The Outline of Case document filed 6 December 2011;
The further Amended Initiating Application filed 3 July 2012;
Affidavit of the father filed 13 February 2009;
Affidavit of the father filed 20 August 2010;
Affidavit of the father filed 19 August 2011;
Affidavit of the father filed 29 May 2012;
Affidavit of the father’s mother Mrs Black senior filed 8 December 2011;
The Summary of Argument dated 24 July 2012; and
The Minute of Proposed Orders dated 24 July 2012.

The respondent wife relied on the following documents:

The Outline of case document filed 2 December 2011;
The Amended Response filed 5 July 2011;
Affidavit of the mother filed 1 September 2011;
Affidavit of Ms N filed 19 March 2009;
Affidavit of Ms O filed 19 March 2009;
The mother’s written submissions (undated); and
The Minutes of Proposed Orders (undated).

The Independent Children’s Lawyer relied on the following documents:

The Case Outline & Summary filed 7 December 2011;
The K Children’s Contact Service Report filed 19 April 2010;
The Psychiatric Assessment and Report of the father by Dr P filed 20 August 2010;
The Psychiatric Assessment and Report of the mother by Dr P filed 25 August 2010;
The Updated Psychiatric Assessment and Report of the father by Dr P filed 3 November 2011;
The Family Report by Mr L dated 1 December 2011;
The Forensic Psychological Risk Assessment Report by Ms Q dated 12 November 2007; (“Exhibit M1”)
The letter dated 1 May 2012 by Ms Q and filed 10 May 2012;
The Submissions of the ICL (undated); and
The Minute of Proposed Orders (undated).

Legal Principles

The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) relating to children are set out in s60B(1) of the Act as follows:
The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s60B(2). They are that unless it would be contrary to the best interests of a child:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s60CA). In determining what is in that child or children’s best interests the Court must consider both the primary and additional considerations set out in s60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s60CC(4A)).
The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.
There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s61DA). The presumption is rebuttable if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility. The presumption applies when making an interim order unless the Court considers it would not be appropriate for it to be applied when making a parenting order.
When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests and reasonably practical to spend equal time with the parents (s65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practical to spend “substantial and significant time” with each of the parents (s65DAA(2)).
The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the child’s best interests and to make orders that will best promote that child’s best interests. This was clearly stated by the High Court in M & M (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ (at 76) as follows:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance of or rejection of the allegation of sexual abuse on the balance of probabilities.

Unacceptable Risk

In In the Marriage of B & B (1993) FLC 92-357 the Full Court referred to the principles to be applied in cases involving allegations of sexual abuse and said (at 79,778) as follows:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is: “that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” (M & M at 78). In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in allowing access outweighs the possible benefit to them of that access.

Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M & M at 77 that: “In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”.
Thus a finding that an order should not be made for a child to spend time with a parent because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised time is ordered.
It should be noted that the M & M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary” (M & M at 76–77). The overriding consideration in all custody and access decisions is the welfare of the child.

The Evidence

The relevant standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may taking account in applying that standard of proof, the Court must take into account:
a.the nature of the cause of action or defence; and
b.the nature of the subject–matter of the proceeding; and
c.the gravity of the matters alleged.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 Dixon J said as follows:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
It follows, given the serious implications of a finding that sexual abuse has occurred, that the Court should not make a finding that it has occurred unless satisfied to the highest standard.
I have considered all of the evidence and had the benefit of observing the appearance and the demeanour of the father, mother and those witnesses who were required for cross-examination. I have given careful consideration and make my findings having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

The Proposals

The father proposes that until further order the mother have sole parental responsibility for B and C and that they live with the mother.
The father’s case is that he will, as recommended by Dr I, undertake treatment at R Healthcare or such other therapy as may be recommended by Dr I to address concerns indentified by Dr I in the course of his psycho-sexual evaluation. Pending the successful completion of that treatment he seeks interim orders that he be permitted to spend time with the B and C each alternate Sunday from 9.00am to 5.00pm subject to there being a responsible adult in substantial attendance at all times and on the basis that the father be permitted to drive the children to the mother’s home for the purposes of returning the children at the conclusion of the time he spends with them without having to be accompanied by another adult. In the event that Mother’s Day coincides with his time with the children he proposes that his time be suspended and that he have a make-up day the following weekend. The father also seeks an order that he be permitted to telephone the children at any time prior to 6.00pm on either the mother’s landline or B’s mobile, that the mother permit the children to take the call and that she permit the children to telephone the father at any time they reasonably request to do so.
He seeks further time with the children from 10.00am to 5.00pm on Christmas Day 2012 and from 10.00am to 5.00pm on Boxing Day 2013.
The father seeks orders requiring the mother to inform him as soon as practicable by email of any health condition concerning the children which requires hospitalisation or ongoing medical treatment, including any condition that requires prescribed medication. The father also seeks an order that within 7 days of my making orders the mother provide him, by email, with details of any health professional who has provided treatment to the children in respect of any allergy, the brand of bread which the children eat at home and bank account details to enable him to pay the child support by electronic funds transfer. It is his case that the mother should be restrained from providing the children with food to eat when they are spending time with him.
The father seeks orders permitting him to attend the children’s parent teacher interviews, to consult with the principal and the children’s teachers by appointment and to attend at the school office to collect and deliver documents. He also wishes to attend any school related extra-curricular events which parents normally attend (whether by invitation or otherwise) such as father’s days, school concerts, school sports days, school fetes, working bees, fund raising events and the like without the need for another responsible adult to accompany him.
Finally the father seeks a final order that the children be known and referred to by his surname.
The mother conceded that it would be appropriate in this case for me to make interim orders. The mother’s case is that those orders should include an order that she have sole parental responsibility for the children and that they should live with her and spend time with the father each alternate Sunday from 9.00am to 4.00pm. The mother did concede that whilst her preferred option was that the children’s time with the father conclude at 4.00pm each alternate Sunday that she could live with it concluding at 5.00pm.
The mother proposed that if the father’s time with the children fell on the middle Sunday of the school term holidays, such time be suspended and the father spend time in lieu with the children on the first Sunday of the school term.
The mother proposed that the father spend time with the children on special occasions as follows:
·    For at least 3 ½ hours on the children’s birthdays if they fall on a non-school day and in default of agreement from 9.00am until 12.30pm;
·    On Father’s Day from 9.00am until 4.00pm;
·    From 9.00am until 4.00pm on 26 December 2012 and in each alternate year thereafter; and
·    From 10.00am until 3.30pm on 25 December 2012 and each alternate year thereafter. I have assumed that this was intended to be Christmas Day 2013 not 2012.
The mother also proposed that if the children’s birthdays coincide with the father’s time with the children that time conclude at 12.30pm that day and that if it coincides with either Mother’s Day or Christmas Day then it be suspended.
The mother also sought an order that the father’s time with the children be suspended in the event that the children or either of them have a social commitment (such as a birthday party) or an extra-curricular activity which coincided with his time.
The mother proposed that the father be permitted to attend a separate out of school hours parent teacher interview but that he be otherwise restrained from attending at the children’s school within school hours or at any time the children would be expected to be in attendance or attending any school related event, whether or not on school grounds, that the children would be reasonably expected to attend save for any school concert.
Although the mother’s proposal was somewhat more detailed than the father’s and proposes somewhat less time with the children than his proposal what sets the mother’s proposal apart from the father’s is the requirement that the time he spends with the children should continue to be supervised by an appropriate person. She no longer takes exception to the paternal grandparents or the father’s brother acting as supervisors.
The ICL submitted that the time the father spends with the children should continue to be supervised pending the completion of 12 months treatment at R Healthcare and that the level of supervision should be reviewed upon the father completing that treatment at R Healthcare.

Evidence of the Experts
Ms Q

Ms Q is a Senior Consultant Forensic Psychologist working in private practice. In 2007 she carried out an assessment of the father and on 12 November 2007 released a Forensic Psychological Risk Assessment Report.
She described not having any evidence to indicate that the father had any thought disorder or mental health issues and that although he initially appeared nervous, he “...seemed willing to engage in the assessment process.”
She carried out a number of tests to assess the likely risk of the father sexually offending concluding that he fell into the low risk category. It was her opinion based upon what the father told her and her clinical observations that the father
… under reports his interest in sexual deviance. Furthermore he appears to have a pattern of entering intimate relationships in which he feels helpless and eventually, persecuted by his partner. He also holds attitudes that are supportive of inappropriate sexual behaviour and attitudes towards women that would not assist him in developing a meaningful intimate relationship. Most importantly, [Mr Black] fails to recognise the concern about his behaviour. [Mr Black] has not developed assertion skills within the confines of an intimate relationship and appears to have little insight into the impact of his behaviour on intimacy within the relationship.
She concluded that the father appeared “…to have some motivation to address his offending behaviour… he has supervised access to his children, and his family are aware of the charges and have remained supportive.” Ms Q ultimately concluded that consideration of the clinical evidence of the father’s case “...leads the writer to consider that he represents a medium risk of sexual re-offending against his children”. It was her opinion at that time that while the father “appears to represent a medium risk of sexual offending against his children this risk is contained by the presence of the other care givers who serve to monitor and to act protectively towards the children.” She recommended that the father “… participate in offence specific intervention for men who will most likely not be charged for the behaviour with which notification was made to DHS.”
At the time of her assessment of the father Ms Q was assisting with the development of a joint venture between DHS and the Department of Justice Sex Offender Program and the assessment of potential participants in the proposed program. It was this program that she recommended the father should participate in however that program was disbanded. As a result of the father’s motivation to seek treatment, Ms Q was requested to provide treatment on an individual basis funded by the Department of Justice. The father attended nine individual sessions with Ms Q between 8 January 2008 and 26 June 2008.
Ms Q said that a cognitive treatment plan was developed for the father and the sessions with Ms Q ended when he was considered to have developed a viable safety plan, “… which was said to contain identified risk at that time” Ms Q had no further contact with the father after this date. She was not required for cross-examination.
The mother said that in March 2008 she was contacted by DHS, after she says, they were contacted by the father and advised by him that Ms Q had downgraded his risk assessment from medium to low. The mother says that when she contacted Ms Q she was advised that she had not changed her view that the father presented a medium risk of reoffending. The mother said that it was clear that the father had attempted to “misrepresent” Ms Q’s assessment and report findings to DHS. The import of her evidence was that this demonstrated the father’s lack of insight into his behaviour.
The father acknowledged that he had approached DHS. He said following treatment with Ms Q “a plan had been prepared which had it been followed, would have “minimised” the risks perceived or real to the children” and would have allowed the conditions for him to spend time with the children to be relaxed. He was unable to say how DHS may have presented this information to the mother or what discussions she may have had with Ms Q.
The father’s evidence is consistent with Ms Q’s evidence that her sessions with the father ended when he was considered to have developed a “viable safety plan”. I am not satisfied on the balance of probabilities that this was a deliberate attempt by the father to mislead either the mother or DHS.

Dr P

Pursuant to the orders made 21 April 2010 Dr P was requested to prepare a psychiatric assessment of the both the father and the mother. He saw the mother on 6 August 2010. He concluded that from a psychiatric viewpoint the mother presented with “...mild situational anxiety, and depressive condition.” He described her as having a “stable maternal temperament” and said that there were some indications of “…rather rigid disposition” but that in general terms her personality was functioning within normal average limits.
Dr P saw the father on 4 August 2010. He described the father as having a somewhat florid facial complexion and he said that he wondered whether his red face was “an indication of underlying feelings of anger when he talked about his ex-wife.” He said that he was “… someone who had a personality of quite rigid, and obsessive temperament with definite ideas of his own. He seemed however co-operative in the interview. There were indications of anxiety, and depression, anhedonia, and subjective distress. He was emotionally a little labile, and rather irritable, and angry, particularly when talking about his ex-wife. His behaviour showed a man who had raised anxiety levels, was tense, and who now had some problems with his confidence levels.”
Dr P said in summary that the father did indicate to him that the incident with C did show inappropriate behaviour but denied any sexual misbehaviour with B. He said he presented as “someone who does have a slightly odd manner, which is probably a combination of his height, and that he probably lacks some social skills.” This accords with my observations of the father’s presentation in the witness box.
He said that from a psychiatric viewpoint he presented as someone who had “...personality weaknesses which might fall short of a diagnosable personality disorder” and that he had some situational anxiety. It was his conclusion at that time that the father’s personality difficulties were likely to be a long term issue but that the situational anxiety would be likely to lessen with the finalisation of these proceedings. He thought at that time that the father would benefit from an anger management course and perhaps from a post separation parenting course but that he did not think treatment with a psychiatrist or psychologist would be of much benefit to the father.
His view was that from a psychiatric viewpoint alone the father “…should have supervised access over a considerable period of time. If at some time in the future he seeks unsupervised access, then a careful revaluation of his psychiatric state will need to be undertaken. In the meantime, little can be given to him in the way of effective psychiatric treatment. It may be useful for him to attend an anger management course or a post parenting course at this stage, but that is the only treatment which could prove to be of any value.” He also opined that it was “…hard to visualise a time when unsupervised access from the psychiatric viewpoint would be deemed to be appropriate.”
Dr P provided an updated report in relation to the father after seeing him again for an hour on 21 September 2011. He confirmed his earlier diagnosis that the father has some personality weaknesses which fell short of a diagnosable personality disorder but that the father was “..someone with quite rigid temperament, and definite ideas of his own” and someone who “seemed prone to being angry”. He also said that there was still some situational anxiety over these proceedings. He again said that he doubted whether psychotherapy would have much to offer the father given his issues.
He concluded that there were at that time “…grounds for continued supervised access”. However he did consider that there might be grounds for the father “...having contact on his own with his children just for the return journey if that is in fact, something which can be arranged, and that he merely leaves the supervision situation, and returns without delay, to drop the children off.”

The Family Consultant – Mr L

Mr L interviewed the parties and the children on 16 September 2011 and interviewed Mr H, the father’s brother on 29 September 2011. He prepared a report which was dated 2 December 2011. It was clear from his report that he had perused the reports prepared by Dr P, the Forensic Psychological Risk Assessment prepared by Ms Q and dated 12 November 2007 and the subpoenaed material from both DHS and Vic Pysch Plus.
Mr L concluded that the father “...poses a potential risk to the safety of the children in the event he were to spend any unsupervised time with them now or in the future” and that he would be “…unable to support any future parenting arrangements whereby [Mr Black] would be in a position to safely spend any unsupervised time with the children”. It was his opinion that long-term supervised time was necessary, appropriate and in the best interests of the children. In reaching his conclusion he relied upon the professional opinions of both Ms Q and Dr P.
Until the release of Mr L’s report the time the father was spending with the children was supervised by his parents or his brother Mr H. Mr L recommended that they should no longer supervise that time. He recommended that the father’s time with the children should “...occur only on a strictly supervised basis in the long-term and such supervision to be provided by family members who have acknowledged the risk to the children, have a clear understanding of the behaviours by [Mr Black], are prepared to place the children’s safety as paramount and who have a constructive relationship with [Ms Raynor].” He said that “…it is important that any other proposed supervisor appreciates that there is just cause for supervision of the children’s time with their father” and that in the event that there was no suitable family member to supervise that it might be facilitated on a private basis or through a community agency. It was his view that the children’s time with the father would need to be supervised “…until the children are much older and able to self-protect, most likely around the time of middle adolescence.” The father’s parents went to significant lengths to educate themselves about the risk of sexual abuse in order to continue their supervision of the father’s time with the children.

Dr I

On 15 May 2012 I made an order for the preparation of a psychosexual assessment of the father. The report dated 14 June 2012 was prepared by Dr I a Clinical and Forensic Psychologist in private practice. His assessment and diagnosis was based upon a combination of clinical interview, structured clinical interview, historical information, behavioural evaluation and psychometric evaluation as required.
Dr I made the following observations:
·psychological evaluation showed no evidence of formal psychological disorder;
·that the father’s account of masturbating with C in his arms “...raises questions about his self-perception and ability to perceive and have empathy with the concerns of others.”
·that his explanation did not account for his behaviour;
·that he is aware that his lack of insight into his behaviour at the time is a flaw; and
·that it appears that the father has had appropriate intervention, as much as is possible in relation to this issue

He concluded that “...formal evaluation via the Sexual Violent Risk assessment (SVR-20) showed [Mr Black] to be in the Low risk range of sexual offending, similarly for the Historical, Clinical and Risk Management (HCR-20) assessment with respect to violence”, but that despite those results it was Dr I’s view that “..the nature of the incident in question raises significant concerns, and his presentation and explanation of that incident do not resolve those concerns.” For that reason he recommended that the father undertake further treatment “via [R Healthcare]” to address the issue.
He recommended that despite his concerns an increase in the father’s time with the children appeared to be reasonable and “...that an order that required another responsible adult to be present “in substantial attendance” while he cared for his children would be more appropriate than [Mr Black] having time without supervision or with formal supervision”. He further recommended that the move to time without another adult being present should not occur until completion of successful treatment and further assessment of the father’s progress if there is uncertainty about the success of the treatment.

Was the father motivated by paedophilic fantasies or tendencies when he
masturbated with C in his arms?

The father has consistently said that there was no sexual nexus between his masturbating and the fact that he was holding C at the time. He says that the marriage had deteriorated, that he and the mother had not had a sexual relationship since C had been conceived and that at that time he was masturbating approximately twice per week, usually sneaking out of bed when the mother was asleep. He said his decision to masturbate on this occasion was opportunistic and that C was not part of any “fantasy” connected to either his decision to masturbate or the masturbation itself. The mother on the other hand said that she could not imagine that the father’s actions could not have had a sexual connection to C.
Counsel for the mother submitted that the father had not provided any credible explanation for his actions and that the only available explanation for the father’s behaviour was that he was sexually stimulated by having C in his arms.
The mother’s Counsel relied upon the fact that the father’s version of what had occurred and the motivation for his actions had varied over time and that therefore I should have little confidence in his explanation. He referred me to the following explanations given by the father:
·His explanation to the mother’s sister Ms O shortly after the incident was that he “was horny as hell” and that later that same day he said that “...he thought he could get away with it”.
·In his affidavit sworn 13 February 2009 the father deposed that he “could still not recall how it happened, but I ended up in our bedroom, standing near our bed, holding my daughter in my arms while masturbating with my other hand.”
·When the father attended upon Dr P in September 2011 for the preparation of Dr P’s second report he indicated to Dr P “...that his fantasies when masturbating were of having a willing type of adult partner in her twenties or thirties. She would be slim, but not skinny, and neither flat chested or with huge breasts.”
·Mr L, the Family Consultant in his report dated 1 December 2011 reported that the father had “…openly acknowledged the allegations that he had masturbated whilst holding [C] when she was an infant” and that he had explained “…that due to ongoing relationship difficulties he and [Ms. Raynor] had not been intimate in over a year and that he decided to masturbate on that occasion”. He admitted that “...in hindsight, this was not the wisest of decisions, but stressed in no uncertain terms that he had not maintained any sexual desires regarding children”; and
·in his affidavit sworn 18 August 2011 the father deposed that he was walking up and down the hallway trying to put C to sleep and that he “...was dreaming about what it would be like to be with a woman who appreciated and loved me. These dreams became a fantasy, and I ended up in the master bedroom, standing next to the bed, holding my daughter asleep in my left arm while I masturbated with my other hand. I did not abuse my daughter in any way, and she was not the subject of my fantasy”
I do not accept, as submitted by the mother’s Counsel, that the various statements the father has made in his affidavits or to the various expert witnesses are inconsistent or even if they were that I should therefore conclude that he was sexually stimulated at the time because he was holding C. In my view as suggested by Dr I his answers would be likely to depend to a large extent upon what he was asked on each occasion and none of his answers in any way suggest that he was sexually stimulated by having C in his arms.
Dr P was asked in cross-examination whether he thought the father was motivated by paedophilic fantasies. He said that he thought it was “… hard to think of another explanation.” He also conceded that it would come down to whether I believed the father’s explanation and that if I were to accept the father’s explanation that his recommendation could not stand. He also conceded that if, having heard all the evidence, I were to accept that the father had developed some insight into his behaviour that would diminish his concerns.
Dr I was also cross-examined about the father’s explanations for his actions that day and Dr P’s evidence that there was likely to be a sexual connection between his holding C and masturbating. It was his opinion that it was “...not possible to necessarily say that’s the case”. Although he did not rule it out as a possibility he said in response to a question from Counsel for the ICL that he
..certainly hadn’t come to a conclusion that there’s paedophilic tendencies, because I don’t think that there – I don’t think that there’s positive evidence of it… We can exclude the other explanations as that they’re not reasonable. As I’ve indicated, that at the very least what this indicated is that there is a boundary concern that the father’s preparedness to engage in the - in that behaviour represents an inability for him to out an appropriate boundary around adult sexuality in this situation. Whether or not we can then say, well, that because we can’t find any other explanation, therefore that means that there’s paedophilic concerns – that’s a – you may say it is logic, but it’s a leap of logic, and it’s one that I am reluctant to take, because unless there’s active evidence of that, then it’s difficult from a psychological point of view. I understand from a legal point of view you may be saying, well, logically speaking therefore is indeed, and I understand that position but from a psychological point of view, I have no active evidence of it.
Dr I also said that it would be of greater concern for example if C had been unclothed or lying in bed and that the age of the child in this case might also be significant. He gave as an example a parallel situation where parents of young children may engage in sexual activity with their children in the same room. This evidence has some force.
Dr I then said, when asked what he meant by positive evidence that “...the kind of thing that we would be looking for is other forms of sexual activity which would show vulnerability to paedophilic tendencies such as pornography use with children… other offences and so on...but you would be expecting to see in general more than one behaviour. You would be expecting to see other things, other charges, other incidents, people being concerned, other things come up which would suggest a pattern of behaviour… normally in psycho–sexual evaluations, we’re looking for a pattern of behaviours and other factors which tell us this is a person who is going to go on and offend.”
The mother asserts that there have been two other incidents of what she considers may have been sexual behaviour by the father involving B. She also describes the father inappropriately kissing C both prior to and following separation and she expressed concern to Mr L that “..within the restrictions of the current supervised arrangements [Mr Black] significantly favours [C], provides her with an inordinate amount of attention to the extent that at times [B] is ignored”.
The first of these examples is an incident involving B which occurred on 23 June 2007 approximately 3 months after the incident with C and which led to the mother contacting DHS and ultimately the parties’ separation. The mother says that she woke during the night “…after hearing [B] crying, to find the husband in [B’s] bedroom, with his head under the child’s doona, examining the child with what she said appeared to be a torch. She said [B] was very distressed and pushing the husband away, saying “no Daddy, no, hurts”.” She said she “...went to his room straight away and realised the baby monitor in [B’s] room had been turned off” and that when she asked “...the husband what he was doing, he told me that [B’s] arm was hurting because his pyjamas were too tight”. She said she asked B if his arm was hurting and he told her that it was not.
The father says that he had been in the habit of going for a walk as a way of reducing stress and to get some time to himself. On this particular evening when he returned to the house it was in darkness and the front door was deadlocked and so he entered the house through the rear sliding door trying not to disturb the mother or the children. He said he heard B crying in his room, which was adjacent to the back door, so he went to check on him. B was awake and said “Daddy, it hurts”. The father said that he used the screen of his mobile phone for light rather than turning on the light to ascertain what was wrong. He said that B was curled up in a ball and his pyjamas were twisted around his legs. He said that he was still trying to make B comfortable when the mother stormed in screaming “what the hell do you think you are doing” and that when he tried to tell her that B had been distressed she became aggressive and started accusing him of interfering with B calling him a “filthy fucking idiot” and a jerk in a loud and vehement voice, upsetting B.
It was submitted that it was significant that the father had not turned on the light when he went into B’s room on 23 June 2007. As I pointed out to the mother’s Counsel during his cross-examination of the father, I did not consider that this was particularly concerning as I could well imagine leaving the light off to avoid further waking up a child who might otherwise be easily put back to sleep.
The father was also cross-examined about why he would have gone into B’s bedroom given what had occurred with C a matter of months before. Mr Eidelson described his actions as “not a good call”. The father readily acknowledged that it may not have been surprising that the mother would jump to the worst conclusion, however it is also clear that the parties were attending counselling and at least until that point of time there was some prospect that the marriage would continue. DHS had investigated the matter, the Police had been involved and no action had been taken. The father also said that he was not aware that the mother was as she said, supervising his time with the children. In those circumstances I do not find it that surprising that the father would continue to be involved in the children’s care.
The other incident also involving B occurred in April 2007. The mother said she woke during the night to find B’s infant monitor turned off. When she went to B’s room she found that the father had stripped the linen off B’s bed because he said B’s nappy had leaked. She said she found that it was completely dry. The father deposed that the sheets on B’s bed were damp which was why he changed them. The mother also advised DHS of this incident when she contacted them following the incident on the 23 June 2007.
The mother, her mother and her sister also describe what they say are incidents of the father inappropriately kissing C. The mother says that she noticed that “…when he kissed [C] the husband smothered her face and kissed her in a way that I considered to be inappropriately adult”. She said that there was one occasion after separation when she was supervising the father’s time with C that she asked him to stop kissing C. She deposed that although the father was initially dismissive he did stop after a second request but continued to smother C’s face with kisses whenever she turned her back. She describes an incident in October 2007 when she took the children to the paternal grandparent’s home for C’s birthday celebration. The mother says that when she strapped C into the car and went to collect B the father took the opportunity to get into the car and smothered C with kisses. She says that when she returned the father leapt out of the car. She also deposed that she was so concerned that she contacted DHS, SECASA and the Department of Corrections and told them that she was so concerned about the father’s behaviour that she considered it appropriate to stop the father’s visits until he commenced the “Choose to Change program”.
The father denied kissing C inappropriately and said that as a young child “..she would giggle and squirm when I kissed her on the cheek with loud squeaking noises” and that it was his “way of making her laugh.” He says, in relation to the incident on the 28 October 2007, that he had accompanied the mother to the garage while she strapped C into her car seat and back into the unit when she went to collect B. The father deposes that having said their goodbyes he went back to the garage thinking that the mother, B and his parents were behind him. He thought C, who had been left alone in the car, might be upset so he knelt down beside the open door of the passenger seat and engaged her attention with tickles and blowing kisses. He denied as alleged by the mother that he was in the car with C.
He also says that the mother never complained about his behaviour and he was unaware of her concerns until he was contacted by Mr S, the co-ordinator of the Choose to Change program.
Both the maternal grandmother, Ms N and the mother’s step-sister Ms O describe the father kissing C in a way they considered both unnatural and inappropriate. Ms O said that on 29 March 2007 she observed the father kissing C in a manner she considered both “inappropriate and sexualised” and the said that she left the room because she found the incident “distasteful and inappropriate”. Ms N described the father kissing C in a manner she described as “creepy” on approximately a dozen times both before and after separation. Both Ms N and Ms O conceded that they had never challenged the father’s behaviour. Both Ms N and Ms O were of the view that the father is a paedophile. In those circumstances it is inconceivable in my view, in so far as they are describing the father’s behaviour after the incident of 17 March 2007, that they would not have challenged the father’s behaviour if it was as bad as they would have the Court accept. I do not have a great deal of confidence in their evidence given that they did not.
Mr L in his report said that he was told by C that when she is spending time with the father they often have a wrestle in the lounge room with her cousins and that “…her father tries to push them off and tickles her on her shoulder, chest or back” She also said that her uncle and grandparents are not present when this occurs. The father said that the children were often very wound up and excited when they arrived at his brother’s home and on a couple of occasions were wrestling with their older cousins. The father said that on one occasion C was climbing up on the back of the couch and throwing herself into the middle of the other children. He decided he needed to step in and calm them all down and tickled the children to get their attention rather than simply grabbing them. Save and except that the father has always insisted that either his parents or his brother have strictly supervised his time with the children his version of this incident and C’s description of what occurred are consistent.
The criticism of the father hinged on the fact that this was in breach of the safety plan developed with Ms Q. It was also put to him that his decision to assume responsibility for his nieces at a time when he was facing serious allegations demonstrated a lack of judgement on his part.
It is significant in my view that the safety plan was developed in mid 2008 and it is now 2012. It is clear from Ms Q’s evidence that the safety plan was developed on the basis of the identified risk at the time. Ms Q also pointed out that “…risk assessment requires thorough examination of current stable and dynamic risk factors” and she was very clear that not having seen the father since June 2008 she could not provide any opinion in regard to the current risk. There is no evidence in this case which would enable me to assess the likely risk at the time the father tickled the children or for that matter was responsible for the care of his nieces or assess whether the safety plan would have been appropriate for the level of risk, if any, at those times. It follows that it is not possible to conclude that the father either acted inappropriately or showed a lack of judgement in the context of that safety plan.
Finally the mother reported to Mr L that the father was treating B and C quite differently, doting on C and ignoring B. The example that she provided was that on the previous Father’s Day, the father only picked up C and took her inside at the commencement of their time together and left B standing outside. She also told Mr L “...that she needs to continually encourage [B] to attend visits so that he can spend time with his uncle and have a positive male role model around”. Apart from the fact that this is consistent with my observations of her lack of support for the father’s relationship with the children it is also clear from what she has told Mr L that she is not reporting what she has observed but rather drawing her own conclusions about the father’s behaviour based upon what she is told by the children.
Mr L reported B telling him that he had previously felt sad because the father played with C more but that he had telephoned his mother and told her how he felt and his parents had sorted things out and that the father now plays with them equally. Mr L observed that:
At the commencement of this session, [Mr Black] entered the child care room and very casually said, “Hello” to the children and helped set up a computer game for [B]. Afterwards he said that he would play with [C] for a while, but she seems somewhat reserved and therefore he returned to [B] and played with him a bit longer.
[Mr Black] then asked [C] what she had been doing earlier and together they sat at a small table whilst [C] drew a picture. [Mr Black] and [C] appeared quite comfortable in one another’s company and she seemed to revel in her father’s attention. During the time [Mr Black] played with [C], [B] appeared content to play on a computer game by himself with no interaction or discussion with his father. After a short period of time, [Mr Black] attempted to play with [B] on the computer game, but then returned to drawing with [C].
[Mr Black] predominantly interacted with [C] whilst [B] played on the computer game by himself. It did not appear that [Mr Black] made much of an effort to share his time or attention between the children or attempted to engage both of them in any interactions.
Mr L ultimately concluded as follows:
During discussions with [Ms. Raynor] she expressed concern that within the restrictions of the current supervised arrangements [Mr. Black] significantly favours [C], provides her with an inordinate amount of attention to the extent that [B] at times is ignored. The observed interactions between [Mr. Black] and both children certainly highlighted this concern as [Mr. Black] appeared to happily let [B] play on the computer game by himself whilst he interacted with [C]. In this Family Consultant’s opinion, this raises some concern in light of the psycho-sexual risk assessment and given that [Mr. Black’s] sexual behaviour occurred whilst holding [C], hence heightening the concerns.

The significant issue in this case is not how much time, at least in the interim, that the children should spend with the father, but whether that time should be supervised or whether the substantial attendance of a responsible adult is sufficient. In the circumstances I do not consider that the wishes of the children as to whether they should spend more or less time with each of their parents are particularly relevant to the decision I must make.

(b) the nature of the relationship of the child with each of the child’s parents and other persons;

Mr L described B as conveying a balanced view of his mother and his father identifying both their positive and negative characteristics. He said that that there was nothing about his father that he did not like
Although he described on occasions being bored at his grandparents home because there is not much to do he also described his visits at his uncle’s home as “pretty good” and described in positive terms the various activities he does with his father.
C was also able to describe positive qualities of both her father and mother and described some of her activities when she is in the father’s care. She told Mr L that there was nothing she did not like or wished was different about her father and her mother.
I am left with the impression of children who have an affectionate, loving and well established relationship with both their parents.

(c) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
(f) the capacity of each of the child’s parents or any other person to provide for the needs of the child, including emotional and intellectual needs; and
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
(4) without limiting paragraphs 3(c) and (i) the extent to which each of the child’s parents has fulfilled or failed to fulfil, his or her responsibilities as a parent and in particularly, the extent to which the child’s parents have taken or failed to take the opportunity or facilitated or failed to facilitate the other parent participating in decision making about major long term issues and spending time or communicating with the child

The father has now been spending time with the children on a supervised basis for over 5 years. Notwithstanding what he clearly finds to be the frustrating limitations of supervision on his time with the children he has maintained his commitment to the children and to the ongoing development of this relationship with them.
The father, whilst acknowledging his difficult relationship with the mother, was able to acknowledge that she was “an attentive mother, engaged with the children” and that in his view “she scores well as a mother”.
The mother on the other hand found it almost impossible to concede anything positive about the father or his relationship with the children. She acknowledged when it was put to her by Mr Eidelson that her position had hardened over time. To the mother’s credit she has, notwithstanding the strength of her views about the father, facilitated his time with the children pursuant to the orders.
Mr L said that C had told him that the father takes her outside to ride her bike and that she sometimes rides it on the road, although “she knows that such is not right”. This is consistent with the mother’s complaint and concerns about the father’s parenting and is not the sort of statement one would expect unprompted from a child of C’s age. Mr L says that B told him that neither or his parents speaks negatively or said anything about the other in his presence. Both the father and mother are to be commended for this however as demonstrated by C’s comments it is not necessary for one parents negative views of the other parent to be expressed directly for those views to undermine and have a negative impact on the other parent’s relationship with the child. I have no doubt that the mother loves the children and would not consciously want to cause them any harm however in my view it is almost inevitable that the children will come to understand even if they do not already do so how the mother feels about the father. This certainly has the potential to negatively impact upon the children’s relationship with the father and their welfare generally.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the other parent or any other person

The orders that are proposed do not involve any substantial changes in the children’s circumstances or result in any separation from either of their parents of any other significant person in their lives.

(e) the practical difficulty and expense of the child spending with and communicating with a parent and how that difficulty and expense will affect the child’s rights to maintain a personal relationship and contact with both parents on a regular basis:

This is not an issue in this case.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other relevant characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait islander child;

These considerations are not an issue in this case;

(j)any family violence involving the child or a member of the child’s family;
(k) any final or contested family violence order that applies to the child or a member of the child’s family:

The mother deposes that there was an incident at the former matrimonial home on 29 July 2007 when the father came to collect his belongings. The mother says that the father was screaming at her and making a scene as a result of which she contacted the Police. As a result of this incident the mother applied for an intervention order. On 17 August 2007 the father consented to the order without admissions.
There is no evidence of any more recent incidents of family violence that would lead me to conclude that family violence is likely to be an issue in this case.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

It is proposed by both parties and the ICL that I make interim orders in this case. Whilst it is generally preferable to make final orders and avoid the necessity for further proceedings it would in the circumstances of this case be difficult to do so. The recommendation of Dr I who has seen the father most recently is that the father should undergo further therapy with R Healthcare. Any move to the father spending unsupervised time with the children is predicated upon successful treatment.
I could not on the basis of the evidence before me make orders at this time for unsupervised time as sought by the father and in those circumstances even if I were to make final orders it is almost inevitable that the father would, at some time in the not too distant future, subject to having completed the recommended therapy, seek unsupervised time and for that matter more extended time with the children including overnight time.
The children already have what is described as a meaningful relationship with the father and subject to the Court being satisfied that it is in their best interests to do so one would expect that they would benefit from further time with the father and time that is not constrained in any way by the necessity for another responsible adult to be in attendance. That being the case I am satisfied that it is in the children’s best interests in this case to make interim order allowing for that possibility at some time in the future.

Parental Responsibility

I am being asked in this case to make parenting orders. In these circumstances s61DA requires me to apply the presumption of equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child or family violence or that the Court is satisfied that it would not be in the best interests of the child for that child’s parents to have equal shared parental responsibility.
The mother in this case seeks sole parental responsibility for the children. The father consents to the mother having sole parental responsibility in the interim. I am satisfied that in this case at least in the interim that the relationship between these parties and in particular the mother’s attitude to the father is not conducive to them being able to properly exercise the responsibilities they would have if they were to have equal shared parental responsibility. This is most clearly demonstrated by the mother’s evidence about the father’s lack of knowledge of and interest in the children’s activities in circumstances where it is clear she made no attempt and could see no purpose in keeping him advised of those activities. The mother deposes that she is “…prepared to consult the father in respect of important decisions affecting the children’s long term care welfare and development and would take into consideration his views”. She also said that she is prepared “...to continue providing the husband all important information regarding [B] and [C’s] welfare and development”. Her evidence does not give me any confidence that she has done so to date or is likely to do so in the future. Although I propose to make an interim order for sole parental responsibility it does not follow that I or any Judge hearing the matter will necessarily make that order on a final basis and the Act requires the Court to disregard the order for parental responsibility made on an interim basis and reconsider the issue. I also propose to make an order requiring the mother to keep the father advised of issues with respect to the children’s welfare.
As I propose to make an interim order by consent that the mother have sole parental responsibility for the children I am not required to consider whether it is in the children’s best interests and reasonably practical to spend equal or substantial time with the father. I am however required to make orders that are in their best interests.

The change of name

The mother wishes to change the children’s surname to Raynor-Black. This is opposed by the father and was not supported by the ICL.
The mother deposed that as she and the father separated when the children were very young they have no memory of living together as a family and do not recognise the name “Black” as representative of their whole family. She says that B in particular recognises that his name is different from hers and has told her on many occasions that he wants the same name. She also deposed that her only interest “...is that they feel content within themselves that they identify with their whole family as most of their peers at school do”.
In cross-examination the mother said that she preferred Raynor-Black because when she remarried she “...had friends trying to find me in the telephone book and they couldn’t so if it is [Raynor- Black] their friends can find me in the telephone book knowing my name”
The other reason she gave was that the children wanted to change their surname to Raynor-Black because lots of their friends have hyphenated names.
It was submitted by Mr Werner that the reasons given by the mother in the witness box were “just nonsense”. I tend to agree. When confronted with what appeared to be obvious flaws in her explanations she was searching for answers to support her case. One example was when having said it was something the children wanted she then said that she doesn’t use surnames at all and that C identifies herself as C and not by her surname. Another example is that having said that she wanted to change the children’s name to a hyphenated name because that is what the children wanted she said that it would not be appropriate, even if they said that is what they wanted, to change their surname to Raynor.
Finally in re-examination the mother said that her only reason for wanting a name change was because “… at Auskick [B] is registered as [B Black], a year and a half ago we had a match a little boy had a heart murmur we had to call an ambulance and nobody could find his parent I am very concerned if something happened to [B] and they don’t know he is [Raynor] how do they find his parent”. She told me that she did go to Auskick with B but that on this occasion the “... parent of the one who had the heart attack was in the canteen at the time so nobody knew who his parent was”. The mother was quite emotional when she gave this answer however it is not really a logical answer as to why the children’s name should be changed. As submitted by Mr Werner many children have different names to their parents or for example they may be on occasions in the care of a step parent. There is no evidence that in the mother’s example the problem arose because of the name of the child and in fact the mother’s own evidence suggests that the problem arose because the child’s parent was in the canteen.
I am satisfied that given the very strongly held views of the mother about the father and her evidence in relation to this issue that this application has more to do with her feelings than what the children want or need.
I am also not satisfied that a change of name is necessary to give these children a sense of their identity with their whole family. In the vast majority of cases children are known by the name of their father and not their mother. It cannot be said in those circumstances that a child will have no sense of their identity or the identity of their extended family.
In all of the circumstances I am not satisfied on the evidence before me that there is any basis for changing the children’s names or that it would be in their best interests to do so and I propose to make the order sought by the father on a final basis.

Conclusion

Both parties ultimately sought orders which differed markedly from the basis upon which they had opened their cases. Both would appear to have reflected on the evidence in the case. As I have previously indicated the mother opened her case on the basis that the time the father spends with the children should be reduced from each alternate Sunday from 8.30am until 4.30pm to each alternate Sunday from 10.00am until 3.30pm. At the conclusion of the case she proposed that the hours should be from 9.00am until 4.00pm each alternate Sunday and ultimately conceded that it could conclude at 5.00pm. She also withdrew her objection to the paternal grandparents and the father’s brother supervising the father’s time with the children.
For the reasons I have already discussed I propose to make interim orders that the father spend time with the children each alternate Sunday from 9.00am to 5.00pm with either one of the paternal grandparents, the father’s brother Mr H or such other responsible adult as the parties may agree upon being in substantial attendance during the time the children spend with the father save and except when the father is returning the children at the conclusion of his time with them.
Despite her concessions it is clear from the mother’s evidence, as I have already discussed, that the mother does not place much value on the father’s relationship with the children. Another example of this is her proposal that the time the father spends with the children should give way to the children’s other activities and she proposes an order to give effect to this arrangement. I do not propose to accede to her application or make the orders she seeks which would prioritise the children’s activities such as birthday parties and the like over the father’s time with the children. The mother can of course advise the father about any activities the children would like to attend and there is no reason why the children cannot attend those activities whilst in the father’s care if he decides that it is appropriate in all of the circumstances for them to do so.
The mother also sought an order suspending the father’s time with the children in the event that his time should fall on the middle weekend of the school term holidays. There was no evidence or submissions specifically in relation to this issue although it is clear that it is intended to allow the mother to go away on holidays with the children. I am mindful that these are interim orders and in circumstances where the father only has time with the children every second Sunday to suspend that time during the school holidays would result in the children not seeing the father for over two weeks. In my view that is too long. This is an issue that can be addressed if and when the matter is dealt with on a final basis.
The father sought an order that the mother not provide meals for the children when they are in his care. Although I do not intend to make that order I do propose to order that the father be responsible for feeding the children during the time they are in his care. This is in my view another example of the mother’s lack of respect for the father’s parenting capacity. It is important to note that parents generally have different parenting styles and frequently parent in different ways and it does not follow that one way is right and one way is wrong. The fact that the mother sends the children’s meals with them is also likely to send a message to the children that the father cannot be trusted. I will require the mother to provide the father with information in relation to any health issues, and in particular details of any diagnosed allergy and if there is a medical reason why the children should not be eating a particular food the father should observe that recommendation.
Both parties have sought orders about which there was little or no evidence and which were not the subject of any submissions. These include telephone communication with the children and time on Christmas Day. These orders are interim orders and so doing the best I can on the evidence I have before I am satisfied that the father should have the opportunity to spend time with the children this Christmas Day although I propose to order that his time conclude at 4.00pm and not 5.00pm to allow the mother to spend Christmas night with the children.
I also propose to accede to the father’s application that he be permitted to telephone the children. Pursuant to the orders I propose to make, the father will be spending time with the children each alternate Sunday and it is not unreasonable in those circumstances that he be able to speak to the children by telephone in the intervening period. I am not satisfied that his ability to speak to the children should be open ended and propose to make an order along the lines he proposed in his Case Outline. I am also aware that the mother will no doubt consider any telephone communication quite intrusive. Weighing up these issues I am satisfied that a telephone call to the children each Wednesday in the interim is appropriate. I also propose to make an order that the mother permit the children to telephone the father at their reasonable request.
I am conscious that the mother has little or no trust in the father and it is likely to take some time for him to regain some measure of her trust. However having considered and weighed up all of the evidence I am satisfied that it is in the best interests of the children to make the orders I have outlined.

I certify that the preceding one hundred and eighty four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 December 2012

Associate:

Date: 14 December 2012

[2012] FamCA 1051

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Natural Justice

Procedural Fairness

Remedies

Duty of Care

Negligence