C and C

[2006] FMCAfam 411

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C [2006] FMCAfam 411

FAMILY LAW – Application for parenting order – re-determination of children’s primary residence – where father alleged mother sexually abused younger child – whether unacceptable risk – civil standard – where the father repeatedly questioned the child about being sexually abused and involved other child – severe breakdown in communication between the parties – separation of siblings and balancing that with child’s relationship with primary carer – parental alienation – expert report – weight to be attached to expert report and expert’s oral evidence in circumstances where her findings and conclusion were contradictory and unsatisfactory – significant material not included in report as to the nature of child’s relationship with father – where report writer limits her assessment to the mother as the cause of the family difficulties and such an assessment found to be demonstrably inconsistent to the father’s behaviour in proceedings before the Court – children’s views contentious – primary and additional considerations – credibility – positive finding of sexual abuse not made – conditional residence order imposed.

Family Law Act 1975 (Cth) (as amended), ss.10G, 13C, 60B, 60CA, 60CC, 61B, 61C, 61DA, 61DAA, 65DA, 61DAA, 61DAC, 61DB, 65DAA, 65DAC, 65DA(2)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Reform Act 1995 (Cth)
Evidence Act 1995 (Cth) and (NSW), s.140

Rice v Asplund (1979) FLC 90-725
King v Finneran [2001] FamCA 344
Brown and Pedersen (1991) 105 FLR 83
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
B v B (Access) (1986) FLC 91-758
T & N [2001] FMCAfam 222
A & V [2002] FMCAfam 273
N and S and the Separate Representative (1996) FLC 92-655
S v S [1993] NZFLR 657
C v J (1996) FLC 92-697
M v M (1988) 166 CLR 69
B v B (1988) FLC 91-957
Briginshaw v Briginshaw (1938) 60 CLR 336
Murray v Murray (1960) 33 ALJR 521
WK v SR [1997] FLC 92-787
B v B (1993) FLC 92-357
Re W (Sexual Abuse: Standard of Proof) (2004) FLC 93-192
TF and JF and Children’s Representative [2005] FamCA 394
Baynes & McCann [2006] FMCAfam 16
A v A (1998) FLC 92-800
Hall and Hall (1979) FLC 90-713
In the Marriage of Mathieson [1977] FLC 90-230
Heidt and Heidt (1976) FLC 90-078
Ahmad and Ahmad (1979) FLC 90-633
R v R: Children's Wishes (2000) FLC 93-000
Patrick Parkinson, ‘Family Law and Parent-Child Contact Assessing the Risk of Sexual Abuse’ (1999) 23 Melbourne University Law Review 345
Kee McFarlane, ‘Child Sexual Abuse Allegations in Divorce Proceedings’ in Kee McFarlane and Jill Waterman (eds), Sexual Abuse of Young Children: Evaluation and Treatment (1986) 121
Richard Chisholm, ‘Child Sexual Abuse: The High Court Rules on Onus of Proof’ (1989) 3 Australian Journal of Family Law 184

Applicant: S C

Respondent: A C

File number: SYM 3281 of 2004

Judgment of: Pascoe CFM

Hearing dates: 19 & 20 June and 10 & 11 August 2006

Delivered at: Sydney

Delivered on: 20 September 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms C Reynolds

Solicitors for the Respondent: Vizzone Ruggero & Associates

Counsel appearing as the Independent Child Lawyer: Ms M De Vere

Independent Child Lawyer: Legal Aid Commission of New South Wales

ORDERS

1. That all previous parenting orders are discharged.

2. That the mother and father are to have equal shared parental responsibility for the children.

3. That J live with the mother.

4. That C live with the father.

5. Order 4 is conditional upon the following:

   (a)The father attend and successfully complete an anger management course, such course to be agreed upon between the father and the Independent Children’s Lawyer and upon completion of course the father provide to the mother and the Independent Children’s Lawyer confirmation of completion;

   (b)Accepts the mother’s equal shared parental responsibility; and

   (c)Demonstrates a willingness to encourage and promote a relationship between the children and their mother.

6. That J shall spend time with the father as follows:

   (a)Each alternate weekend from 5pm Friday through to 5pm Sunday commencing 18 August 2006.

   (b)For one half of each school holiday period being the first half in the year 2006 and each alternate year thereafter and the second half in the year 2007 and each alternate year thereafter.

7. That C shall spend time with the mother as follows:

   (a)Each alternate weekend from 5pm Friday through to 5pm Sunday commencing 25 August 2006.

   (b)For one half of each school holiday period being the second half in the year 2006 and each alternate year thereafter and the first half in the year 2007 and each alternate year thereafter.

8. During Soccer season and whilst ever C is actively involved in playing soccer, order 7(a) shall commence at the conclusion of C’s games and the mother shall collect C from his soccer game.

9. That in addition to the time that the children or either of them spend with each parent as set out in orders 6 and 7 on the following occasions of special significance the children shall spend time with the parties as follows:

   (a)The father shall not have either C or J on the weekend which includes Mother’s Day but shall transport C to the mother’s residence at 6pm Friday and collect C from the mother’s residence at 6pm Sunday of that weekend; and

   (b)The mother shall not have either C or J on the weekend which includes Father’s Day but shall transport J to the father’s residence at 6pm Friday and collect J from the father’s residence at 6pm Sunday of that weekend.

10. In the event that the children are with the mother during the first half of the Christmas school holiday period, the father shall spend time with C and J from 4pm on Christmas Day until 6pm on Boxing Day. The father shall collect C and J from the mother’s residence and return C and J to the mother’s residence.

11. In the event that the children are with the father during the first half of the Christmas school holiday period, the mother shall spend time with C and J from 4pm on Christmas Day until 6pm on Boxing Day. The mother shall collect C and J from the father’s residence and return C and J to the father’s residence.

12. That in order to facilitate order 6 the father shall collect and deliver J at the commencement and conclusion of the period.

13. That in order to facilitate order 7 the mother shall collect and deliver C at the commencement and conclusion of the period.

14. The father shall email the mother with details of C’s soccer season as they come to hand including times, dates and addresses for C’s games.

15. That the parties will facilitate C and J communicating with each other by telephone each Wednesday evening at 7pm. The mother shall facilitate the call to the father’s home on the first Wednesday following these orders and each alternate Wednesday thereafter and the father shall facilitate the call to the Mother’s home on the second Wednesday following these orders and each alternate Wednesday thereafter and each party shall ensure that the children have privacy to speak with each other during this period. Neither party shall speak to either C or J during this telephone contact.

16. J shall communicate with the father by telephone at all reasonable times that he may request and the mother shall facilitate the making of such telephone calls.

17. C shall communicate with the mother by telephone at all reasonable times that he may request and the father shall facilitate the making of such telephone calls.

18. That both parties shall ensure that the other is kept informed by e-mail transmission at the earliest opportunity and in any event within twenty four hours of:

    (a)any medical problems, specialist appointments or illnesses suffered by either child whilst in their care;

    (b)any medication that has been prescribed for either child whilst in their care;

    (c)school issues as they arise in relation to either child whilst in their care; and

    (d)any school meeting, parent-teacher function.

19. That in the event of either C or J being hospitalised or receiving medical attention the parent spending time with the child at the relevant time shall notify by SMS the other parent as soon as practicable and include details of injury and details of where the child is receiving medical treatment.

20. That each party shall inform the other in writing as soon as practical of any specialist medical appointment with any psychologist, psychiatrist, counsellor or therapist in relation to either C or J.

21. That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable), email address and advise the other party of any changes to these details within seven days of such change occurring.

22. That within fourteen days of these orders and within fourteen days of either C’s or J’s subsequent enrolment at any school each parent do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend form time to time, the school forward directly to the other parent copies of all of each child’s school reports and merit cards and any written material pertaining to each child’s academic and extra-curricular activities and any other matter pertaining to the child’s attendance at school.

23. That both parents are entitled to attend all events involving the children or either of them including:

    (a)sporting fixtures; and

    (b)extra curricular activities that allow for parental attendance; and

    (c)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

24. The parent who has the children in their care pursuant to these orders on the day of such activity will be responsible for their day to day care at such events and the transportation to and from that event.

25. That both parents be and are hereby restrained from taking either child to be examined by a medical practitioner in relation to allegations of sexual abuse without first seeking the permission of the Department of Community Services.

26. That the parties must within one month of the date of these orders do everything necessary to attend for the purposes of assessment of their suitability to attend a Parenting After Separation with Unifam or Relationships Australia and upon being assessed as suitable attend and complete such programme as may be recommended by the Co-Ordinator of the Centre and the father shall use his best endeavours to ensure that his wife S C also attends.

27. The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows:

    (a)the mother and father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General; or

    (b)the mother and the father shall participate in family dispute resolution with a person authorised under s.10G of the Family Law Act.

28. Before an application is made to a Court for a variation of these orders to take account of the changing needs or circumstances of the children or of the parties each party is to take the following steps:

    (a)The mother and father shall do things necessary to attend counselling or mediation with an organisation recognised under the family law act or by the Commonwealth Attorney General; or

    (b)The mother and the father shall participate in family dispute resolution with a person authorised under s.10G of the Family Law Act.

29. That the mother and father including S and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.

30. That the parties including S and their servants and agents be and are hereby restrained by themselves and their servants or agents from telephoning, assaulting, molesting, harassing or intimidating the other and/or the children.

31. That the parties including S and their servants and agents be and are hereby restrained by injunction from talking to the children about living with either parent.

32. That neither party including S shall include the children in any discussion or decision regarding parental responsibility matters.

33. That neither party including S send messages through the children.

34. That neither party including S and their servants and agents shall take the children out of the Commonwealth of Australia without the written consent of the other party (such consent will not be unreasonably withheld), or an order of a Court of competent jurisdiction.

35. That no later than eight weeks prior to any planned removal of the children from Australia, the parent who planned the trip shall give the other written notice of their intention and the itinerary and no less than four weeks prior to departure that parent shall provide a photocopy of the children’s return ticket for the trip and the parent in possession of the children’s passport provide to the parent travelling with the children the children’s passport.

36. As soon as practicable the father do all acts and things necessary to remove the children’s names from the Airport Watch List.

37. That in the event C takes his bike and any other personal items to the Central Coast both the father and S be responsible for the return of such items to Sydney.

38. That the order for the appointment of the Independent Children’s Lawyer dated 25 January 2005 and 3 February 2006 be extended to 20 September 2007 and IT IS REQUESTED that the Legal Aid Commission of New South Wales fund such extension.

39. That the order for the appointment of the Independent Child Lawyer dated 25 January 2005 and 3 February 2006 be discharged as of from 21 September 2007.

40. That within seven days of the making of these orders the Independent Children’s Lawyer cause a sealed copy of these orders, together with a copy of these Reasons for Judgment, to be served on the Proper Officer of the Department of Community Services.

41. That the Independent Children’s Lawyer be at liberty to apply directly to my Associate in relation to this matter.

42. That the matter be listed for mention before me at 11am on 5 March 2007 at 97-99 Goulburn Street, Sydney.

43. That all Exhibits and Subpoena material be returned by the Court at the expiration of 28 days from the date of these orders.

44. That the file and the Exhibits and Subpoena material remain in the Sydney Registry of the Federal Magistrates Court.

45. That all extant applications otherwise be dismissed.

46. That pursuant to s.65DA(2) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Annexure A” and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 3281 of 2004

S C

Applicant

And

A C

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings involve competing applications between S C (the father) and A C (the mother) in relation to the parties’ two children,

   
   

   C born 8 May 1992 and J born 23 March 1998 (the children).

2. On 20 July 2005 when this matter came before the Court for final hearing orders were made by consent.  Those orders provided for C to live on the Central Coast with the father and for J to live in Sydney with the mother.  By application filed 8 December 2005 the father seeks an order that J live with him.  He alleges that J has been sexually abused by the mother.  In this regard, I note that before a Court will re-visit a child’s living arrangements it must be satisfied that there has been a significant or substantial change in circumstance since the making of the previous parenting orders (Rice v Asplund (1979) FLC 90-725 at (78,905-06), per Evatt CJ (with whom Pawley SJ and Fogarty J agreed); King v Finneran [2001] FamCA 344 at [44], per Collier J (sitting as a single judge of the Full Court of the Family Court. Clearly if sexual abuse were shown to have occurred this would be a significant or substantial change in circumstance.

3. The applicant appeared without representation.  Ms Reynolds of Counsel appeared on behalf of the mother and Ms De Vere of Counsel appeared as the Independent Children’s Lawyer.

Relevant background

1. The father was born in New Zealand on 1 July 1969.  He is aged 38 years.  He and his family migrated to Australia in about February 1983.  The father is employed as a Window Tinter.  The mother was born in Portugal on 25 August 1965.  She is aged 41 years.  She works as an Accounts Manager in a family business.

2. The parties married on 10 April 1993 and separated in either 1999 or 2002.  They remained living under the same roof until 20 September 2003.  A Decree Nisi was pronounced in this Court on 20 May 2004. 

3. On 26 November 2003 consent orders were made in the Family Court of Australia.  Those orders provided for the children to live with the mother and to have regular contact with the father.  On 12 January 2005 the father commenced proceedings in this Court seeking an order that the elder child C live with him.  In late 2005 both parties filed contravention applications alleging the other had contravened the orders of 20 July 2005.  However, at the commencement of the hearing there was agreement to proceed only with the substantive application.  On 10 August 2006 the father withdrew his application filed 13 June 2006 whereby he sought an order that the mother be restrained by injunction from removing the children from the Commonwealth of Australia.  I note that he alleged that in 2003 the mother forged his signature to issue passports in each of the children’s names.  This allegation was withdrawn during the hearing.

4. The father resides on the Central Coast at Bateau Bay.  He and his wife, S C married on 22 August 2004.  There are no children from their marriage.  The mother resides at Croydon in Sydney and has not re-partnered.

Material relied upon

1. At the hearing the father relied upon the following material:

   a)His affidavit filed 8 December 2005;

   b)The affidavit of his present wife filed 8 December 2005;

   c)The affidavit of his sister filed 22 May 2006;

   d)The affidavit of his father filed 9 May 2005;

   e)The statutory declaration of his brother dated 3 March 2005; and

   f)The reports of Dr Carolyn Quadrio dated 18 July 2005 and 30 May 2006 respectively.

2. The mother relied upon the following material:

   a)Her affidavit filed in Court on 10 August 2006 and her affidavits filed 31 May 2006, 2 February 2006, 7 December 2005 and 7 July 2005;

   b)The affidavit of the father’s brother filed 10 May 2006;

   c)The affidavits of her sister filed 15 July 2005 and 31 May 2006;

   d)The affidavit of the paternal grandfather filed 19 June 2006; and

   e)The affidavit of her friend filed in Court on 10 August 2006.

The relevant law

1. The Family Law Act 1975 (Cth) was recently amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). As the father appeared without representation I felt it appropriate to provide the father with copies of the relevant amendments together with explanatory material.

2. The Family Law Act was also amended in 1995 by the Family Law Reform Act 1995 (Cth). Those amendments formalised the right of a child to know and be cared for by both parents and the right to have regular contact with them. It also introduced the concept of parental responsibility, namely the importance of both parents sharing the rights and obligations of both short and long term decisions affecting the welfare of their children. Parental responsibility is defined by s.61B of the Act to mean all duties, powers, authorities, and responsibilities that a parent has by law in relation to his or her children. The jurisprudence underlying the concept of shared parental responsibility is to encourage parents to reach agreements about all aspects of parenting. Section 61C provides that both parents have a responsibility (subject to Court orders) for a child under 18 and that marital status, divorce or separation has no impact on this responsibility. Interestingly, these provisions have not been changed and thus s.61C provides the foundation of the law in this area. I note however that s.61C makes no reference to shared parental responsibility. It merely states that each parent has responsibility and does seem to require them to co-operate in this regard.

1. Section 60B(1) of the Act sets out the objects of Part VII. The objects are designed 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;

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   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.

2. Section 60B(2) of the Act sets out the principles underlying these objects. They provide that (except when it is or would be contrary to a child’s best interests):

   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;

   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);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; 

   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).

3. There is however no automatic right of a parent to have contact with his or her child (Brown and Pedersen (1991) 105 FLR 83 at [95], per Nicholson CJ, Baker and Moss JJ).

4. In deciding a particular parenting order the best interests of the child is the paramount consideration (B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at (84,219), per Nicholson CJ, Fogarty and Lindenmayer JJ; B v B (Access) (1986) FLC 91-758 at (75,546), per Gee J and s.60CA). Section 60CC establishes a two tiered approach and requires the Court to consider “primary” and “additional” considerations which will best promote a child’s interests. A major challenge for the Court is to determine how to weigh up “primary” and “additional” considerations. Further, it is necessary to look at the totality of factors in each case in order to reach a view on the merits. I have adopted the approach that primary considerations are best used as overall guiding principles when assessing the case and determining the child’s best interests (ss.60CC(2) and (3)).

5. There is now a presumption that equal shared parental responsibility is in the best interests of the child (s.61DA). The presumption will not apply where there are reasonable grounds to believe that a parent of the child or a person, who resides with a parent of the child, has engaged in family violence or abuse of a child (or another child who is a member of the parent’s family) (see s.61DA(2)). The presumption may be rebutted if there is evidence that it would not be in the child’s best interests (see s.61DA(4)). The presumption relates solely to the allocation of parental responsibility for a child as defined in s.61B. It applies only to parents and not to parenting orders made in relation to other people seeking a parenting order. It does not relate to the amount of time the child spends with each parent (this issue is dealt with in s.65DAA). It is perhaps worth noting that s.61DA does not state that it is in the child’s best interests that an order for shared parenting be made. However, it is difficult to see how the Court could otherwise give effect to the presumption. Under s.65DAA the Court when making a parenting order must consider whether spending equal time with each of his or her parents will be in the best interests of the child and whether the child spending equal time with each of the parents is reasonably practicable. If the Court is not satisfied that provision should be made in a parenting order for a child to spend equal time with each of his or her parents then the Court must consider whether it would be appropriate and reasonably practicable for the child to spend substantial and significant time with the non-resident parent. Substantial and significant time is taken to include weekends and holidays and some weekdays and must allow for other significant events in the child’s life. Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with his or her parent only if:

   a)the time the child spends with the parent includes both:

   i)days that fall on weekends and holidays; and

   ii)days that do not fall on weekends or holidays; and

   b)the time the child spends with the parent allows the parent to be involved in:

   i)the child’s daily routine; and

   ii)occasions and events that are of particular significance to the child; and

   c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   however it does not limit the other matters to which a Court might have regard in determining whether the time a child spends with a parent would be substantial and significant.  This section does not create a presumption that it is in the child’s best interest to spend equal time with each parent.  It requires that the Court consider whether the child should spend equal time or significant and substantial time with each parent.

6. In considering this issue the Court must look at the factors set out in s.65DAA(5) which include:

   a)how far apart the parents live from each other;

   b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;

   c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;

   d)the impact that an arrangement of that kind would have on the child; and

   e)such other matters as the Court considers relevant.

7. Some of these factors share commonality with the indicia set out by Ryan FM (as Her Honour then was) in T & N [2001] FMCAfam 222 at [93] and A & V [2002] FMCAfam 273 at [26]. The relevant factors to which Her Honour had regard are:

   a)The parties’ capacity to communicate on matters relevant to the child's welfare.

   b)The physical proximity of the two households.

   c)Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

   d)The prior history of caring for the child.  Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child's adjustment?

   e)Whether the parties agree or disagree on matters relevant to the child's day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

   f)Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.

   g)Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extra-curricular activities.

   h)Can they address on a continuing basis the practical considerations that arise when a child lives in [two] homes?  If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?

   i)Whether or not the parties respect the other party as a parent.

   j)The child's [views] and the factors that influence those [views].

   k)Where siblings live. 

8. The behaviour of a parent, is relevant to paragraph 65DAA(5)(c) and may also be taken into account in determining the parenting order the Court may make in the best interests of the child. Further, the Court has power under s.13C to make orders for the parties to attend family counselling or family dispute resolution to or participate in courses, programs or services.

9. As the father alleges child sexual abuse the Court must consider the principles relevant to allegations of child sexual abuse.

10. Abuse of any kind against a child is unacceptable but sexual abuse against a child involves the most severe exploitation of children, the most serious invasion of their right to personal integrity and freedom, and the most serious denial of their rights to personal growth and development (N and S and the Separate Representative (1996) FLC 92-655 at (82,709), per Fogarty J (dissenting)).  To suggest that a parent has sexually abused his or her child is a most serious matter.

11. Allegations of sexual abuse often present evidentiary difficulties for the Court because of the inherent difficulty in obtaining corroborative evidence which can support the allegations of a parent or the purported disclosure of the child (Patrick Parkinson, Family Law and Parent-Child Contact Assessing the Risk of Sexual Abuse, (1999) 23 Melbourne University Law Review 345, at p 2 citing N and S and the Separate Representative (1996) FLC 92-655 at (82,710-11), per Fogarty J and S v S [1993] NZFLR 657 at [660], per Thomas J).  
    A further difficulty in assessing allegations of child sexual abuse is that in the context of the breakdown of a marriage or de facto relationship it is widely believed that there is greater likelihood of unfounded allegations of sexual abuse than is otherwise the case (Kee McFarlane, ‘Child Sexual Abuse Allegations in Divorce Proceedings’ in Kee McFarlane and Jill Waterman (eds), Sexual Abuse of Young Children: Evaluation and Treatment (1986) 121, cited in Patrick Parkinson, Family Law and Parent-Child Contact Assessing the Risk of Sexual Abuse, (1999) 23 Melbourne University Law Review 345, at p 3).  As Thomas J in S v S pointed out, Courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings (N and S (supra)).  Whilst the Court must be on guard to the likelihood of false allegations it must also assess the credibility of the parent who has been accused of abuse against a child (C v J (1996) FLC 92-697 at (83,338), per Fogarty and May JJ). 

12. The Court is under no duty to make a positive finding that an allegation of sexual abuse is true unless the Court is satisfied according to the civil standard of proof test (M v M (1988) 166 CLR 69 at [76], per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ; B v B (1988) FLC 91-957 at (76,923), per Nicholson CJ, Baker and Maxwell JJ). Before making a positive finding the Court must feel an actual persuasion of its occurrence or existence before it can be found (Briginshaw v Briginshaw (1938) 60 CLR 336 at [361], per Dixon J). In this case the Court must be satisfied according to the civil standard test. As Dixon J said at [362]: [A finding of child abuse] cannot be found as a result of a mere mechanical comparison or probabilities independently of any belief in its reality…it is not 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 of flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proof, indefinite testimony, or indirect inferences (and reaffirmed in Murray v Murray (1960) 33 ALJR 521 at [524-5]). Thus, the Briginshaw test is the dictum in civil proceedings and was the genesis for the enactment of s.140 to the uniform Evidence Acts 1995 (Cth) and (NSW) which provides that in civil proceedings, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.  The Court must take into account the nature of the cause of action or defence and the nature of the subject matter of the proceeding and the gravity of the matter alleged). 

13. In children’s matters, where the issue is a child’s relationship with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated.  Accordingly, before the Court finds itself impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof must be towards the strictest end of the civil spectrum as set out in Briginshaw and s.140 of the Evidence Act. Inexact proofs, indefinite testimony or indirect references are insufficient to ground a finding of abuse (WK v SR [1997] FLC 92-787 at (87,694), per Baker, Kay and Morgan JJ; B v B (1993) FLC 92-357 at (79,777), per Fogarty, Baker and Purvis JJ; Re W (Sexual Abuse: Standard of Proof) (2004) FLC 93-192 at (79,217), per Kay, Holden and O’Ryan JJ). However, the Court must still ask the ‘unacceptable risk’ question (N and S at (82,714), per Fogarty J.  The concept of unacceptable risk does not carry an easily identifiable meaning (N and S at (82,712), per Fogarty J).  The difficulty with this concept was identified by the High Court in M v M at [78] where their Honours said: Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations.  The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of  M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding.  In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. (See also the commentary by Richard Chisholm, ‘Child Sexual Abuse: The High Court Rules on Onus of Proof’ (1989) 3 Australian Journal of Family Law 184, 189).  In TF and JF and Children’s Representative [2005] FamCA 394 May J (in the majority) added at [74] unacceptable risk was a concept far from settlement in its application to many family situations. In Baynes & McCann [2006] FMCAfam 16, Brown FM at [69] said: The unacceptable risk test is a separate and distinct question from that of whether or not the abuse alleged did or did not occur.  It arises when a Court is not able to make such a finding because the prerequisite standard of proof has not been achieved but issues relating to the child’s best interests remain alive.  In applying the test, to a large degree, the Court is required to make an assessment or prediction of whether or not abuse will occur in future.  In making such a prediction, the court is required to identify risk factors and make an assessment of the magnitude of the risk involved.  This can only occur if a close and detailed assessment is made of all the circumstances surrounding the allegations themselves is made.  The purpose of the test is 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 contact. 

14. The unacceptable risk test was considered by the Full Court of the Family Court comprising Fogarty, Kay and Brown JJ in A v A (1998) FLC 92-800 where it was said at (84,996): firstly inquire into whether there is objectively an unacceptable risk.  If there is, the Court must take steps proportionate to the degree of risk.  If there is not, the Court may then need to consider whether the resident parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children.  The Court then needs to take steps proportionate to that circumstance. 

15. However, if the Court makes a positive finding that the allegation is true the Court must then consider what orders, if any, are appropriate.  It should be noted however that the termination of a worthwhile relationship between a child and his or her parent, ought in most cases, be the course of last resort. 

The evidence

S C

1. At paragraph 14 of the father’s affidavit filed 8 December 2005 he states: [O]n Friday 18/11/05 afternoon I collected J from school, as it was my contact weekend for the boys to be together.  When J and I arrived home we did the usual, had a snack with C and S.  And then we all hung out together as dinner was cooking.  We all had dinner as we normally do.  And we all got comfortable and got ready in our p.j’s to watch the Friday night movie ‘tomb raider’ somewhere in the second half of the movie, J came right out and said (whilst watching a commercial) my mum still does that.  (The commercial was of a man that was sitting on a toilet reading a newspaper with the door open).  At this time C was still in the lounge room and seemed annoyed by this, as this was what his mother used to do to him.  As C was leaving the room he said to J “is mum still doing that”?  C had then gone to bed.  J then surprised us be telling S in my presence, “That mum picks me up out of bed when I am asleep and put me in her bed”.  At this time I clearly heard what J had said to S, so I turned around from the beanbag that I was sitting on and asked J “what do you mean baba?”  J then openly and very innocently said to S and I that his mother picks him up out of bed when he is asleep and takes him to her bedroom.  And then J said that his mother positions J on top of her.  He said that he is in between her legs and upper thigh area.  Also J expressed that he was too sleepy to play the wrestling game with her.  So he said he would try to get off.  So J told me to get off his mother he tried to get off from the left.  And his mother would go to the left as well (as to keep J on top of her) then J would go to the right and again his mother would go the same again.  When S and I asked J about this, we asked J to specify an area that he felt more pressure.  What S and I both asked him was which area the shoulder, hips or legs.  J clearly and confidently replied that he feels the most pressure on the hip area and also added that his mother presses her hand on his lower back, and does the wiggle thing with him.  At this point I asked J, how does this make you feel? J replied “very uncomfortable and it’s very wrong”.  I asked J what happens whilst this is going on, is there any talking? J said “no, we are just quiet and mum kisses my cheek”.  I then asked J “does your mummy have her clothes on?” J replied “yes” I then asked J “how do you know that?” he said “because I can feel the sides of her undies on my leg” (as he pointed to his thigh area).  I also asked J what happens when this stops.  J said “nothing, I just go back to my bed”.  I asked “does mummy say anything to you?” he said “no”.  At this point I asked S to hang out with J whilst I went into another room to call the police to report this matter.  The police told me that this was a DOCS matter, and that I must call them.  So I called the DOCS help line.

1. At the hearing the father told the Court that after J made his disclosure he and S asked (to establish whether J was referring to a game or something sexual) which part of his body did he feel more pressure.  In his affidavit the father deposed that he asked J: How does this make you feel?  J replied: Very uncomfortable and it’s very wrong.  However, according to the records of the Department of Community Services (the Department) the father is noted as saying that he asked J: Did you feel uncomfortable?  This is denied by the father.  He told the Court that he asked J: Does it make you feel uncomfortable?  I note that the Department record states that the father told the Department that he said to J: that it was wrong and J said: Yes, it’s very wrong.  The father denies he said this and said that he told the Department, J said that his mother was rubbing him on top. 

2. The father invited his sister, a nurse to come for dinner in order to talk to J about what he had told the father and S.  It was proposed that she would speak to J on the weekend of 2 December at the father’s home.  In the event, however the mother did not make J available for contact and it was not until about 19 December 2005 that T spoke with J prior to he and his brother going on holidays with the mother and her family.  The father told the Court that after his sister arrived at his home she sat in the lounge room and he asked J if he would like to talk to T.  J said: yes and asked the father to sit next to him.  The father asked J if he was comfortable in talking to T about what he had said to him and S and J said: yes.  The father told the Court that he wanted J to tell T about the mother playing the wrestling game in bed with him.  However, later in his evidence the father said that within 40 minutes of his sister’s arrival he told J (in the kitchen in the presence of T) that: I want you to tell Therese what you told me.  After that he said to J they went into the lounge room where Therese said: You’ve got something to say or something or what’s going on or what would you like to talk about? and J said yes.  The father said that J told T that his mother had been touching him wrongly or funnily.  The father recalls that T asked where J had been touched and in reply J placed his hand on his penis and said she puts her hand here.

3. When cross-examined by Ms De Vere of Counsel the father told the Court that when the disclosure was made J was sitting on the lounge with S and he and C were sitting on a beanbag watching a movie.  He said there was a television commercial showing a man sitting on the toilet and J said: Mum is still doing that and the father said: What do you mean?  J said: She still sits on the toilet with the door open.  In his affidavit the father says that C left the lounge room and said to J: Is Mum still doing that?  The father told the Court that after he and S spoke with J about the disclosure he went to the bedroom to telephone the police and C went to bed.  He telephoned the DOCS helpline, whilst J remained in the lounge room with S.  He recalls that he telephoned the Department between 10:00 and 11:00pm.  During the period he was absent making the call S put J to bed.  The father said that he and S asked J either the following day or sometime later that weekend: has it happened more often than not or has this happened more than once or has this been going on for some time and Is what you’re telling us the truth?  The father told the Court that both he and S discussed the allegations over the weekend (with the children in the home).  The father also alleged (in his oral evidence) that the mother had sexually abused J in Queensland.  On this occasion the mother and the boys stayed in a one bedroom apartment.  C slept on a fold out bed and J slept in the mother’s bed.  The father initially told the Court that C had told him a couple of days after his return home that J and the mother shared a bed together.  Later the father told the Court it was shortly after C arrived home that he told the father of the sleeping arrangements. 

4. On 19 November 2005 the father sent the mother an email and a text message telling her that J had made an allegation of sexual abuse.  On 20 November the mother arrived at the father’s home to collect J.  The father deposed that when she arrived the children were in the back patio area playing chess.  Both the father and S approached the mother in the driveway.  They noticed a friend of the mother’s in the car who was not known to them.  The father said that he and S told the mother what J had said on 18 November and the laughed and acted as if it was a surprise.  He described the mother’s face “as red as a beetroot” and said she became defensive and pointed her finger at the father and S and said: don’t go there about what the boys have told me about you.  The father deposes that he said: well tell me what I have done to them.  He deposes that the mother ignored his response and started to “rant and rave”.  The father conceded that the parties exchanged unpleasant words to one another and the mother then drove off in the car without J having said (in a threatening manner): I’ll be back.  The father then sent the mother a text message telling her that J was ready for collection and too bad you didn’t want to talk about him.  The mother returned about two hours later and collected J.  The father said to the mother: don’t you touch him, and I have contacted DOCS. 

5. The father was asked about his relationship with his own family.  He told the Court that neither he nor C have spoken to the father’s parents or brother since before Christmas of last year.  He says that he started to phase his parents out before December because of their sponging food and alcohol and that their falling out was not over unpaid money as alleged by the paternal grandfather but over his father attempting to run C off his bike in his car.  The father told the Court that C came home earlier this year “white as a sheet” and told him that his grandfather tried to run him off his bike.  The father called the police and it was decided that it was appropriate for C to take out an AVO against Mr C senior.  The father also alleged that a further reason for taking such action was that C had been stalked by his grandfather on two occasions at or near the bus stop.  He also alleged that Mr C senior has interfered in his parenting of C.  The father did not discourage C from taking out an AVO against his grandfather (nor his aunt L in 2005 (see later)).

6. Before C moved to the Central Coast he and the mother had an altercation about C leaving his bedroom door open.  C sent a text message to his father.  The father involved the police.  The father told the Court that the mother had C pinned up against the wall.  This was different to what Dr Quadrio was told.

7. The father also alleged (shortly after the allegations against the mother) that his brother behaved inappropriately with J and C.  This has led to a complete falling out between the father and his brother and they no longer speak to each other.  The father was cross-examined as to why he believed his brother was a risk to the children.  He said he based his concerns on the fact that at a wedding sometime ago his brother had pinched C on the bottom.  In December last year the father told his parents that his brother was a risk to the children and that he should not be allowed contact with them without proper supervision.

8. The father was asked about J having contact with his grandparents.  He said that when he learnt of the mother taking J to see his parents he followed the mother in his car to see for himself the disloyalty of his parents by having the mother in their home.  To his credit, the father accepted that J regards his grandfather as one of the most important people in his life and was not concerned for J’ safety whilst in the care of his father.

9. There are a number of incidents which demonstrate the father’s poor attitude to shared parenting responsibility.  C was suspended from school in June of this year for throwing a piece of fruit at a teacher.  When the father and S were informed by the school they did not tell the mother.  Similarly, when C received an honours award in recognition of his academic achievement the mother was not told. 

10. When C gave S a Mother’s Day card last year, he wrote that he wished S was his mother because she was heaps better than his mother and was not a witch.  The father told the Court that what C wrote was acceptable and he did not discourage what C wrote about his mother.

11. It is perhaps appropriate to note at this point that the orders of 20 July 2005 provided, inter alia, for J to have telephone contact with the father on Mondays and for the mother to have telephone contact with C on Wednesdays and a further order where both children could telephone the other at any time.  However, between July 2005 (until the alleged disclosure was made) there was very limited (if any) telephone contact between C and J and the father including J’ birthday.  However, after the allegations were made the father made numerous telephone calls to J asking him if he had told anyone about his mother’s behaviour and also had C telephone J to ask what had been disclosed and whether J had told anyone else. 

S C

1. S was born in Fiji on 12 July 1971 and migrated to Australia from Canada in 1984.  She first met the children in late 2003 after she had commenced a relationship with the father.

2. S told the Court that on 18 November 2005 J disclosed to the father and herself an allegation of sexual abuse during a television commercial of a man sitting on an outdoor toilet.  S said that J got up and said (shuffling): Dad, mum still does that.  C said: Does she still do that?  She gave evidence that J also said that he gets picked up from his bed in the middle of the night and placed into his mother’s bed and placed on top of her.  S said that J (without any prompting from the father) said that it was very wrong.  S also told the Court that J also said that he is tired and tries to hop off but then he is placed back into that position.  He then said that he would try and get off the other side and then he would be placed back in again.  He also said that he felt pressure on his lower back after being asked by either the father or S.  It is alleged that J told the father and S that he would try and get off but he could not, that his mother was wearing underwear and that the mother kissed him on the cheeks and when she had finished he would go back to sleep in his bed and nothing would be said.  The father telephoned the Department from another room and about half an hour after J made the disclosure S put him to bed and read him a story.

3. There is clear evidence that despite the father being told by the Department to stop speaking to J about the allegations both the father and S continued to question him during contact periods and called J’ school and asked if the teachers could talk to J.  S is recorded in Dr Quadrio’s 2006 report as saying: J said his mother told him he must forgive her and she has forgiven him and God will punish him.  He didn’t tell DOCS or the teachers.  He changed as soon as he went back.  Then he said it happened again in Queensland.  S asked him again and he said, “no”.

4. S sent the mother an email at 4:37pm on 18 November 2005 at which time the father and J were travelling from Sydney to the Central Coast.  It was alleged by S that J told her and the father later that evening that the mother had called S’s mother “fish lips”.  S says that this is not the first time the mother has made offensive and racist comments about her and members of her family.  Her email is as follows:

   To: A C.com.au Subject: You’re and idiot.

   Hi there you fucking big mouthed bitch.

   Just dropping you a short note to let you know in the past you’ve said shit about me and it was water off a duck’s back.

   But let me assure you I will not tolerate you speaking about and making fish lip comments about my mother to J.

   Why don’t you grow the fuck up and get on with lonely, miserable life and not insult nor interfere with others.

   You’re a pathetic specimen for a mother so don’t go and insult mine.  What kind of a mother tells her seven year old son to make fun of an elderly woman?

   Don’t involve me or my family in your sick screwed up ways.  You’re more sad than I thought you were you flat-nosed freak.

   PS: Get yourself up off the gutter and learn some self-respect or you will keep on losing every other hardship that comes your way in life.

5. S was asked about a phone call she made to the mother’s Tae Kwon Do teacher’s home.  S had been told by a friend who attends the mother’s Tae Kwon Do class that the mother and her teacher were having an affair.  S told the Court that she telephoned the teacher’s wife and told her that her husband and the mother were having an affair because the mother had told other people including the children that S was the reason the parties’ marriage broke down. 

G T C

1. G (known as T) is the father’s sister.  She was born in New Zealand on 23 July 1965 and is thus aged 41 years.  She resides at Forresters Beach on the Central Coast.  T is a registered nurse. 

2. T told the Court she became aware of the allegations against the mother on or about 19 November 2005 when the father telephoned her and told her that J said (prompted by a television commercial of a man sitting on a toilet with the door open): Oh my mother still does that and My mother takes me out of my bed after I’m asleep.  Puts me on top and rubs me on top of her.  The father arranged for T to speak with J on 5 December 2005 but the mother did not make J available for contact.  T told the Court extracted at (page 25 of the transcript) that:  [I] wanted to clarify in my own mind and to know exactly where things are at.  Also, I’m a registered nurse so I have a mandatory obligation once I’ve been made aware of any allegations of abuse, that I am a mandatory reporter.  So as well as being J’ aunty I sat there as a nurse.  I have interviewing skills in that role as well and I was very careful about how we went about this.  J sat there in the lounge.  S sat on the other side.  J wanted just to have his father there as support.  Obviously that was a difficult situation for him.  He sat there and he said: my mother touches my private parts.  She also told the Court that she asked J: How does this make you feel?  J said: This makes me feel very sad.  T said that she also asked J:  Why have you not told anybody what’s going on, what you told us?  J said: God will punish me.

3. T said that she spoke with J on 23 December 2005 at the father’s home however both J and C were on holidays in Queensland with the mother and her family.  She told the Court that J sat next to her on the lounge and said:  I want Dad to come and sit with me as well because he wanted his father’s support.  T said that she knew that J wanted to speak to her about the allegations because J told her over dinner that he had something to tell her.  When J sat next to T she did not say anything to him and J looked to his father for some reassurance and the father said: its okay.  After the father said to J that it was okay he sat quietly and said nothing more.  J then turned to T and said:  My mother touches my private parts.  T acknowledged on oath that what the father had told her previously and what J had told her were different allegations but said J’ comments were a shorter version.  T later told the Court that J only told her that the mother touches him on his privates.  However, at paragraph 14 of her affidavit T deposes that: On Friday 23 December I attended my brother’s house for dinner.  During this visit J wanted to speak to me.  I sat in the lounge room; my brother was asked by J to sit next to him.  J told me that “my mummy is touching my privates, and it makes me feel very sad”.  I asked J why he had not told anyone else, he said “God will punish me if I tell”.  I said “you have been seeing a counsellor, why haven’t you told him what you have told me.”  J replied that “he hasn’t asked me yet”.

4. I note that J started counselling with Mr Christopher Saunders in November shortly after the alleged abuse was disclosed.  Mr Saunders practices as an independent child psychologist.  The mother accompanied him to these sessions. 

5. T deposes at paragraph 15 of her affidavit that she telephoned the Department on 26 December 2005 to speak with Chloe (the assigned caseworker).  However Chloe was not available and T was advised by another caseworker that the investigation had closed.  In her affidavit T deposes that she told the caseworker that she did not believe that the counselling with Christopher Saunders was independent (as he was affiliated with the mother’s church) and was dissatisfied that the Department had made a decision to end the investigation.  She said that she was told by the Department that the disclosure was rejected because the father was present with J during the alleged disclosure.  She alleges that the caseworker told her that J was trying to please his father and that seven year old children do that and that as a registered nurse she would be aware of that.  T told the Department that had not happened and was advised that if she was dissatisfied with the Department’s decision she could make a complaint.  T also told the caseworker that she had failed J, failed to do her job and that she hoped that the counsellor was able to sleep.  The call was then terminated by the caseworker.  T then called the helpline and lodged a complaint.   The file notes of the Department show an entry that T (identified as the paternal aunt) telephoned the Department on 6 January 2006.  It was noted that T stated she was still concerned about J being in the care of the mother in light of the allegations of sexual abuse and said that J was in Queensland with the mother.

6. T gave evidence that her relationship with the father deteriorated in about December 2003.  She resumed contact with the father and the children in about August 2005 after the father apologized to her.  After the parties separated the father became aware that T had been visiting the children at the mother’s home.  T alleges that she had been told to say to the father that she was not at the mother’s home on Christmas Day giving the children presents.  He called T a selfish bitch and told her to: Stay away from his house.  Stay away from his family. Stay away from his kids.  T understood that the father perceived her visits to the mother’s home as supporting the mother.  In her affidavit T deposes that she terminated her relationship with the mother following what she considered were unfounded allegations about the father during the 2005 proceedings.  She also deposes that the mother made allegations that the paternal grandfather was behaving in a sexually inappropriate way toward the children.  Since resuming contact with the father and the children T sees the father weekly and watches the children play sport on the weekends.  She also deposes that on one occasion when the mother collected J from the father’s home J looked like a rabbit caught in spotlights and said to T that he could make things better by running away.

7. I find T’s evidence of limited value.  Her evidence in the Court was inconsistent with her affidavit and the father’s evidence.  Her claim to have professional experience in the area of child sexual abuse appears exaggerated.  Moreover, she seems to have supported and encouraged the father’s inappropriate and repetitious questioning of J.  Her behaviour in questioning J at the father’s home in the presence of the father suggests to the Court that T’s experience as to the proper handling of allegations of child sexual abuse is at best limited.  Her behaviour toward the Department presents as unprofessional and inappropriate.  Her evidence of J’ relationship with his father can carry little weight.  T had been absent from the father’s life for a considerable period of time and although she is now in regular contact with him her contact with J has been sporadic. 

A Paula C

1. The mother denies the allegations of sexual abuse.  She says that the father has made the allegations only to avoid his child support obligations and to damage her.

2. The father was cross examined about repeatedly questioning J in relation to the alleged sexual abuse and involving C.  On 25 November 2005 the mother telephoned C but he refused to speak to her.  The mother overheard the father in the background telling C to speak only to J.  The mother passed the mobile to J, put it on loud speaker and recorded the conversation as follows:

   C: “Why didn’t you go to school today?”

   J: “Mum had an appointment and couldn’t pick me up from school.”

   C: “Where did she go?”

   J: “I don’t know.”

   C: “Ok”.

   J: How was school? How are the dogs?”

   C: no reply.

   J: “What else do you want to talk about?”

   C: “Did you go to the counsellor yesterday?”

   J: “Nah……anything else you want to talk about?”

   C: “yes, where did you go yesterday?”

   J: “Mum went to an appointment.”

   C: “Where.”

   J: “Don’t know, near a big shopping centre.”

   C: “Is it the one we went to?”

   J: “No, not Dina.”

   C: “What did you talk about?”

   J: “Nothing, he just said how are you going, how’s school and that.”

   C: “Did you tell what Dad said or what you said to Dad.”

   J: “He just said are you having fun at your Dad’s and I said yes, that’s it”.

   C: “Is Mum telling you to get off phone?”

   J: “No”.

   C: “Where’s mum?”

   J: “In the lounge room.”

3. The mother gave evidence that she taped a phone call between J and his father whilst they were in the car.  She had the mobile phone on loudspeaker and was able to tape the phone call by turning on her dictaphone without J seeing her.  That conversation was played to the Court and is as follows:

   S: “hello……you’re a very hard man to get in contact with”

   J: “yep”

   S: “what’s going on with the phones man? ….Jimbo, stop looking at your mother, what going on with the phone?”

   J: “I don’t know”

   S: “I think you do camper”

   J: “I don’t”

   S: “what happened Friday man?”

   J: “I felt sick”

   S: “you felt sick”

   J: “yes”

   S: “so you spend the whole weekend in your bedroom…did you?”

   J: “No”

   S: “Well why didn’t you come and see me and C and Sanj?”

   J: “I felt sick that day”

   S: “C said you went to watch a movie on Friday…man…what’s going on?”

   J: We watched movie and I rested before we watched it”

   S: “Where’s your mother sitting?”

   J: “Next to me, we are in the car”

   S: “Ah, you’re in the car, where you going man?”

   J: “We are going to Aunty L’s”

   S: “did you go to the counsellor the other day?”

   J: “Yeh”

   S: “Jimbo, stop looking at your mother”

   J: (screamed) I’m not”

   S: (S said something about questions but couldn’t really understand him)

   J: “I couldn’t hear you”

   S: “oh you can hear me fine Camper” (raised aggressive voice)

   S: “let me tell you right now you can hear me fine camper, let me tell you... you can hear me fine.  Take me off loud speaker or throw your mothers phone out the window”

   J: “but… “ (tried to talk but S screamed at him)

   S: “I can smell that you’re lying.  I can smell it”

   J: “I am just sweating”

   S: “what. What’s sweating go to do with it, I can smell that you’re lying to me”

   S: ‘have you told any body else what you told me and sanj about your mummy touching you”

   J: “no”

   S: “why not, what your mummy said about that?”

   J: (no response)

   S: “Jimbo, look at the phone, don’t look at your mother.  Do you understand me?”

   J: “yeh”

   S: “is that why you are going to movies and Luna Park so you don’t tell your secrets that your mum wants you to keep quiet, when she gets into big trouble because she deserves to get into big trouble”

   J: (no response)

   S: “Jimbo”

   J: “no”

   S: “why didn’t you tell the counsellor the other day man?”

   J: “he didn’t ask me any questions to let him know”

   S: “have you told your school teachers?”

   J: “no”

   S: “why not?”

   J: “because they don’t need to hear it”

   S: “is that what your mum told you, that they didn’t need to hear it”

   J: “no….no”

   S: “the thing is Baba, they do need to hear it.  Every body needs to hear it man.  Even L needs to hear it.  A needs to hear it, and M and J.  Everyone needs to hear it man, because what your mum did is wrong man…”

4. The mother said that the father and S told J that the mother was having an affair with her Tae Kwon Do teacher and also told him that the mother was planning to marry the mother’s first husband and that he would move in with the mother and that they would kick J out of the family home.

5. The mother gave evidence that the father obstructs C’s contact time with the mother.  On 2 May 2006 the mother received an email from the father which stated that he had commitments on the weekend of C’s birthday.  The father told the mother to collect C either Friday night or at 7.00am on Saturday morning on the Central Coast.  The mother told the father that she was unable to collect C at the specified times due to J’ needs and work commitments.  The parties sent a number of emails however no compromise was reached and on the Saturday of that weekend the mother drove to the Central Coast to collect C from soccer.  She was advised that C was in Sydney with the father.  The mother sent C a text message asking him to ask his father to drop him off so that he could attend his birthday party at Hawthorn Park Parade on the Sunday with family and friends.  The father told the Court that he was at Drummoyne helping his mother-in-law move house and that he was not minded to drop C off at the mother’s home and that C did not want to see his mother.  The father then sent the mother the following email:

   Thank you very much for not showing up to collect C on your contact weekend.

   You’ve managed once again to greatly disappointed C.

   As you know its C’s birthday today, and you should have made that extra effort to collect him this last weekend.

   When are you going to stop playing games with me and realise that its not about anybody else but the children.  Their happiness comes first and its time that you realise this.

   You need to understand that regardless of your poor relationship with C you need to make the effort and lead by example for him.  Not showing up to collect C at all is very hurtful for him, and unacceptable for me as I had given you more then adequate notice to make arrangements for collection.

   I hope that you will turn a new leave as all you are doing letting the boys down and this upsets them more than you think.

6. It was alleged by C in 2005 that his mother’s behaviour was disgusting in walking around the house in her underwear and leaving the toilet door open.  The mother told the Court that there have been occasions in the past that she may have walked from the bathroom to the bedroom in a T-shirt and pyjama shorts but not since C raised the issue.

7. It was also alleged by C in 2006 that his underpants went missing at the mother’s home.  I felt it appropriate to ask the mother about this incident as it was raised in Dr Quadrio’s report under allegations of sexual abuse.  The mother told the Court that shortly after the interview with Dr Quadrio C asked her about his missing underpants.  He said: Mum my underpants have gone missing and I want to know where they are.  Have you seen them?  Where are they?  The mother said that she and C searched the house but could not find them anywhere.  The mother said to C that if he left them at her home they would be in his drawers or in the wash.  She told him that she had not done anything with his underpants.  C went and searched his room again and he came out with the garments which he showed her and said: look at this, Mum, and he showed her a pair of shorts folded over and he opened them up and his underpants were inside them.

8. The mother gave evidence that when she was on holidays in Queensland with the children they stayed in a one bedroom apartment which had one king sized bed in the bedroom, a foldout bed and two small lounge seats in the living area.  Despite being aware of the allegations levelled against her the mother allowed J to sleep in her bed to avoid the children fighting about C wanting to be alone in the living room.  I note that after C left Sydney, J moved into C’s old bedroom.  C has asked J if he can sleep in his old room when he visits but J refuses and C feels that he is forced to sleep in the lounge room on the couch.  This may have influenced C’s attitude whilst in Queensland.  However the mother’s actions were unwise at best.

9. There was further evidence that before C moved to the Central Coast the mother bought C a bike for his birthday.  After C threatened to runaway with it to the father’s home the mother confiscated it and told him that until he shows respect to her she will not let him use it in Sydney.  C is annoyed with this and also annoyed that J got involved in discussions about his bike.  He is also annoyed that the mother would not allow him to take other personal items back to the father’s home on the Central Coast.

10. The mother claimed that C is encouraged by his father to take photos of her home on his mobile telephone and reports back to his father about anything which might happen at his mother’s home.

M C

1. M is the father’s elder brother.  He resides in Sydney.  He relies on his affidavit filed 10 May 2006.  He also subscribed to a statutory declaration dated 3 March 2005 in support of the father’s then application. 

2. After the father left the former matrimonial home in late 2003 he stayed with M until he moved to the Central Coast with S.  In August and November 2005 M asked the father to repay money he loaned him in 2004 to pay for the home renovations.  The money remains unpaid.  In December 2005 M commenced legal action against the father to recover the monies.  M deposed in his affidavit that when he loaned the father the money the father said: I want to make the place look so good that the boys never want to go back to live with that bitch and that: The boys are going to enjoy this pool so much they are never going to want to go back to that bitch.  M deposed that the reason the father borrowed the money was to get the boys to live with him so he no longer needed to pay child support to the mother.  He says he recalls the father saying: I will do anything to regain the kids cause it was A in the first place who never wanted children.  I’m going to love it when that bitch has to pay me child support instead of me paying her.  M deposed that he has witnessed the father denigrate the mother in the presence of the children and also encouraging the children to cause trouble for the mother and damage her property.

3. M deposes in his affidavit that when he telephoned his parents in mid December 2005 his mother told him that the father had made an allegation of sexual abuse against him and had called him a paedophile.  In his evidence M said that it was his father who told him of the allegations.  He said he was told by his father that the father was concerned about M kissing and touching the children.  M told the Court that he became aware of the allegations in about November 2005.  He wanted the children to know what had been alleged and he had telephoned the mother. 

4. M has had sporadic contact with the mother since the parties separated in 2003.  He says that he has recently observed a positive relationship between J and his mother.  His only other contact with the mother was a telephone call to her work in September 2003 to ask her where she would like him to send a letter addressed to her and sent to his home.

5. The father submitted that the Court should reject M’s evidence on the basis of his earlier evidence in support of his initial application. 

   
   

   I found M’s evidence to be of limited value.  There must be concern as to credibility when his evidence is so contradictory to what has been deposed in earlier proceedings.  I did not find his evidence to be helpful to either party’s case.  There is a lot of animosity between him and the father and his action against the father in separate Court proceedings appears to have escalated that animosity and may account for a marked change in his evidence.

V L D A

1. V D A (known as L) is the mother’s younger sister.  She lives in Leichhardt and has two children. 

2. L is in regular contact with the mother and J and sees C on weekends when he is in Sydney.  She has a close relationship with J and her relationship with C has improved since the incident in June 2005 which resulted in C taking out an Apprehended Violence Order (AVO) against her after she slapped him across the face in response to his calling her a “queen bitch” and a “whore” after he was asked to get off the phone when talking to the father.  L told the Court that she has observed a good relationship between the children and between the children and the mother.  L deposes in her evidence that C does not appear to be all that happy living with his father and S.

3. I found L to be a reliable witness and I accept her evidence.

B B

1. B B relies upon her affidavit filed in Court on 10 August 2006.  Two of her sons attended C and J’ school and she has maintained a close friendship with the mother.  On 20 November 2005 Ms B accompanied the mother to the Central Coast to collect J as the mother appeared very distressed.

2. Ms B deposed in her affidavit that when she arrived at the father’s home the father and S were leaning on their cars in the driveway and appeared angry.  Ms B said that as the mother parked beside the father’s driveway she wound her window down as she could hear the father screaming.  The father told the mother to get of the car.  Ms B told the mother not to get out of the car.  S approached Ms B in the car and yelled: Who are you? What are you staring at? Who are you, she’s tricked you into coming with her, she knows what it is about?  Don’t you come to my fucking house again, it’s my home.  Ms B told the father and S that she was a Christian friend of the mother.  Ms B deposes that both the father and S remained abusive to the mother and made comments such as she’s disgusting, a sexual predator, evil, putting J over her and his legs between hers.

3. The mother and Ms B left the father’s home and parked around the corner in a nearby street and called the police.  However due to other exigencies the police were unable to attend and about 7.15pm the mother returned to the father’s home to collect J.  The father and S then brought J to the mother’s car and said goodbye to J.  As J was getting into the car the father said: Don’t touch my fucking son.  What’s a Christian doing with a paedophile? and S continued swearing at the mother.  Ms B said that J was frightened and fell asleep in the car.  The mother was crying.

4. I found Ms B to be a reliable witness and I accept her evidence.

G B C

1. G C is the applicant’s father.  He resides in Bateau Bay in close proximity to the father.  He relies on his affidavit sworn 15 June 2006, marked Exhibit “R1”.  Mr C also filed an affidavit on 9 May 2005 supporting the father’s initial application.  That affidavit described the mother as the most manipulative, possessive person he had ever had been unfortunate to come across.  He also said that if she could not own or possess anything then she set out to destroy it and she was an expert at it and that at every opportunity she would denigrate the father to both him and his wife, M C which led to him not speaking to her.  He further deposed that the mother is a liar and defamed anyone that crossed her which is what she did to the father. 

2. Despite being reluctant to file his current affidavit Mr C said he was motivated by two reasons.  The first is C’s allegation that Mr C attempted to run him down off his bike and the second, C’s change in behaviour from July to November 2005. 

3. In November and December 2005 Mr C asked for the return of $7500 which he loaned to the father.  It was alleged by Mr C that in December 2005 when he telephoned the father about repaying the money the father called him a stupid fuckwit.  Mr C terminated the call but the father repeatedly telephoned Mr C throughout the evening and said:  I will make sure that you never see your grandsons again and if you do you will not like what is going to happen to you.  Since December 2005 however C has not had any regular contact with Mr and Mrs C.  In relation to J there have been three contact occasions each facilitated by the mother.

4. It was alleged by Mr C that the father has referred to the mother as a: Skank, Skankyname, Shanky-whore, Skankything, Skankyslut.  In about December 2005, Mr C says he told the father to be careful what was said in C’s presence and the father responded by saying: you are in my fucking place and C, if you don’t like it you know what you can do.  Mr C said: all I am saying is that it’s his mother you are talking about and the father replied: Coop, you have already had my answer or are you as fucking stupid as skanky.

5. Despite the father’s submission that I should reject Mr C’s evidence I found Mr C showed deep concern for the welfare of the children.  Clearly, his evidence is less credible because it is so contradictory of evidence given by him just twelve months ago.  However, even if I were to reject most of his evidence, the evidence about the father’s attitude toward the mother is consistent with other evidence as to the father’s attitude toward the mother and his failure to make any attempt to conceal his contempt for her.

Dr Carolyn Quadrio – the family reports

1. Dr Quadrio is a professor and consultant child and family psychiatrist.  She has prepared two family reports for the purposes of these proceedings dated 18 July 2005 and 30 May 2006.  The first report Dr Quadrio prepared was in relation to the initial set of proceedings before the Court last year.  That report formed the basis of Dr Quadrio’s updated report.  It should be noted that family reports are important as they are the only means by which a child can express his or her views to the Court.  However, whilst family reports assist the Court in determining a child’s best interests the Court is under no duty to accept its findings and recommendations (Hall and Hall (1979) FLC 90-713 at (78,819), per Evatt CJ, Asche SJ and Hogan J).

2. I was very concerned by inconsistencies between Dr Quadrio’s first and second reports and her oral evidence.  I was further concerned that her second report contained material which on its face was prejudicial to the mother but which was capable of simple explanation which put the incident in an entirely different light.  It remains of great concern to me that the parties entered into consent orders on 20 July 2005 which meant C’s residence was changed from the mother to the father largely on the basis of Dr Quadrio’s first report which seemed to unequivocally favour a change of residence.  When questioned in the current proceedings however Dr Quadrio said she felt C had perhaps not wanted to live with the father but was confused and had now backed himself into a corner from which he may see no way out.  I find it extraordinary that there should be such a disconnect between Dr Quadrio’s report and this evidence.  It is not surprising that having heard the evidence the mother changed her application to the Court to seek residence for C.  I note that in light of the evidence as to C’s behaviour I am of the view that there is cause for concern as to whether the decision reached by consent last year was in C’s best interests.

Determining the children’s best interests – the Court’s two tiered evaluation

1. Subject to subsection (5), in determining what is the children’s best interest, the Court must have regard to the matters set out in ss.60CC(2) and (3). Section 60CC(2)(a) provides that the Court must consider the benefit to the children of having a meaningful relationship with both parents. Section 60CC(3)(b) requires that the Court ensure that the children are protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In deciding what is in the best interests of these children the Court must take into account the primary and additional considerations by virtue of ss.60CC(2) and (3) of the Act. Notably, these primary considerations are consistent with the objects set out in s.60B(1)(a) and (b) of the Act.

1. The children have been dragged into the conflict between their parents.  This cannot be in their interests.  Nevertheless, I am satisfied that both parents genuinely love the children and that the children should be afforded the opportunity to benefit from a meaningful relationship with both parents.  They should be able to do so openly and without fear of retribution or causing further conflict.  If the parties could minimise the degree of conflict, refrain from involving the children in their disputes and behave like adults with the best interest of the children foremost the benefit of the relationship with each of them and those close to them would be enhanced. 

2. I have carefully assessed the evidence pertaining to the allegations of sexual abuse and I am not satisfied that the Court can make a positive finding that the mother has sexually abused J or that J has been exposed or is likely to be exposed to any harm in the care of the mother.  Accordingly, I am not satisfied on the balance of probabilities that the father has proven that the allegations are true.  My reasons for not accepting the father’s allegations are as follows:

   a)The statements J made during the Department’s interview about his father bullying him and encouraging him to say that his mother has been sexually abusing him.

   b)The evidence of Dr Quadrio which supported the Department’s conclusions.

   c)The contradictory evidence of the father.

   d)The contradictory evidence of Ms C. 

   e)The inconsistency in the father’s evidence and the records of the Department.

   f)The fact that J never made a disclosure to anyone other than his aunt and that this was a completely different allegation to that made to the father.

   g)The fact that the alleged disclosure was made within hours of the father and S being told that the mother had made insulting comments about S’s mother. 

   h)The fact that the father made an allegation of inappropriate sexual conduct against his brother which appear to be without foundation.

   i)The father seems hypersensitive to issues of sexual and physical contact.  I note in his affidavit of 6 May 2005 he refers to the mother wrestling with him to initiate sexual and physical contact at the commencement of their relationship.  He also said in his evidence that he was concerned with M wrestling with the children and I note the allegation against the mother states that the mother wrestled with J.  Wrestling appears to feature rather prominently in the father’s mind in conjunction with physical and sexual behaviour.

3. Further, the father’s attitude and anger about having to pay child support to the mother raises concern.  In this regard I note:

   a)Shortly after C moved to the Central Coast father changed jobs.  However, the father’s evidence about this was somewhat difficult to comprehend.  He told the Court that he left Protech Industries and joined independent contracting with Motor One because he was sacked for having to attend AVO proceedings and because he wanted to pursue independent contracting work.  When he was not working sufficient hours at Motor One he returned to Protech Industries.

   b)When he changed employment to Motor One his employer was unable to garnish his wages.

   c)The father was assessed to pay child support for J but the mother was not assessed to pay child support for C based on her income. 

   d)The father told the Court that he was paying too much child support and alleged that the mother failed to disclose her true income and that until she was audited he would not resume paying child support.  He stopped paying child support in October 2005 and is currently in arrears.  This behaviour was poor judgment on the part of the father.

Additional considerations

1. I now propose to have regard to the additional considerations insofar as they are relevant by virtue of s.60CC(3).

2. Subsection (a) provides that the Court may consider any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.  It should be noted however that whilst children’s views are important considerations they are not the only factors the Court must take into account regarding a child’s best interests (R v R: Children’s Wishes (2000) FLC 93-000 at (87,073), per Nicholson CJ, Finn and Guest JJ).

3. Both children attended upon an interview with Dr Quadrio in 2005 and 2006 pursuant to orders of this Court.  In 2005 both C and J were interviewed with the mother, the father and S and separately.  In 2006 Dr Quadrio interviewed the father and S in the presence of both children but I note she did not interview the mother with both children.

4. C is aged 14.  He attends Secondary College.  In 2005 he told Dr Quadrio that he did not like living with his mother.  He described it as boring and said he did not like her because she did not do anything and did some disgusting things such as not wearing sufficient clothing.  He also complained about the way he was treated or the way in which the mother allowed others to treat him.  In 2006 C told Dr Quadrio that his move to the Central Coast had been successful, and that he had adjusted well and had no regrets about leaving Sydney.  He is coping well at school, has made new friends and sees them whenever he wants suggesting a greater deal of flexibility he did not have at his mother’s home.  He said that there was nothing much that he missed about his previous life in Sydney.  However, when asked about C’s state of mind since living with the father Dr Quadrio said that C is sticking by his decision to live with his father but in light of the degree of hostility and conflict between the parties C had painted himself into a corner and in her view has always been ambivalent about living with his father.  This is surprising in light of page 25 of her recent report where Dr Quadrio writes: C would be strongly opposed to a change of residence for himself.  I find these findings contradictory.  Nowhere in her report does Dr Quadrio raise any concern about C’s stated preference to live with the father.  The parties between themselves reached agreement about changing C’s primary residence on the basis that Dr Quadrio’s report strongly favoured a change in C’s primary residence.  After hearing this evidence the mother sought to re-instate her order to have C return home to Sydney with her and J.  Given the manner in which this new evidence came to light she cannot be criticised for now seeking that order.

5. J is aged 8.  He attends Primary School.  In her 2005 report Dr Quadrio writes at page 16: If C were to live with dad, J will feel sad, he’d like to live with dad too so he can practice football.  He would like to live with dad and visit his mum.  (Again the attachment appears to be stronger with the father but, notably, J avoided implicating any disloyalty to his mother by using football as a reason).  Dr Quadrio states on page 39 of her report:  J states that he prefers the current arrangement of living with his mother and seeing his father regularly.  It appears that he is actually more strongly attached to his father and he may be acting out of loyalty in expressing a wish to remain with his mother.  In her 2006 report Dr Quadrio concluded that J did not express a view about where he would like to live because he was too conflicted and found it difficult to choose between the two households.  After some difficulties in interviewing J Dr Quadrio asked him how he would feel about living with his father and C.  He told Dr Quadrio that it would be good to live with C but he had not made a decision yet – It is tough.  When he was asked if there was anything he could change in his life he said that he would have C come back home.  I reject Dr Quadrio’s conclusion that J did not express a view about where he wanted to live.  Nothing in that statement suggests that J was unable to express a view about his primary residence.  Rather, his preference appears to be to live with his mother and have C return home. 

6. Subsection (b) requires the Court to consider the nature of the relationship of the child with each of his or her parents and other significant persons (such as grandparents or other relatives of the child).

7. Before the father commenced proceedings in January 2005 to change C’s residence the children enjoyed a close and loving relationship with each of their parents and their extended maternal and paternal families.  However, after the children returned from contact with the father in January C’s relationship with his mother and the maternal family changed drastically to the point C was contemplating suicide.  He also wrote some very disturbing letters to the mother and drew a picture of his mother hanging.  Whilst I accept that the father may have influenced C in wanting to live with him I am satisfied that C himself identified benefits in wanting to live with his father given that C regards his father as his primary attachment figure.  Accordingly, I am satisfied that the father has played a significant role in C’s primary care both before and after separation and particularly when the mother was away from the family home establishing her career.  I am also satisfied that C has a close relationship with S and members of her family and that is accepted by the mother.

8. As noted C enjoyed a close and loving relationship with his mother prior to the initial proceedings.  C’s decision to want to live with the father was not well received by the mother.  Regrettably, it appears C shows little respect for her, feels that he is unwelcome in her home and that she does not show as much love as is displayed to J.  However, the mother told the Court that of late there has been a big improvement in their relationship.  The mother tendered a photograph, marked Exhibit “R2”, which shows C smiling with his mother and members of her family.  I accept this evidence and note that notwithstanding their difficulties and the father’s inability or unwillingness to promote the relationship C has maintained a desire to spend time with his mother.  That in my view is an obvious sign of C wanting a good relationship with his mother.  Clearly there is a need for improvement to maintain their relationship.  This could be achieved with co-operative parenting. 

9. However the problems in C’s relationship with his mother must be understood in light of the father’s behaviour.  The father has made no attempts to assist their relationship.  He has shown no respect for the mother as a parent.  In the father’s household there are no positive words spoken of the mother.  S has regrettably behaved in a similar fashion.  In both reports Dr Quadrio limits her assessment to the mother in seeking the cause of the difficulties in her relationship with C.  Such an assessment is demonstrably inconsistent with the father’s behaviour exhibited in these proceedings and his overall attitude of the mother.  Dr Quadrio’s assessment was tested in her cross-examination.  When asked on two occasions to compare the mother’s behaviour to that of the father Dr Quadrio failed to give clear or precise answers continuing herself to more general observations such as there is a lot of denigration from both parties and hostility between the two households. 

10. Regrettably, C’s relationship with the paternal grandfather has deteriorated to the point where he has taken out an AVO.  This is of great concern.  It is unclear whether that relationship can be reconciled given the entrenched conflict between the father and Mr C and the ongoing dispute about unpaid monies.

11. In relation to C’s relationship with his maternal aunt, L, notwithstanding the incident in June of last year, I am satisfied that their relationship is showing signs of improvement.  C also enjoys a good relationship with his cousins and enjoyed spending time with them in Queensland last year. 

12. The nature of J’ relationship with his parents raised greater controversy.  It was submitted for the mother (with whom Ms De Vere agreed) that Dr Quadrio’s finding that J had a closer relationship with his father than with his mother was not a proper assessment in light of other material and the factors not included in her report.  It was further submitted for the mother that what Dr Quadrio observed on the day of the interview was not that J was displaying signs of an easier relationship with the father but was behaving in a compliant manner in response to the father’s behaviour.

13. When the mother was interviewed by Dr Quadrio in 2005 she noted that J sat on the floor in her office and settled easily into play.  When the father was interviewed, Dr Quadrio noted that in the initial part of the interview both children sat on the couch very close to the father and S and maintained physical contact.  She noted that the change was an indication of a much closer attachment to the father as both C and J were more relaxed and the atmosphere was immediately lighter.  When the father spoke of his work history after leaving school Dr Quadrio noted that J left the couch and quietly played on the floor.  On page 40 of her report Dr Quadrio draws the conclusion that J is more attached to his father than he is to his mother.  On page 16 Dr Quadrio writes that J enjoys playing football, soccer and cricket.  On a fantasy voyage he nominated that he would take his father which suggested that J had a stronger attachment with his father.  I do not find the answer to this hypothesis a sufficient ground to draw any strong conclusions as to the parent J with whom has a stronger attachment.  Dr Quadrio also suggests at page 16 that J had a somewhat more positive attachment to his father based upon descriptions of his mother as angry, useful and funny and his father as funny, happy and joyful.  As I state at paragraph 88 Dr Quadrio notes at page 16 of her report: If C were to live with Dad, J will feel said, he’d like to live with Dad too so he can practice football.  He would like to live with his Dad and visit his Mum (suggesting that J has a stronger relationship with his father but, notably, J avoided implicating any disloyalty to his mother by using football as a reason) and then on page 39 Dr Quadrio misstates J views: J states that he prefers the current arrangement of living with his mother and seeing his father regularly.  It appears that he is actually acting out of loyalty in expressing a wish to remain with his mother. 

14. When Dr Quadrio saw J in 2006 the mother and J were first interviewed at which time J had not seen his father.  Dr Quadrio noted that J was regressed and extremely anxious and uncomfortable and that when Dr Quadrio later asked him why he had been so uncomfortable J said he did not want to see his father.  Dr Quadrio also said that J was anxious about the impending interview.  When Dr Quadrio interviewed the father and the children she notes at page 13: When I went out to the waiting room J was seated on his father’s lap.  This was a dramatic change in his demeanour from earlier in the day.  I invited the four of them to come into my office and noted that J sat down right next to his father.  He remained in close physical contact with him throughout the interview.  He seemed much brighter in his mood.  Dr Quadrio also noted that J continued to seem extremely relaxed and at ease with his father, occasionally poking and giggling.  C had a very relaxed and easy relationship with S and they were sitting side by side.  He leaned on her in a familiar and relaxed way.  Notably J was now responsive to questions.  She also noted that when J was asked about contact with his father on the weekends he smiled affectionately at his father.  He smiled a lot and was quite cute with his father.  He volunteered a story about how he had his tooth chipped twice and had to go to the dentist and have a repair.  There was a lot of humour and easy interaction with everyone about this.  J was leaning his head on his father’s shoulder in a very affectionate way.  After J left Dr Quadrio’s room J returned to his mother in the car.  J later returned and told Dr Quadrio that he was angry with his father when C left because he perceived that it was the father who made C leave but he has adjusted to being separated from C.  He told Dr Quadrio that he misses his father when he is with his mother and misses his mother when he his with his father.  J said that he likes his counsellor and if he had a problem he could tell his mother.  J said that he is scared of his father because he tells him to say hello at soccer.  He said he gets angry with his mother sometimes when she does not buy him lollies but had no negative thoughts about his father.  He said that it is difficult to want to be with both parents and is aware that his parents cannot agree. 

15. J made no complaint about his mother bullying him or being scared of her.  He made no complaint about her lying to him.  When Dr Quadrio was asked to describe J’ relationship with the father she said:  on balance I observe a better relationship between J and his father.  He was more relaxed.  He was more at ease.  He was more open and he showed more affectionate behaviour.  He showed more attachment seeking behaviour.  His mood was lighter.  That was true on both occasions.  With his mother, particularly on the second occasion, he was very regressed in his behaviour, he seemed very conflicted, and when he attended Mr Saunders, the psychologist, with his mother his behaviour has been extremely disruptive. 

16. J told Mr Saunders that he hated his father and that his father punches him.  He told the Department that his father bullies him and lies to him about his mother sexually abusing him.  When the mother and J attended upon Mr Saunders J became distressed as did the mother when he was told that he would be seeing his father at Dr Quadrio’s office the following day.

17. It is difficult to accept Dr Quadrio’s assessment of J’ relationship with his father in light of other significant material that is not included in her report.  I am sympathetic to Dr Quadrio in that she did not have available the tape recording of J’ conversation with the father, played to the Court prior to her giving evidence.  However, she was privy to material from Mr Saunders and the Department which supports the contention that J’ relationship with his father is not as easy as her report suggests.  In my view her assessment was overly influenced to J’ interaction with his father in the interview.  The affection he displayed toward his father then is demonstrably inconsistent with other evidence not included in Dr Quadrio’s assessment.

18. Subsection (c) requires that the Court consider the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent. 

19. I have already found that both children should be afforded the opportunity of a meaningful relationship with each of their parents.  Notwithstanding the degree of hostility between the parties I am satisfied that the mother can rise above the conflict and encourage and facilitate a relationship between the children and their father.  However, the manner in which the father’s evidence unfolded about the children’s relationship with their mother was of great concern.  He showed no respect for the mother.  He told the Court that he did not like her and cannot say anything nice about her.  When asked if the children loved their mother he hesitated and said: I suppose.  He denigrates the mother in the presence of the children and seems to have made every attempt possible to alienate them from their mother in total disregard to their best interests.  He told the Court that it was appropriate to call her a piece of shit.  He shows no signs of wanting to co-operate with the mother in relation to parenting issues.  Accordingly, I am not satisfied that he has a willingness to encourage and facilitate the children’s relationship with their mother if both children were to live with him in his primary residence. 

1. There are obvious signs of hatred and vindictiveness toward the mother by S evidenced by the email of 18 November and the telephone call to the Tae Kwon Do teacher’s wife.  However, I do note that there have been occasions where the mother and S have been able to negotiate contact arrangements for the children.  Clearly, if the parties could minimise the hostility between them S could play a positive role in facilitating contact between the two households.  As is my constant refrain it would assist greatly if all parties including S refrained from denigrating each other both amongst themselves and the children.

2. Subsection (d) requires the Court to consider any likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living. 

3. The positive in this case is that the children are loved in both households and by their extended families.  In her reports Dr Quadrio suggests that it is in the interests of the children not to be separated especially in circumstances where the degree of hostility between the two households is extreme.  Dr Quadrio in her updated report recommends that J move to primary residence with his father on the basis that he has an easier relationship with his father than with his mother and sustaining the children’s relationship.  I accept that sustaining a relationship between the children is critical however there is no presumption or rule that siblings should not live apart (In the Marriage of Mathieson [1977] FLC 90-230 at (76,224-25), per Fogarty J). There will be circumstances where it is in a child’s interests to live separately from their siblings but it should only be in exceptional cases (Heidt and Heidt (1976) FLC 90-078 at (75,362), per Murray J). In Ahmad and Ahmad (1979) FLC 90-633 at (78,301), Asche and Moss JJ (Tonge J dissenting) said: It is of course, usually desirable that children be together as a family but this is not absolute rule and is governed, as all general propositions are governed, by what is best for the welfare of the children in all circumstances however those factors alone must be balanced with other competing factors such as the children’s relationship with their parents and other significant persons and their age and individual needs.

4. Dr Quadrio notes in her updated report that J has been behaving angrily towards C.  However, I do not read anything in Dr Quadrio’s report that suggests J is behaving angrily towards C by virtue of the children living in separate households.  When C was interviewed this year he told Dr Quadrio that he did not miss anything about his previous life in Sydney.  In 2005 he told Dr Quadrio that the move to the Central Coast would be good and although he would miss J they would have the opportunity to see each other on the weekends. 

5. There is a significant age difference between the children.  C has now reached puberty and has developed interests different to that of J and it would be expected that they would move apart perhaps temporarily in any event.  He is spending more time with his friends whom he has made since living on the Central Coast and is regularly attending social events with children of his own age.  He has already changed schools and is significantly involved in his soccer team.  Whilst he may be ambivalent about living with his father it would not in my view be in his interests to remove him from his father’s household notwithstanding the father’s parenting abilities and the poor example the father sets for him.  I have given considerable thought to changing C’s residence to live with the mother given the new evidence from Dr Quadrio.  In the end I accept the contention put forward by Ms De Vere that despite the concerns as to C’s true state of mind it would not be in his interests to make a further change in residence for him given that he has had barely enough time to settle in with the father.  Further, he is coming to an age where he will be independent.

6. I am not satisfied that moving J to his father’s primary care would assist the children’s relationship as Dr Quadrio suggests.  There are problems in the children’s relationship as a result of the parties’ inability to keep the children out of their conflict.  I accept that J does miss C although there does seem to be some irritation expressed by C with J which in my view would be expected from a boy of C’s age in relation to a much younger sibling.  In addition to those matters I am concerned about removing J away from his primary residence where he has lived with his mother for all of his life.  No cogent reason to do so has been established.  J is only 8 years of age and to move him would be a significant disruption to his life.  Moving him from the parent who he feels he goes to with his problems would be wrong.  Moving him away from the school he has attended since kindergarten would be a further disruption for him and moving him away from the maternal family and the paternal grandparents would also be of concern given the father’s total disregard of the extended family.  The maternal family appears harmonious and regularly see one another.  J appears to enjoy his time with them and if he were to live with the father I am not satisfied that the father would allow him to maintain that relationship.  The father pays no regard to the children spending time with their extended families.  He admitted that he has had a complete falling out with his parents and was unable to tell the Court how he proposes to resolve that dispute and whether he intends to afford the children the opportunity to spend time with their grandparents.  I am concerned that if he were placed in his father’s full time care J’ relationship with his mother would be severely damaged and that contact with his mother would be limited and conditional on what the father thinks appropriate (as evidenced by his Minute of Proposed Order and the emails of 8 and 9 August 2006).

7. Clearly, a change to more co-operative parenting would assist in sustaining the children’s relationship despite living in separate households.

8. Subsection (e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. 

9. Neither party seeks an order in terms of this subsection given the geographical distance between the two households.

10. Subsection (f) requires the Court to consider the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs. 

11. Given the degree of hostility between the parties and their inability to keep the children out of their disputes it is hardly surprising that both parents and S have failed at least in part to meet the children’s emotional and psychological needs.  The children are aware of the hostility between their parents and this is clearly having a severe detrimental effect on their welfare.  On balance however it is the father who seems to have the least capacity to meet the children’s emotional needs.  His behaviour in relation to the allegations, his bullying and intimidation and repeated questioning of J against the advice of the Department showed scant regard for J’ emotional well being.  He involved C to the point that he was telephoning his brother to question him about whether he had told anyone about the allegations.  He had his sister question him in his presence.  He called J’ school telling them to talk to J about the allegations and took him to a doctor.  The tape played to the Court was clear evidence of the father bullying and intimidating J.  It was clear on that tape that J was distressed but the father pressed on bullying him without any regard to his interests.  It is also of concern that the father, S and his sister discussed the allegations in the father’s home in the presence of C. 

12. I accept Ms B’s evidence of what happened when she and the mother drove up to the father’s house to collect J.  I have no doubt that both children would have been clearly aware of the situation and that this was clearly contrary to their interests.

13. I had the benefit of observing the demeanour of L and the paternal grandfather and I am satisfied that they are both able to meet the children’s needs. 

14. Both the father and S allege that the mother is not meeting J’ physical needs adequately.  I note that this allegation was not pressed at the hearing and in the absence of evidence to the contrary I am not satisfied that the mother is not able to meet J’ physical needs.

15. I note that both children are academically gifted.  In particular C is exceptionally gifted and J is showing signs of good academic achievement.  Clearly co-operative parenting can only enhance the children’s educational achievements.

16. Subsection (g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.

17. I have regard to this subsection.

18. Subsection (i) requires the Court to consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the children’s parents.

19. Before January of last year it appears that both parties demonstrated responsible parenting.  However, since the commencement of both sets of proceedings both parties have demonstrated a poor attitude to parenting.

20. The mother’s attitude to C and his use and enjoyment of his bike and bedroom indicates poor judgments.  It did not assist her relationship with C.  Rather, it caused further strain.  It would greatly assist her relationship with C to return his bike and permit him to take it and other personal belongings to his father’s home which will then be the responsibility of the father and S to encourage him to be responsible to return it to Sydney for his use.  This will indicate co-operation between the two households that will be for the greater benefit of C.

21. Allowing J to have C’s old bedroom appears to be poor judgment on the part of the mother.  It made C feel unwelcome in the mother’s home and has clearly caused conflict between the children.  The mother needs to reconsider this issue as a matter of urgency.

22. It was most inappropriate of the mother to permit J to sleep in her bed after the allegations of sexual abuse were made.  It is clearly not desirable for the mother to permit J to sleep in her bed either in her home or during vacations in light of the recent allegations and particularly in circumstances where C may be encouraged to report back to his father about what may take place in the mother’s household.

23. The father’s attitude to parenting is of great concern.  His encouragement of AVO’s against C’s grandfather and maternal aunt does not seem to display any conflict resolution skills or any ability to consider the long term consequences for C.  Whilst L did not react in the most appropriate way at the time (indeed, nor had C), I find that the situation was exacerbated by the interference of the father.  Of the incident, L told Dr Quadrio:  C called me “queen bitch” and he’s on the phone with S and the next minute the cops are there and then S’s there so he must have been hanging around the house because he was there in a couple of minutes and instead of disciplining C, he just encourages him.  I find that the father’s response was out of proportion to what had happened and only served to further isolate C from his extended family.

24. Subsection (j) requires the Court to consider any family violence involving the child or a member of the child’s family.

25. The mother alleges that there were instances during cohabitation where the father behaved aggressively.  The mother also deposes in her affidavit of 10 August 2006 that the father has made threats to have her killed.  This was corroborated by M and I have regard to her fears.

26. J made an allegation to his counsellor that his father punches him.  There may have been instances where the father has lost his temper toward the children.  The father will need to manage and control his temper.  This can be greatly assisted by anger management and further counselling.

27. Subsection (k) requires the Court to consider any family violence order that applies to the child or member of the child’s family, if: the order is a final order or the making of the order was contested by a person.

28. There have been AVO’s taken out against the father by the mother.  I have noted the AVO’s taken out by C in relation to members of his extended family.

29. Subsection (l) requires the Court to consider 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.

30. It is hoped that with further counselling and the parties developing a willingness and capacity to co-operate as parents there will be an end to further litigation.  The parties must comply with orders and make efforts to support each other’s parenting styles.  Moreover, as C grows older it will be necessary for both parties to accept that there will need to be greater flexibility in his contact arrangements with both parents.

31. Section 60CC(4) provides that without limiting paragraphs (3)(c) and (i) the Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: has taken, or failed to take, the opportunity: to participate in making decisions about major long term issues in relation to the child and to spend time with the child and has facilitated, or failed to facilitate, the other parent: participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

32. The father accepts that up until January 2005 the children exercised regular contact with him in accordance with the consent orders dated 26 November 2003.  I accept that both parties have failed to facilitate contact but on balance the father has demonstrated an inability to fulfil his obligations as a parent to encourage contact between C and his mother.  The situation in May of this year was clearly detrimental to C because he did not get to spend time with his mother, her family and J and C’s Sydney friends for his birthday.  The father could easily have facilitated contact without fuss but deliberately caused the mother to drive all the way to the Central Coast.  Telephone contact between the children and their parents has clearly been problematic.  The father’s interference with C’s telephone contact with his mother has clearly been inappropriate as is the father’s excessive telephone contact to the children.

33. Having heard the evidence about the mother failing to make J available for contact after the allegations I am satisfied that it was entirely appropriate for her not to facilitate contact given the intentions of the father to have his sister interview J about the allegations.  In relation to the mother’s trip to Melbourne in June of this year, whilst in normal circumstances that would be taken to be evidence of a parent failing to fulfil his or her obligations to facilitate and encourage contact between a child and a parent it would not have occurred if the father had been willing to negotiate alternative contact arrangements.

34. Subsection (4A) provides that if the parent’s have separated, the Court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

35. I have already covered this.

Conclusion

1. For the reasons set out above I am satisfied that the orders identified at the start of this judgment are in the children's best interests.  The orders proposed by the Independent Children’s Lawyer are in my view appropriate in the circumstances.

2. C’s residence with the father however is conditional upon the father fulfilling certain obligations to improve his behaviour in relation to parental issues.  I propose to bring the matter back before the Court within six months to give the parties the opportunity to demonstrate that they are capable of changing their behaviour and to assess whether the father has met his obligations under order 5.  It should be noted that any attempt at this stage to change C’s residence would be extremely difficult given the degree of hostility between the parties and the present difficulties facing C’s relationship with his mother.

3. I gave consideration as to whether I should change contact changeover to the police station or some other venue in view of the inappropriate behaviour displayed particularly on the occasion Ms B was present.  I have not made any change so as to give the parties the opportunity to demonstrate that they are capable of changing their behaviour.  It is important that they do so.

4. In relation to the father’s suggested order to include contact between the children and S on Mother’s Day I regard this as completely inappropriate.  As is the requirement that the mother encourage the children to telephone S on her birthday.  It imposes unnecessary conditions on the mother when spending time with the children and is yet another example of the father failing to promote the children’s relationship with their mother.  If however the children wish to telephone S on her birthday the mother should not discourage such contact.

5. The father proposes that the mother provide her home telephone number.  The mother has not made this available to the father because of the father’s abuse.  Communication between the parties is difficult and should be limited to email communications which are themselves best described as somewhat colourful.  It is hoped however in time the parties will be able to communicate by other means.  I note the mother has access to a computer both at her place of work and in her home but only communicates via email during work hours. 

6. The father seeks an order for the return of the children’s passports and C’s scholarship fund monies.  I am not satisfied that there is any necessity to make orders in those terms.  I propose to order that any proposed overseas travel be negotiated on and the parent who has possession of the passports at the time will be responsible to provide it to the parent accompanying the children overseas pursuant to orders 34 and 35.  As the father withdrew his application of 13 June 2006 it is appropriate that the children’s names be removed from the Airport Watch List.  I am not satisfied that the children are at risk of removal from the Commonwealth unlawfully.

7. I propose to include an order pursuant to s.65DA(2) of the Act. The effect of such order can be very serious if a parent is found to be in contravention of a Court order without reasonable excuse.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Legal Associate:  Peter Smith

Date