Caplan and Caplan

FAMILY COURT OF AUSTRALIA

CAPLAN & CAPLAN

[2008] FamCA 974

FAMILY LAW – CHILDREN – CHILD ABUSE – Allegations of sexual abuse made by both parties at different stages of the proceedings, particularly the father’s view that the children were at risk of being exposed to abuse in the mother’s household – consideration of interpretation and nature of disclosures said to be made by the children – single expert evidence - conclusion that there was no unacceptable risk that the children were sexually abused or at risk of sexual abuse from a male occupant of the mother’s household – no evidence indicating unacceptable risk of the father sexually inferring with his daughters – parents mental status - parents do not reside in the same city – orders that the children live with the father and spend time with the mother

Family Law Act 1975 (Cth)

APPLICANT:

Mr Caplan

RESPONDENT:

Ms Caplan

INDEPENDENT CHILDREN’S LAWYER:

Ms Mary Gleeson

FILE NUMBER:

PAF

3753

2003

DATE DELIVERED:

17 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta & Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

18 – 22 June 2007; 6 – 8 August 2007; 13 -17; August 2007; 6 September 2007; 8 – 11 September 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Givney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

The Children P born … December 2000 and R (“the children”) born … July 2002 shall live with the father.
The children shall have time with the mother as follows:-
2.1Subject to orders 2.8 and 4, from 4.30 p.m. Friday to 5.30 p.m. Sunday on each alternate weekend commencing on the first weekend following judgment that coincides with the current orders for alternate weekend time.
2.2Unless otherwise provided, the time on the third alternate weekend during school terms shall commence at 4.30 p.m. on the Thursday and conclude at 4.30 p.m. on the Monday [and the father shall make such arrangements with the children’s school]. Either party shall have liberty to review this Order once P commences high school.
2.3From 10.00 a.m. on the first Saturday of the first, second and third term school holidays until 10.00 a.m. on the second Wednesday of those holidays.
2.4From 10.00 a.m. 23 December for a period of 20 consecutive nights to 10.00 a.m. on the day after the 20^th night in years ending in an even number and from 10.00 a.m. 27 December for a period of 20 consecutive nights to 10.00 a.m. on the day after the 20^th night in years ending in an odd number.
2.5In the event Anzac Day falls on either a Thursday, Friday or a Monday the following shall apply:-
2.5.1The extended weekend referred to in paragraph 2.2 shall occur on the Anzac Day weekend.
2.5.2If the Anzac Day weekend falls on a non-contact weekend then the mother shall forego her time with the children on the following weekend.
2.5.3If Anzac Day falls on a Thursday or a Friday the time shall commence at 4.30 p.m. on the Wednesday before the weekend and conclude at 5.30 p.m. on the Monday.
2.5.4If Anzac Day falls on a Monday the time shall commence at 4.30 p.m. on the Thursday and conclude at 5.30 p.m. on the Tuesday.
2.6In the event the Easter period falls outside school holidays and occurs on a contact weekend the time shall commence at 10.00 a.m. on the Friday and conclude at 4.30 p.m. on the Tuesday [and the father shall make arrangements with the children’s school if the Tuesday is a school day.]
2.7Unless the parties otherwise agree in writing, provided the mother gives the father one months notice in writing that she is able to have the children with her in the G area, the mother shall have the care of the children for the last week of the school term commencing at midday on the Sunday prior to the last day of the school term and the children shall attend school during that week.
2.8In the event that the children are not otherwise with their mother on Mother’s Day then the children will spend time with their mother from 4.30 p.m. Friday to 5.30 p.m. Sunday but shall not spend time with her on the following weekend.
2.9In the event that these Orders otherwise provide that the children are to be with their mother on Father’s Day, then the children’s time with their mother on that weekend will commence at 4.30 p.m. on Thursday and conclude at 4.30 p.m. on the Saturday of the Father’s Day weekend.
2.10Such other time as may be agreed between the mother and father in writing and writing includes emails.
Unless otherwise provided for in these Orders, changeovers shall occur at the M Hotel.
The time provided in Order 2.1 shall be suspended during all school holiday periods.
Noted that the time provided for in Order 2.7 shall mean that the mother shall be wholly responsible for the care of the children, with the intent that the mother shall be responsible for the children attending school and their various activities. The mother will then continue the care of the children at the end of the school term into the holiday period in compliance with these Orders if appropriate. The children shall be collected, unless otherwise agreed, at the front of their school on the Sunday afternoon.
The father shall ensure the children telephone or communicate by way of a webcam link with the mother between 5.30 p.m. and 6.30 p.m. each Tuesday and each Thursday and in the event the children are at G on Saturday, between 9.30 a.m. and 10.30 a.m. on Saturday morning.
Each party shall keep the other informed at all times of each others email address and landline telephone number.
To facilitate Order 6 both parties shall cooperate with the other and such cooperation shall include assisting the children with information that may be of interest to the mother and providing email addresses and landline telephone numbers.
The father and the mother are both restrained from forwarding or otherwise advising any member of staff of a school that the children attend that the children have been allegedly exposed to sexual abuse or otherwise abused in the care of the mother or the father.
The Court directs that Order 9 be taken out as a separate order, in addition to being part of these Orders and either parent is at liberty to provide a copy of that separate order to the principal of the school or schools the children attend from time to time.
Neither party shall enrol the children in sporting activities that would interfere with the time the mother has with the children pursuant to these Orders, without the written consent of the mother.
Noted that the parties acknowledge the importance and significance of the children each attending the children’s school for school activities and/or events which parents are invited to or normally attend.
The father shall facilitate the attendance of the mother at events referred to in Order 12, including ensuring the mother has not less than 10 days notice of any such event and any printed information produced by the school shall be forwarded by the father to the mother when the children have time with the mother.
Each party shall direct the school to ensure each party receives notices of significance in relation to the children’s schooling, including the provision of school reports.
Noted neither party is restrained from reasonably attending the children’s schools.
The father is restrained from living outside a radius of 20 kilometres of the Post Office at O.
In the event both parties are of the view that the children should attend for counselling such counselling shall not occur without each of the parents being involved in such counselling.
The parties and the children shall attend for therapeutic counselling with a counsellor nominated by the Independent Children’s Lawyer after three months of the date of these Orders, but before the expiration of six months of the date of these Orders. The intention of such counselling is for the purpose of the parties improving their level of communication and for confidence building in each others capacity to parent the children. Such counselling is not for the purpose of investigation or enquiry as to whether the children have been subject to abuse.
The father is restrained from further involving the children in counselling with C Organisation and in particular Ms. S.
The parties shall have equal shared parental responsibility for the children.
Except for any appeal against these Orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

NOTATION:

No order is made in relation to the children’s surnames.
The father does not intend to seek a payment of child support in relation to the children from the mother.
In the event that passports are issued in the future for the children, the father shall hold those passports. Both parties need to consent to any overseas travel by the children.

IT IS NOTED that publication of this judgment under the pseudonym Caplan & Caplan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 3753 of 2003

MR CAPLAN

Applicant

And

MS CAPLAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This matter is about where P born … December 2000 (aged nearly 8) (“P”) and R born … July 2002 (aged 6) (“R”) will live.
The matter occupied 18 days of hearing time before me. The mother represented herself at the final hearing. The matter was heard for fourteen days in June, August and September 2007. Final submissions were completed. Before I had delivered my reserve judgment the mother, on or about 17 September 2007, suffered a manic episode. Upon the father’s application, the children’s time with their mother was suspended and the father was granted leave to introduce further evidence. The mother took some time to recover. A further updated report was sought from the Chapter 15 Expert and the matter proceeded before me for a further four days in September 2008. The father represented himself during the final four days. The second last day of the hearing was the fifth anniversary of the period of time that the parties had been litigating in relation to the two children (there had been an earlier final hearing in 2004).
During the course of these proceedings both parties have made allegations the children were sexually abused while with the other parent.
During the mother’s manic phase in September 2007, the mother alleged the father was a psychopath who had sexually abused the children in a number of ways. The mother also alleged that the father had sexually abused their dead foetus which he had brought home from hospital and put in the freezer.
In final submissions the mother indicated that she no longer holds any view that the children have ever been or are currently at risk of being sexually interfered with in their father’s household.
The father and his new wife M Caplan, the stepmother (and referred to in some documentation as “…”), however still harbor a view that what the children said to them in 2005, about a friend of the mother named EL, sexually interfering with them, was truthful. They do not however assert that there is any current risk in the mother’s household of the children being sexually interfered with by any person.
There was originally a final three day hearing before this Court in November 2004 where final orders were made that the children ordinarily live with their mother. That situation changed at the end of 2005 because of the sexual abuse allegations raised by the father against E. Orders were made for the children to primarily live with their father until a final hearing.
That was three years ago. Those three years are almost half of R’s life and a significant part of P’s life. The children currently live in G in regional New South Wales with their father and the stepmother. They see their mother each alternate weekend. The mother lives in Sydney with her new partner, Mr K.
The mother does not intend to move to or close to G and the father does not intend to move to or close to where the mother resides in Sydney.

SHORT HISTORY

The mother was born in April 1960 and is now aged 48 years.
The father was born in May 1960 and is now aged 48 years.
The parties commenced cohabiting in March 1998 and were married in October 1998.
The parties separated on 1 May 2003.
P was born in December 2000 and is now aged nearly 8 years. R was born in July 2002 and is now aged 6 years.
In December 2004 or January 2005 the father commenced his relationship with the stepmother.
The parties divorced on 27 June 2005.
In January 2007 the father and the stepmother married.

CHRONOLOGY

The following history contains non-contentious facts and assertions made by one party against the other that were not subject to any emphasis during the hearing.
The mother’s first child, N, was born in July 1983 and is now aged 25 years.
The mother and father commenced a relationship with one another in November 1997 and commenced cohabiting in March 1998. At that time the father was working in health services in G.
In October 1998 shortly after the marriage the father says the mother advised him that she had worked as a sex worker. The father asserts that the mother obtained and read pornography.
In 2000 the mother commenced studying for a masters degree and in March 2000 the mother resumed part time teaching. At that time the father was still working full time at G.
After P was born in December 2000 the mother obtained a statement of attainment in Vocational Education and Training (VET) initial teaching and learning. The mother also completed professional development programs.
By May 2000 the mother says she ceased teaching outside the home. In June 2002 the mother obtained a Certificate IV in assessment and work place training.
The parties separated on 1 May 2003 and entered into a residential lease in relation to the matrimonial home which was in the father’s name only.
After the separation in May 2003 the mother said the father visited her home during the day but did not wish to have the children overnight.
By June 2003 however the mother says the father commenced having the children overnight.
In September 2003 the father filed an application for parenting orders in the Local Court. The father said the motivation for him bringing the original court application was that he hadn’t seen the children for nine days in circumstances where, since May 2003, they had had a shared parenting arrangement.
In October 2003 the father says that he went to the former matrimonial home to collect furniture and the father says the mother hugged and kissed Mr LG in the father’s presence and the father complained in an email about that.
On 31 October 2003 there was an incident where R injured her thumb and the father excluded the mother from her treatment at Hospital.
On 6 November 2003 the mother says that she emailed the father regarding a consistent parenting approach and routines. The mother says she received a response from the father including “be very very careful [mother’s name]. I’ve seen what sexual allegations you make against ex partners. A lot of other people are also aware”.
On 7 November 2003 the police applied for an Apprehended Violence Order (AVO) on the mother’s behalf and an interim AVO was made against the father. Apparently contact changeovers then occurred at a police station until June 2004.
On 24 November 2003 the father sent an email to the mother about contact and a further interim AVO was made.
On 12 December 2003 interim parenting orders were made in the Family Court of Australia.
The mother moved from G to W in March 2004. The mother says that she was responsible for all the driving to and from G to enable the children to see their father and the round trip was about 480 kilometers per week.
In June 2004 the changeovers at the police station ceased and changeovers commenced at W Pre School instead.
In July 2004 the father obtained an AVO against the mother; the mother saying this was in circumstances when her solicitor failed to hear the matter being called.
On 30 November 2004, after a three day hearing, Collier J made final orders that the children ordinarily live with their mother and made property orders. One specific order made required each party to keep the other informed as to all medical and dental appointments and treatment.
At the time the final orders were made in November 2004 the father was living in G and the mother was living in W. The children were handed from one parent to the other at B.
On 28 December 2004 the mother filed an appeal against the property orders made by Collier J.
On 17 January 2005 applications for an AVO against the father, brought by the mother and N, were dismissed by a Magistrate in the Local Court.
In February and March 2005 the father says that P said things that may indicate she may have been sexually abused by a person by the name of EL, a friend of the mother’s.
P was interviewed by JIRT on 4 March 2005.
On 9 March 2005 the mother took both children to see Dr H, a general practitioner. P said things to Dr H that caused the doctor to make a notification to the Department of Community Services (DoCS or the Department).
The actual progress note by Dr H for 9 March 2005 in relation to P is in the following terms:
“History: mother presented, said DoCS visited her as there were allegations that her BF had interfered with her children by putting his fingers in their vagina, thus asked me to examine the two children (mother told me this without children being aware). I proceeded to examine [P], a lovely and talkative girl. When I asked her if there was any one who touches her in the vagina she says herself and mom to clean and also her friend [AL] put his fingers there then a snake went in. I asked her what she did. She says she cried because she was afraid of snakes. She also said that her mother was around when this happened and it happened twice. She says no one else touched her and she was not touched in her bottom and no snake went in her bottom”.
The note also records that the doctor contacted the Child Protection Unit who gave her the number of DoCS in W and she spoke to an intake officer, …, who told her that the case manager was not around and he would contact her later.
The father was not satisfied with the Joint Investigative Response Team (JIRT) inquiry. On 17 March 2005 the father took the children for a consultation with Dr BD, a paediatrician. The father says that the reason he went to see Dr BD was because P was having night terrors and he was worried about the after effect of what in his view at that time (and to the present time), was the sexual abuse of P.
On 29 June 2005 the mother withdrew her appeal against the property orders made by Collier J on 30 November 2004 and further property orders were made by consent.
In August 2005 the father and the stepmother say that P said things that may indicate that R may have been sexually abused by EL. These allegations, which are central to what has happened since final orders were made by Collier J in November 2004, are discussed in greater detail later. The father says in September 2005 P was influenced by her mother to withdraw her allegation against EL.

On 19 October 2005 a Local Court Magistrate discharged the Orders that Collier J had made on 30 November 2004 and made an interim order that the children reside with their father and made other orders aimed at protecting the children from EL.
The children came into the primary care of their father. The mother appealed from that interim decision and on 15 November 2005 Collier J dismissed the appeal except that he suspended rather than discharged the Orders he had made on a final basis on 30 November 2004.
In 2006 the father took the children to C Organisation. This was as a result of P exposing herself at school at the end of 2006. The problem was she exposed herself, showed no remorse and changed her story about what had happened.
There were a number of reasons why the final hearing was not listed to commence until over 18 months later. There was a suggestion that the father had deliberately delayed it for tactical reasons but I am unable on balance to find that is so.
The initial hearing of this matter took place before me over fourteen days (18 – 22 June 2007; 6 – 8 August 2007; 13 – 17 August 2007 and 6 September 2007).
On 17 August 2007 there was a changeover at M Service Station. The father, his the stepmother and the children waited for about half an hour before the mother arrived to pick them up. Much of that time was filmed by video surveillance equipment. The mother obtained a copy of that footage. She saw sinister overtones in what happened in that footage and formed the opinion that the father may have been involved in sexual activity with the children during the period of time that they were waiting to go with their mother. I discuss this assertion in more detail later.
At the conclusion of the fourteen days of hearing on 6 September 2007 I reserved my judgment.
Following the conclusion of the hearing on 6 September 2007, the mother suffered a manic episode the result of which caused her to believe, amongst other things, that the children had been sexually abused at the hands of the father.
On 14 September 2007 the mother had the children with her. She telephoned DoCS and made complaints about the father abusing R.
At the scheduled pickup time on or about 16 September 2007 the father received a text message from the mother saying:
“not tonight, family emergency. Girls fine, sort out tomorrow. Couldn’t be helped.”
The father responded requesting information. The mother advised:
“can’t now is emergency, girls fine sort morn.”
The mother says on 17 September 2007 R disclosed to her “daddy put cream on her and put his fingers in her bottom”. The DoCS records disclose a reporter called DoCS and reported that the father had digitally penetrated and sodomised the children. The mother admits that she was the reporter. The DoCS record (Exhibit HHH) in part reads:-
“Caller states she has tried to get emergency assistance and are now in a motel in hiding.
Caller states that 2 weeks ago she found out by her daughter [R] that her father has been digitally penetrating and sodomising her daughters.
Caller states [R] has red mark around her mouth, like windburn (caller states “this is from father face fucking [R]”) and described the burns as “dcik (sic) burns”.
Caller also states that [R] has a scar under her lip due to father bitting her.
Caller states the girls have been groomed to perform ritualized sexual acts on him. Caller states [R] has like a script of what she is expected to say. First [R] has to say “please” to every thing she wants. [R] then said “ill give you no chance” [R] is made to be difficult. Then makes them speak in different languages.
Caller states [R] has been disclosing this over the weekend.
Caller reports ever since her daughters were born part of a paedophile ring, caller has names and details of 3 men who work for the NSW Health and are part of these paedophile rings. (caller will not give any names or details of these men unless she has 2 female JIRT officers come to her).
Caller has spoken to JIRT [Ms EN].
Caller states she currently has [R] with her and [P] is in a safe place.
Caller states father is psychopathic and compares him to “Hannibal Elector (sic) and Ivan Molat (sic).
Caller states that she lost a baby in the past father took the dead baby home put it in the freezer and sexually abused the body.
Caller states she has not taken [R] to Hospital given father works for health and child is traumatized by a hospital due to what father has done to [R].”
The father received a telephone call from Ms MB from DoCS. The father advised that there have been allegations made about the children. At 4.35p.m. the father received a text message from the mother:
“girls fine, while here [R] getting speech probe check, will adv tomorrow.”
It is not in dispute that that message gave a false impression as to what was happening with the children.
The children were medically examined at Liverpool Hospital on 18 September 2007.
The children were subsequently interviewed by authorities. A tape of the interview between JIRT and R is in evidence. The authorities concluded that the children should be returned to their father and that arrangement was made. The children returned to their father on 20 September 2007.
On 25 September 2007 the mother spent two hours with police, asserting that R’s life was in danger and requesting that she collect R that evening.
On 26 September the mother telephoned the Department asserting that the father controls the minds of those around him through hypnosis and neuro-linguistic programming. She asserted that the father had used his influence on a judge, two barristers, two solicitors and an associate professor in psychiatry. She said the father was a hypnotic and charismatic cult leader.
On 17 October 2007 I made orders suspending the order for the mother to have time with the children except for telephone communication, that the mother have liberty to apply on 48 hours notice and that the Independent Children's Lawyer inform the mother of the orders that I had made. I stood the matter over to 7 November 2007.
On 7 November 2007 I granted leave to re-open the hearing and for the Independent Children's Lawyer to inspect material that had been produced under subpoena by JIRT. There was an interim hearing as to whether the children should recommence spending time with their mother and in what circumstances.
I made an order that the mother resume time with the children in the following terms:-
…..
3. The mother resume spending time with the children [P] born […] December 2000 and [R] born […] July 2002 as follows:
3.1Each alternate weekend from 5.30pm Friday to 5.30pm Sunday extending to 5.30pm Monday if Monday is a long weekend;
3.2From 5.30pm on 6 January 2008 to 5.30pm 25 January 2008;
3.3Liberal telephone contact.
4.The mother’s time with the children shall be supervised by either [Mr K] or [Ms C] and that those persons shall give a written undertaking to the Court with respect to their role as supervisor, such undertaking to be prepared by the Independent Children's Lawyer and signed by those persons in the presence of the Independent Children's Lawyer.
5. For the purposes of the mother’s time with the children the parties or their nominees meet at the […]Service Station at [M] and that the parties use their best endeavours to make changeovers occur as quickly as possible and such that both parties behave politely toward each other in the presence of the children.
6.The mother be restrained from:
6.1 Taking the children to any medical practitioner for the purpose of medical examination in relation to any allegation of sexual abuse of the children by the father;
6.2 Taking the children to any counsellor, therapist, psychologist or psychiatrist without the consent of the father and the Independent Children's Lawyer or otherwise ordered by the Court;
6.3 Discussing with the children allegations regarding sexual abuse of the children by the father.
7.The mother’s time with the children commence the first weekend following the supervisors giving their undertaking to the Independent Children's Lawyer.
8.The Independent Children's Lawyer be granted leave to photocopy documents produced on subpoena by the Department of Community Services (Sydney South West Area Health Service) and JIRT and shall provide copies of those documents to the mother’s therapist [Ms BC].
9.The parties do all acts and things to attend upon Associate Professor [Q] for the purposes of preparation of an updated report and that she be requested to address the following matters:
9.1Details of any risk to the children in the mother’s care;
9.2an assessment of the mother’s psychological health and the effect if any on her capacity to care for the children;
9.3Recommendations in relation to detailed arrangements proposed by either party in relation to the other parent spending time with the children;
9.4The effect upon the children of continuing intractable disputation and litigation between the parties including recommendations as to how the parties may be assisted to deal with these issues.
10.The Independent Children's Lawyer be granted leave to issue such further subpoena as she may deem to be necessary and to copy any documents produced on subpoena for the purposes of briefing Associate Professor [Q].
…..
The children recommenced seeing their mother on 16 November 2007.
A further report from Associate Professor Q (“Dr Q”) was ordered. Dr Q reviewed the updated subpoena material. The interviews took place on 11 February 2008. A report dated 24 March 2008 was prepared by Dr Q.
On 15 May 2008 the supervision order was changed to a monitoring order and I ordered that the children spend the first half of term 2 and term 3 school holidays with their father and the second half with their mother.
The hearing resumed before me on 8 September 2008 for another four days.
At the commencement of the hearing the father provided a report from C Organisation dated 27 August 2008 by psychologist, Ms S. She gave oral evidence under subpoena.
Dr Q was asked questions arising from her updated report.
The Independent Children's Lawyer maintains the position held in submissions made to the Court in September 2007 and concludes that there does not seem to be any compelling reason to change the present arrangements for the children in any fundamental way.

CREDIT

The mother

Dr Q seemed to agree with the suggestion by the husband that the mother’s personality traits might mean that she tended to be more flamboyant and overdramatic in descriptions about some events.
I am unable to say that the mother deliberately lied or has fabricated evidence. The intense conflict between the parties and this court case has generated stress on the mother which led to her breakdown in September 2007. I accept that she probably believed some of the things that I have not accepted as accurate at the time that she said them. The mother, to her credit, now accepts that some of the things that she said, particularly in her manic phase in September 2007, were not founded in fact.
Over the long period of this trial, the mother seemed to be very open in terms of her attempt to recollect events and also in terms of conveying to the Court how she exactly felt about things.

The father

Dr Q in her first report described the father as presenting as a rather brooding and probably depressing personality and the impression was that he did not reveal much of himself. For a large amount of the time that he gave evidence before me he had a very flat affect.
For most of the time he gave evidence it was consistent with his written evidence.
There were some exceptions.
For example, at paragraph 74 of his primary affidavit the father says that the first time that P said that EL touched her bottom was on 27 February 2005. In oral evidence he said that it was after that date. I was left with conflicting accounts from the father about that important evidence.
As discussed below, the father’s evidence about why he didn’t mention snakes in the four documents that were prepared for the litigation by him in 2005 was unconvincing. He said that in his mind touching was far more important than the references to snakes. This makes no sense given he said he believed references to snakes were phallic references.
During oral evidence the father alleged that after the separation the mother had said to him that unless he signed the matrimonial home over to her he would not see the children again. The father conceded that he had never mentioned that to anybody before. One has to doubt the genuineness of this evidence given that after that the matter went to a full contested final hearing before Collier J at the end of 2004.
I drew the father’s attention to a statement made by Dr Q at page 36 of her first report. That statement was in the following terms:
“[P] would come into bed and touch and kiss inappropriately”
The father said he had no memory of ever saying that to Dr Q. I asked whether or not anything like that had happened and whether or not there had been any display of sexualised behaviour by the children towards him or in his presence. Whilst the father took his time answering many questions, the amount of time that he took to respond to this question was very lengthy. At the end of that time the father simply indicated that he had not observed the children displaying any sexualised behaviour. I was very uneasy about the amount of time the father took to respond to that question and I was less than confident that he was being candid with the Court.
The father also has an interest in flying planes and was shown a document which the mother thought had some bizarre comments on it but I didn’t find them particularly unusual.

Conclusion about the credit of the mother and the father

The parties have been enmeshed in conflict for some time. I accept that they both believed most of what they said during the long hearing. Parts of both parents evidence however, when tested against other objective evidence, is not reliable. I do not find that surprising nor do I believe that either party has set out to deliberately mislead the Court. Where there are differences in the recollections of the parties and I find it is important to resolve those differences, I will attempt to do so by referring to objective evidence or by adopting the version which is inherently more likely.

The stepmother’s credit

The father’s new wife has been involved very closely with this court case since it’s beginning. She was a witness in the first proceedings before Collier J. The parties formed a relationship in December 2004 or January 2005 and the father rang her on the evening of 27 February 2005, the night allegations about sexual abuse in the mother’s household began.
She is a registered nurse and works full time in G Hospital. She has no doubt that the February 2005 disclosure by P and the August 2005 disclosures by both girls are to be accepted as statements which prove conclusively that they had been sexually abused in their mother’s household by EL.
The stepmother says her conviction that the children were sexually abused was reinforced once she had become aware of the contents of Dr H’s notes.
Her conviction was in no way dented by reading page 77 of Dr Q’s first report. Notwithstanding the stepmother had at no stage read the JIRT transcript of the interview with P on 4 March 2005 and Dr Q had, the stepmother was in no doubt that Dr Q had got it wrong.
For reasons I elaborate upon later, I have some considerable reservations about some things the stepmother has said. In particular, in find that I cannot rely upon the stepmother’s evidence about her conversation with Ms MS (DoCS) on 1 September 2005. This is important evidence in the context of the case against the mother.
The stepmother did not accept that initially the children were grieving for their mother. I am unable to say however whether or not the stepmother was being untruthful about that or that she simply lacked the sensitivity to appreciate how the children were feeling at that time. I accept Dr Q’s assessment in her first report that at that time the children were grieving for their mother. Since the end of 2005 and into the future the stepmother will play a very important role in the lives of the children and I accept that she has their welfare at heart. Whilst most of the time she attempted to give her evidence in a straight forward manner, I believe some of her evidence has been coloured by the fact that she is heavily invested in the outcome of these proceedings and some of the evidence she has given has been affected by that. I hope she will read these reasons and review her conviction that the children were sexually abused in the mother’s household during 2005.
There were a number of minor areas where the stepmother’s evidence did not coincide with other evidence in the case. For example, her evidence that P only referred to ‘penis’ as “peeney” starting in 2006 and her evidence about where the children were being minded on Anzac Day.

Mr K

Mr K is the mother’s partner. Overall, I was impressed with the way he gave his evidence.
The one concern I had with Mr K’s evidence was that Mr K was not initially willing to concede that the mother was emotionally unstable in September 2007. He said he was aware that she was talking on the phone a lot to the authorities but that he was just in charge of “operations” which he was very good at. I found Mr K’s evidence about his level of awareness in September 2007 as somewhat alarming. He however did concede eventually that the mother at this time was not in a good state and that she is totally different today than she was then. He also conceded that the mother should not have taken the children to JIRT and that this should never happen again. He assured me that he would counsel the mother against doing such a thing and that if he formed the view that that was going to happen then he would have no problem contacting the children’s father.
Mr K had also not been particularly aware in terms of his role as a monitor when he went to Queensland for the purposes of attending a relative’s wedding. He knew that both Ms C and Ms Y would have been with the mother for part of the weekend, but I was less than convinced that he had turned his mind at all to his responsibilities in respect of him ensuring that monitoring on that weekend occurred.
I accept Mr K’s evidence where that evidence is different from what P has reported about recent events in the mother’s household.
I have formed the view that he is a very positive influence in the mother’s life and provides a bulwark against the risk that the mother might in the future relapse into a manic state as a result of her underlying predisposition.

Mr EL is the person alleged to have perpetrated sexual abuse upon the children in the mother’s household in 2005. I discuss EL’s evidence, including my observations in respect to his credit, in detail below.

Mrs RT

Mrs RT gave evidence that the mother has successfully been able to develop a business in recent times and that she had been organised and delivered on time and the mother had been a consistent supplier to Mrs RT. I have no real reason to doubt any of that evidence. Mrs RT also gave evidence about how the mother had maintained her home in an organised fashion and had created beautifully decorated bedrooms for the children. Again, I have got no reason to doubt that evidence.
Mrs RT, however, was less than observant in my view when she gave evidence that the mother in late September 2007 was calm and in control. Given this was clearly a period when the mother was going through a manic episode I do not accept that Mrs RT’s observations in that regard were accurate.

Ms C

Ms C provides a close support for the mother. She used to be good friends with the father and his family but she has had no contact with them since 2003 and has filed affidavits in these proceedings on behalf of the mother.
She said that she has had no difficulty in her role as supervisor because she has always enjoyed spending time with the mother and the children.
Ms C candidly confirmed that the mother could seriously loose her temper but confined those observations to be referrable to matters in a business context and not matters that related to her parenting. She said the last time she observed that type of behaviour in the mother was about two or three years ago. She did, however, readily concede that the mother had had a breakdown in September 2007. She had spoken to the mother on the Sunday prior to the mother taking R to the authorities.
I was confident that Ms C would intervene on behalf of the children in the event that the mother at any time in the future had another manic episode. I am also comfortable with Ms C’s evidence that it is likely the mother would contact her if such an event would happen. Although Ms C would have difficulty contacting the father, she said she would have no difficulty informing Mr K and no difficulty in securing the children’s safety and I accept that is so.

APPLICATIONS

At the end of the 14^th day, the mother and the father both sought applications in a different form (the mother’s application is set out in Exhibit 47), than they both sought on the 18^th day. At the end of the hearing both the mother and father based their final positions upon the form of the application proposed by the Independent Children's Lawyer.
I set out below the Independent Children's Lawyer’s application during final submissions on the 18^th day. The written minute provided was amended orally by counsel for the Independent Children's Lawyer. The proposed minute refers to “the resident parent”. The Independent Children's Lawyer submitted that “the resident parent” should be the father. The father agreed with that position. The mother, whilst adopting the form of orders sought by the Independent Children's Lawyer, sought that she be the resident parent.
The form of the orders proposed by the Independent Children's Lawyer is as follows:-
1.The Children [P] born […] December 2000 and [R] born […] July 2002 shall live with the resident parent.
2.The Children shall have time with the non-resident parent and such time shall include:-
2.1.From 10.00 a.m. on the first Saturday of the first, second and third term school holidays until 10.00 a.m. on the second Wednesday of those holidays.
2.2.From 10.00 a.m. 23 December for a period of 20 consecutive nights to 10.00 a.m. on the day after the 20^th night in years ending in an even number and from 10.00 a.m. 27 December for a period of 20 consecutive nights to 10.00 a.m. on the day after the 20^th night in years ending in an odd number.
2.3.From 4.30 p.m. Friday to 5.30 p.m. Sunday on each alternate weekend commencing on the first weekend following judgment that coincides with the current orders for alternate weekend time.
2.4.Unless otherwise provided the time on the third alternate weekend during school terms shall commence at 4.30 p.m. on the Thursday and conclude at 4.30 p.m. on the Monday [and the resident parent shall make such arrangements with the Children’s school].
2.5.In the event Anzac Day falls on either a Thursday, Friday or a Monday the following shall apply:-
2.5.1.The extended weekend referred to in paragraph 2.4 shall occur on the Anzac Day weekend.
2.5.2.If the Anzac Day weekend falls on a non-contact weekend then the time shall occur on the Anzac Day weekend and the non-resident parent shall forego contact on the following weekend.
2.5.3.If Anzac Day falls on a Friday the time shall commence at 6.00 p.m. on the Wednesday before the weekend and conclude at 6.00 p.m. on the Monday.
2.5.4.If Anzac Day falls on a Monday time shall commence at 6.00 p.m. on the Thursday and conclude at 6.00 p.m. on the Tuesday.
2.6.In the event the Easter period falls outside school holidays and occurs on a contact weekend the time shall commence at 10.00 a.m. on the Friday and conclude at 4.30 p.m. on the Tuesday [and the resident parent shall make arrangements with the Children’s school if the Tuesday is a school day.]
2.7.Unless the parties otherwise agree in writing, provided the non-resident parent gives the other one months notice in writing such parent shall have the care of the children for the last week of the school term commencing at midday on the Sunday prior to the last day of the school term.
2.8.Such other time as may be agreed in writing and writing includes emails.
3.Unless otherwise provided for in these orders changeovers shall occur at the [M] Hotel.
4.The time provided in Order 2.3 shall be suspended during all school holiday periods.
5.Noted the time provided for in Order 2.7 shall mean that the non-resident parent shall be wholly responsible for the care of the children with the intent that the parent shall be responsible for the children attending school and their various activities. Such parent will then continue the care of the children at the end of the school term into the holiday period in compliance with these Orders if appropriate. The children shall be collected unless otherwise agreed at the front of their school on the Sunday afternoon.
6.The resident parent shall ensure the Children telephone [and or by way of a webcam link] the non-resident parent between 5.30 p.m. and 6.30 p.m. each Tuesday night, and each Thursday night of a non-contact weekend and in the event the children are at [G] on Saturday, between 9.30am and 10.30am on Saturday morning.
7.Each party shall keep the other informed at all times of each others email address and landline telephone number.
8.To facilitate Order 6 both parties shall cooperate with the other and such cooperation shall include assisting the Children with information that may be of interest to the non-resident parent and providing email addresses and landline telephone numbers.
9.Each party is restrained from forwarding or otherwise advising any member of staff of a school that the Children attend that the Children have been allegedly exposed to sexual abuse or otherwise abused in the care of one of the parties.
10.The Court directs that Order 9 be taken out as a separate order, in addition to being part of these orders and either parent is at liberty to provide a copy of that separate order to the principal of the school or schools the children attend from time to time.
11.Neither party shall enrol the Children in sporting activities that would interfere with the time the non-resident parent has with the Children pursuant to these orders without the written consent of the non-resident parent.
12.Noted the parties acknowledge the importance and significance of the Children each attending the Children’s school for school activities and/or events which parents are invited to or normally attend.
13.The resident parent shall facilitate the attendance of the other including ensuring the non-resident parent has not less than 10 days notice of any such event and any printed information produced by the school shall be forwarded by the resident parent to the non-resident parent when the Children have time with the non-resident parent.
14.Each party shall direct the school to ensure each party receives notices of significance in relation to the Children’s schooling including the provision of school reports.
15.Noted neither party is restrained from reasonably attending the Children’s schools.
16.The father is restrained from living outside a radius of 20 kilometres of the Post Office at [G].
17.In the event both parties are of the view that the children should attend for counselling such counselling shall not occur without each of the parents being involved in such counselling.
18.The parties and the children shall attend for therapeutic counselling with a counsellor nominated by the Independent Child’s Lawyer after three months of the date of these Orders but before the expiration of six months of the date of these Orders. The purpose of such counselling is for the purpose of the parties improving their level of communication and for confidence building in each others capacity to parent the children. Such counselling is not for the purpose of investigation or enquiry as to whether the children have been subject to abuse.
19.The father is restrained from further involving the children in counselling with [C Organisation] and in particular Ms. [S].

DOCUMENTS RELIED UPON

I have read the following affidavits:
113.1.Affidavit of father sworn 27 July 2006
113.2.Affidavit of father sworn 15 December 2006
113.3.Affidavit of father sworn 22 May 2007
113.4.Affidavit of the stepmother sworn 27 July 2006
113.5.Affidavit of the stepmother sworn 27 July 2006
113.6.Affidavit of the stepmother sworn 22 May 2007
113.7.Affidavit of the paternal aunt sworn 1 July 2006
113.8.Affidavit of Ms C sworn 26 June 2006
113.9.Affidavit of Mr F sworn 14 August 2006
113.10.Affidavit of Mr F sworn 17 May 2007
113.11.Affidavit of mother sworn 1 September 2006
113.12.Affidavit of mother sworn 28 May 2007
113.13.Affidavit of MR PC sworn 27 July 2006
113.14.Affidavit of Mr K sworn 27 June 2006
113.15.Affidavit of Ms NR sworn 28 July 2006
113.16.Affidavit of Ms NR sworn 17 May 2007
113.17.Affidavit of Ms RJ sworn 7 September 2006
113.18.Affidavit of Mrs Y sworn 8 September 2006
113.19.Affidavit of Ms C sworn 17 May 2007
113.20.Affidavit of Mr C sworn 26 June 2006
113.21.Affidavit of Mr K sworn 21 May 2007
113.22.Affidavit of EL sworn 13 September 2005.
113.23.Mother’s Affidavit sworn 9 July 2008.
113.24.Affidavit of PC sworn 12 June 2008.
113.25.Affidavit of Ms C sworn 23 June 2008.
113.26.Affidavit of Mrs Y sworn 23 June 2008.
113.27.Affidavit of Mrs RT sworn 24 June 2008.
113.28.Affidavit of Mr K sworn 26 June 2008.
113.29.Father’s Affidavit sworn 21 September 2007.
113.30.Father’s Affidavit sworn 29 June 2008.
113.31.Affidavit of the stepmother sworn 29 June 2008.
There are three reports from the single expert, Dr Q, dated 21 May 2007 (first report), 17 June 2007 (second report) and the 24 March 2008 (third report).
I also have a report from C Organisation dated 27 August 2008.
There are a large number of exhibits in the matter (93).

ALLEGATIONS THAT P WAS SEXUALLY ABUSED WHILST IN HER MOTHER’S CARE

The father did make it clear that he didn’t have any concerns about sexual practices of other men apart from EL, in the mother’s household.
The father gave evidence that on 27 February 2005 P said “[EL] touches my bottom, it’s a secret”, and “secrets are like when [EL] kisses me and touches me and says don’t tell dad”.
The father telephoned the Child Protection Agency hotline on this day. He also told the stepmother what P had said to him.
As a result, P was interviewed by JIRT at B on 4 March 2005.
There was a point in the record of interview where Constable DN made an exclamation and asked the case worker whether or not she had any question to ask. It was at a point where P talks about snakes coming towards her face. Constable DN obviously is greatly concerned by the reference (and I infer she is concerned that it is a reference about an attempt by an adult to have oral sex with P). It ties in with what the father said Constable DN said to him when the record of interview was finished and she came out of the room, that is, she had serious concerns. In February 2005 P had just turned 4 but as I set out below, the evidence I have is that she knew what a penis was and referred to it by the name “peeney”. It is unlikely, in my view, that this reference by P should be interpreted as a report of attempted oral sex.
On 7 March 2005 the mother gave an undertaking to JIRT that she would not allow EL to be in her home overnight. The father says that Constable DN advised him that she had given that undertaking.
On 9 March 2005 the mother took both of the children to see Dr H. A disclosure was made by P during the consultation. Dr H made a notification to DoCS as a result.
The father says that on 14 March 2005 EL was present at a contact changeover when the children were returned to their father at 8.30am.
The mother says that on 28 March 2005 P said to her “will you look inside my bottom Mummy? You have to get right up close to see it”.
The father complains that the mother misrepresented to him what had happened during the consultation with Dr H. On 5 April 2005 the mother sent an email to the father about the children’s appointment with Dr H on 9 March 2005. It is clear from the opening paragraph that the mother was aware that order 12 made by Collier J on 30 November 2004 required her to keep the father informed as to all medical appointments and treatment. The relevant part of the email is as follows:-
“[P], [R] and I had an appointment with Dr [H], of […] Medical Centre, at 10am on Wednesday, 9 March 2005.
On 9 March 2005 I advised your legal representatives by email that I would inform you if there was anything to report following this appointment, but there was nothing of any consequence to report.
We all had a general check-up with stethoscope and all that; and a ‘female specific’ check-up as well.
I explained to the girls, as I did to [N] when she was young, that this is a normal ‘girl’ thing to do. We are lucky to have a really nice female doctor here. The girls know and like Dr [H] and she handled their introduction to ‘girl’ examinations with informality, humour, and professionalism. After the doctor’s appointment we went to the “wee-wee” shop ([…] Pathology) together and the girls thought it was great fun to do a wee-wee into a little jar.
I take this opportunity to remind you that I have had problems with UTIs and related issues since childhood. The girls have possibly inherited my weird renal layout but I’m told that this in itself is no problem. However, the girls do seem, in my observation, to have inherited my sensitivity to acidic drinks, in that they get ‘sore wee-wee’ if they drink too much orange/pineapple juice. They love the stuff, of course, but I try to keep them on apple/mango/banana juice for lower acidity. I also encourage them to drink lots of water, and that’s all they drink at [crèche] on Monday now.
As for your queries to me about a ‘report’ and going ‘against doctor’s advice’, neither are applicable to the children’s appointment with Dr [H].
I now refer again to your email of 19 March 2005, wherein you announced to me that the children had seen Dr [BD] on referral from Dr […], and that a ‘report’ was being prepared ‘for DOCS’.
I checked with DOCS and was informed that no such medical examinations and reporting of the children were necessary or had been requested by them - in fact they specifically warned against having unnecessary medical examinations carried out on the children (particularly by male doctors, for some reason).”
On 18 April 2005 the father received an email from the mother confirming that she was at that time in a continuing relationship with EL.
In August 2005 the mother says EL spent time during the weekend at her house when she had the flu.
On 14 August 2005 the father says that P said to him “[EL] touches [R’s] bottom because mine is sore”, and “[EL] reads us bedtime stories because mummy is too busy”.
On 15 August 2005 the father again rang the Child Protection Hotline and also informed the stepmother of what P had said.
On 19 August 2005 the father said that R said “[EL] touch my bottom, I say no, no” and P says to the father “[EL] makes Mummy breakfast in bed and makes us green eggs and ham”. The father asked the children whether or not they were keeping secrets. P is alleged to have said “yes, about [EL] touching [R’s] bottom. He doesn’t touch mine because it’s too sore”. When asked when this happened the child said “before bed”.
On 19 August the father again rang the Child Protection Agency.
On 4 September 2005 it is alleged that P told her father “this morning we gave [EL] his Father’s Day presents”.
This disclosure seems to have stimulated the father into filing the current application which has not been finalised until now.
On 13 September 2005 the father says that P said to him “Daddy, I have to tell you the truth. [EL] did not touch my bottom” and “Daddy, I have to tell you I lied. [EL] did not touch my bottom. Daddy, you and [the stepmother] lied in the court and you told the judge you want [the stepmother] to be my mummy”.
It is then alleged that P later said to her father “you have to be nice to my mummy. My mummy is running out of boyfriends”.
Later that evening P is alleged to have said to her father and the stepmother:-
“Daddy, you have to listen to me. I have to tell you what the truth is. Mummy told me what the truth is. The truth is, [EL] did not touch my bottom”.
As a result of the allegations made on 19 October 2005, the Local Court discharged the final orders that Collier J had made after the defended three day hearing in November 2004. The children were placed with their father. The mother was to have contact on alternate weekends and half school holidays and was to ensure that the person “EL” was not to have any contact with the children. The matter was otherwise transferred to the Family Court of Australia.
As indicated above, the mother appealed the magistrate’s interim decision and Collier J dismissed the appeal except that he suspended rather than discharged his November 2004 orders.

MORE DETAIL ABOUT THE EVIDENCE CONCERNING THE FATHER’S SEXUAL ABUSE ALLEGATIONS

Dr H’s notes

The text of Dr H’s notes are set out above at paragraph 45.
There are a number of comments to make about these notes. The first is it is a hearsay account and Dr H has not been called in this case by anybody to test the accuracy of her record.
There is no indication from the mother that DoCS “visited her”. The contact that she records in her diary note is the police calling her on 8 March. There is no indication in the JIRT interview that R had been involved in any interference.
It is also notable that the note seems to say that P told Dr H that “it happened twice”. It is unclear as to what “it” refers to.
A second entry in Dr H’s notes is in slightly different terms (at tab 2 in ICL 4).
“Mother brought in her 2 daughters after apparently a visit from DOCS because of an allegation of the children being interfered with by her boyfriend, allegedly putting his finger in her vagina, mother was very concerned (?did this happen and if so who and if not has someone been putting ideas in the children’s heads and if so who) she says that her boyfriend only had two instances of being with the children and in both those times she was there (so no possible access but anyway she said she was prepared for her kids not to have any contact with him but she had concerns about her ex-husband who apparently has made a lot of trouble in the past and she proceeded to tell me some of them. She also said could I examine the children and also get some urine MSU & Urine & serology STI screen (claims asymptomatic but with all of these she just wanted a check).”
It seems clear from this entry that Dr H records that the mother told her on that day that there had been two instances of the children being in the presence of her boyfriend prior to the physical examination and she told the doctor on both those occasions that she was present so there was no possible access. It is also clear from the above diary note that she was expressing an intention at the time that the children not have any future contact with EL. This is not surprising given her very recent visit from the police.

The mother gave a fairly emotional description of her attendance on Dr H on Wednesday 9 March 2005. The attendance at the doctor’s surgery and what happened there was obviously something that greatly upset her. She referred to Dr H “getting instruments out”. She said that she had never envisaged that Dr H would carry out the type of physical examination that she carried out to the two children.
She described how immediately after the event she went to DoCS office to attempt to engage them in a discussion but was told by the Department that the investigation had been closed.
I conclude that the reason the mother went to Dr H on 9 March 2005 was because she was sure in her mind that EL had had no opportunity of interfering with the children.
I conclude that P said things to the doctor which greatly surprised the mother.
What P said to the doctor however is very ambiguous.

The father’s evidence

Prior to these proceedings the father had provided other affidavits about the history of statements made by the children in 2005 that might be thought relevant to the issue of whether or not they had been sexually abused or whether or not there was an unacceptable risk that they had been sexually abused.
That material is as follows:-
152.1.Affidavits by the father sworn 9 September 2005; 14 October 2005; 11 November 2005. The father had also prepared and signed a proof of evidence for the proceedings before Collier J on 15 November 2005.
152.2.The stepmother also prepared affidavits which were sworn on 9 September 2005 and 14 October 2005.
Much of that material has been consolidated into the father’s primary affidavit in these proceedings. However, given the importance of this evidence, there is some point in examining how the father’s evidence developed.
The mother provided affidavits of 13 September 2005 and 18 October 2005 relevant to these issues.

Father’s Affidavit 9 September 2005

In his first affidavit filed in the Local Court on 9 September 2005 the father says the following:-
“1.The children, [P] and [R], have both reported to me on several occasions words to the effect “[EL] touches my bottom, it’s a secret”. The first time this occurred was when [P] reported this to me on 27 February 2005.
2.During my contact with the children on 27 February 2005 I noticed that [P] was saying things that were uncharacteristic for her, like “Dad, I will tell you a secret”. I had not heard [P] refer to “secrets” before and I said to her “What’s a secret?”. She replied “Secrets are like when [EL] kisses me and touches me and says don’t tell dad”.”
One inconsistency in the father’s evidence is that in paragraph 75 of the father’s primary affidavit before me, he does not use the word ‘bottom’ at all in relation to the statement on 27 February. The statement that he says P made (in paragraph 75) of his affidavit sworn 27 July 2006 is “she replied ‘secrets are like when [EL] kisses me and touches me and says don’t tell dad’”.
The father says that on 4 March 2005 he attended upon JIRT at B. P was interviewed but not in her father’s presence.
The father asserts that a police officer said to him words to the effect “[w]e are very concerned. She has told us some worrying things. We are concerned enough to go and see [the mother] and to get some undertakings that [EL] will not stay overnight”. The same police officer subsequently told the father about a week later that those undertakings had been given by the mother.
The father then records the following in his affidavit of 9 September 2005:-
“9.In the evening of 14 August 2005 [P] said to me “[EL] touches [R’s] bottom because mine is sore”. She also said “[EL] reads us bedtime stories because mummy is too busy”.“
The father says this was reported to the Child Protection Agency hotline the next day.
I have recorded above that on 19 August 2005 the father said R made a further disclosure. The father says that his current wife, the stepmother, was present when that disclosure was made.
On Father’s Day 14 September 2005 the father spoke to the children by telephone and P said to her father “This morning we gave [EL] his Father’s Day presents”.

Father’s Affidavit 14 October 2005

The next document filed by the father was an affidavit that he swore on 14 October 2005. He in essence responded to the mother’s affidavit sworn 13 September 2005. In response to paragraph 10, the father says:-
“10.I did make a verbal report to Justice Collier at the hearing of the property matters (presumably this is a reference to an appearance on 29 June 2005 when “further property orders were made by consent and when the mother withdrew her appeal”) and the events surrounding the sexual abuse allegations were relayed to him. It was at this time that I discovered that the mother had had the children examined by a doctor for sexual abuse. Her only previous report to me about the children going to the doctor was presented to me as an ordinary visit to the doctor. This visit was notified to me in an email dated 5 April 2005 (the full text of that email has been set out above). Additionally, I did not make further comment or discuss my concerns with the mother to any greater extent because I had been advised by DoCS not to do so. I followed the direction of DoCS.”
The father continues in his response to the mother’s affidavit sworn 13 September 2005 in the following way:-
“13.The children were quite clear to me in what they said as to [EL] making mummy breakfast in bed. Whether the reference to green eggs and ham is a reference to the Dr Suez book or not the children specifically stated that ‘[EL] makes mummy breakfast in bed’.
16.The children have been quite specific about their disclosures. They have specifically stated and referred to bed times.
31.The mother has been aware of my concerns about [EL’s] contact with the children since the making of my original report to the Department of Community Services.”
The father in his affidavit sworn 14 October next sets out an incident that he says took place at McDonalds in B on 14 September 2005 at contact changeover, in the following terms:-
“6.[P] came up to me immediately and appeared quite cranky. She said to him (sic) quite forcibly ‘Daddy, I have to tell you the truth. [EL] did not touch my bottom’. This was the first thing she said to me. Then she said ‘Daddy, I have to tell you I lied. [EL] did not touch my bottom. Daddy, you and [the stepmother] lied in the court and you told the judge you want [the stepmother] to be my mummy’.
7.While [P] was berating me, the mother approached me and started to abuse me in front of the children. Among other things, she said to me ‘you’d better learn to stop lying’. I saw that she then approached [the stepmother]. [The stepmother] moved away and I did not hear what was said between them. I was attending to [P] who was extremely upset about me telling the court that “[the stepmother] was going to be her new mummy’. I found it quite difficult to sooth her…...
10.After the mother left, [the stepmother] came back to where [the children] and I were standing. [P] was still yelling at me. She said ‘you have to be nice to my mummy. Mummy is running out of boyfriends’.
11.Later in that evening when I was putting [P] to bed she again started to talk about [EL]. I called [the stepmother] in and said to her ‘you have to hear this’. [P] said to me ‘Daddy, daddy, daddy, you have to listen to me. I have to tell you what the truth is. Mummy told me what the truth is. The truth is that [EL] did not touch my bottom’. She was quite distressed and appeared to be reciting, as she had her eyes closed and was nodding her head whilst telling us this. She kept repeating the same thing over and over.”
That was the material from the father that went before the Local Court initially at 2.15 p.m. on 13 September and then on 19 October 2005. There were also two affidavits from the stepmother, which in part corroborated what the father said. The Local Court on 19 October 2005 discharged the orders made by the Family Court of Australia on 30 November 2004 and ordered that the children reside with the father and that the mother have contact but that the mother ensure that the person “EL” is not to have any contact with the children and the matter was otherwise referred to the Family Court of Australia.
It appears from the above that although the father had become aware of why the mother had taken the children to see Dr H by 14 October 2005 he was not yet aware of what was in Dr H’s notes.

Father’s Affidavit 11 November 2005

The father prepared a further affidavit sworn 11 November 2005 for the appeal by the mother from a Local Court Magistrate to the Family Court (the appeal is by way of hearing de novo). The father, in his affidavit sworn 11 November 2005, says the following:-
“34.Following the giving of undertakings by the mother on 13 September 2005, [P] said to me words to the effect ‘Mummy said that she was going to ask the court to let her see [EL] again. She is lonely and he has got a soccer trophy that he wants to show me’. I am not aware how the mother was aware that [EL] had a soccer trophy or that he wanted to show it to the children, given her undertakings to the court on 13 September 2005.
35.Upon reading the mother’s affidavit dated 18 October 2005 I recalled [P’s] sudden fixation with ‘snakes’ (the mother’s affidavit spoke of P’s reference to snakes). [P] said on several occasions to me words to the effect ‘There are snakes in my bed’. I said to her words to the effect ‘Are they under the bed? Or on top of the sheets?’ and she was adamant saying words to the effect ‘No, no. They are in my bed’. She also said that ‘[EL] put snakes in my bed’. This heightened my concerns about [EL’s] contact with the children, as [P] had by this time made disclosures about [EL] kissing her and touching her on the bottom.”
Paragraph 35 on the father’s 11 November 2005 affidavit is the first time he gives any evidence about snakes.
The father has made no reference to snakes in his affidavits which he swore on 9 September 2005 and on 14 October 2005.
When asked about paragraph 78 of his primary affidavit in the proceedings, which repeats the allegations about snakes, the father was unable to say when it was that the alleged conversations with P had taken place in relation to snakes. He says, however, it was some time between the initial disclosure on 27 February and in August 2005.
The father also said that he took the reference to ‘snake’ to mean something ‘phallic’. Given that that is the father’s evidence, I find it surprising given the particularity with which he has given other evidence that he did not mention the children’s reference to snakes in either of his affidavits sworn 9 September or 14 October 2005.
Importantly, the father indicated that in 2005 P knew what a penis was. Both children refer to “penis” as “peeney”. P at no time made mention of EL’s “peeney” to either her father, JIRT, Dr J or Dr BD.
It was clear that the father did not tell me the truth when giving some of his oral evidence about snakes. He told me that P had said to him words to the effect that EL touched her on the bottom and told her snakes go into her bottom. When I pointed out to the father that nowhere in any of his written material to date had he made that assertion, he recanted and said that maybe that was something that he read in Dr H’s material. The relevant part of the transcript is as follows (counsel for the Independent Children's Lawyer cross examining the husband):-
Mr Givney: ….[P] talked about snakes in her bed?---She also talked about he touched her on the bottom and said, “That is where the snakes go in.” So yes. Is he trying to make out that I think he was grooming her to use something else? I think he was.
Well, perhaps you would be good enough to explain what you just said? ---[P] said to me on another disclosure, “He touched me on the bottom and said, “That’s where the snakes go.”
His Honour: Where have you ever said that in your affidavits?---I can’t remember the dates, your Honour.
Well, I haven’t looked at all the affidavits yet, but nothing I have read that I know of gives me that information from you…..
Witness: Your honour, if I may help, I think it might have been the disclosure to Dr [H] which I was ---
A subpoena issued to Dr H and filed on 3 November 2005 was returnable on 14 November 2005. This would have been the first time the father had seen the text of Dr H’s notes.
On 15 November 2005 (the day the mother’s appeal was head by Collier J in Dubbo), the father produced a proof of evidence for use in those proceedings. I infer that the father had now become aware of what was in Dr H’s notes. It appears that the reason for the production of this proof of evidence by the father was to connect statements made by P to Dr H where she had used the word “[AL]” with the allegation that EL had sexually abused her. That evidence is in the following terms:-
2.In January or February 2005 on a date I cannot now recall but I think after the Tamworth Music Festival this year (which took place from 13^th to 23^rd January 2005) I had a conversation with [P] when she said to me: “Mummy’s got a new friend called [AL]”.
I said “That’s nice for her”.
3.Over the next few weeks after coming home from visiting her mother [P] would mention ‘Mummy’s boyfriend [AL]”.
She also mentioned “[AL] took us to dinner, we had cannelloni and garlic bread”.
4.Also over that time [P] started to use the words [AL] and [EL] interchangeably. I recall at a time when the children were watching […], saying to [P] “Isn’t [AL] a girl’s name”. ([AL] is a female character in that story)
She said “No mummy’s boyfriend is called [AL]”.
5.In relation to the conversation in paragraph 3 concerning going out to dinner with [AL], I do not now recall whether that occurred before or after the 27^th February 2005.

The stepmother’s Affidavits

The stepmother swore two affidavits which were originally used before the Local Court Magistrate and sworn 9 September 2005 and 14 October 2005.
The stepmother says she was not romantically involved with the father in November 2004 when she was a witness in the first hearing of this matter before Collier J. She said that she became romantically involved with the father in the following month and was romantically involved with him in February 2005. They never lived full time together prior to the marriage, although they did share accommodation on occasions because they were both going out with people who were sharing accommodation together. On the night of 27 February the stepmother was rung by the father at home. She said she was woken from sleep when he rang.
Paragraph 6 of the stepmother’s affidavit sworn 9 September 2005 is in the following terms:-
“On 27 February 2005 I received a telephone call from [the father]. He was distressed and crying, and he said to me ‘[P] has said that [EL] was kissing her and touching her bottom. She said it was a secret and that she wasn’t able to tell daddy. I don’t know what to do. Who do I talk to?’. He was extremely distressed.”
The stepmother said the father was extremely distressed. The stepmother felt obliged as a registered nurse to make a notification to DoCS the following day. She did not see the father face to face prior to telephoning DoCS. On the evening of 27 February 2005 she gave the father a reference to a hotline and the following day she rang a DoCS health worker number that she was able to obtain.
At some time between February and August 2005, the stepmother says that:-
“On various occasions we would inquire about the mother and [EL]. [P] would say words to the effect ‘I am not allowed to talk about [EL] anymore, or I won’t have any brothers to play with’. She would never talk about [EL] even when asked.”
The stepmother makes the point in her first affidavit that the initial disclosure in February 2005 was alarming to her because the disclosure included naming the perpetrator, it being a secret, and there was a report of touching and ‘kissing on the bottom’ (see paragraph 10 of her affidavit). As pointed out above the father’s most recent evidence doesn’t actually say kissing on the bottom it says kissing her and touching her bottom. Having said that, the stepmother didn’t actually hear P say those things. These were things that were reported to her by the father.
The stepmother said sometimes the children would refer to the mother’s new boyfriend as AL. The father hasn’t expressed to her any concerns about any other male persons in the mother’s life since she has had a relationship with him, in December 2004.
Paragraphs 13 through to 19 of her affidavit sworn 9 September 2005 (repeated in her primary affidavit before me sworn 27 July 2006 at paragraphs 21 – 27), the stepmother sets out her evidence in relation to the disclosures in August 2005.
She confirmed that she hadn’t heard either child say anything like what was said on that occasion, since August 2005.
On the topic of talking to the children about self protective behaviours between February 2005 and August 2005, the stepmother’s recollection about how often this happened and what the children were told prior to going to their mother’s home was unconvincing.
Since August 2005 she doesn’t recall any protective conversation taking place between the children and their father or the children and herself.
She had read the father’s affidavit. The father’s affidavit sets out amongst other things the mother’s sexual history which the father recites as including prostitution, rape, lesbianism and pornography. She could not remember however whether or not any of this heightened her concerns in relation to the children being sexually abused and the father had never commented to her about the mother’s unusual sexual practices. She was not aware of any concern existing prior to 27 February 2005. The father had never said to her that concerns about the mother’s sexual history were interwoeven with concerns about the children being sexually abused. He had only ever said that the children had a good relationship with their mother and that the allegations on 27 February 2005 had come as a surprise.
There is nothing in the stepmother’s affidavit evidence about there being anything said about snakes between February and August 2005.
The stepmother says that during 2005 she heard the children talk about snakes. Although it had crossed her mind that there may have been something untoward about the reference she had dismissed that thought without verbalising it. She wasn’t concerned about the reference until she became aware of what was in Dr H’s notes. Her memory of what was in Dr H’s notes was that P had said that EL had put his fingers in her vagina and “that’s where the snake goes in”. After that it was her firm view that the reference of the children to snakes was a reference to sexual abuse.
She did confirm that P knew what a penis was and referred to it as a peeny, but she didn’t remember if P referred to a penis as a “peeney” in 2005.
The stepmother gives evidence that on 14 August 2005 the father reported to her part of what P said to him on that day.
The stepmother says (at paragraph 14) that on 19 August 2005 she heard R say “[EL] touches me. I say no, no and he still touches me”. It seems clear from her evidence that there had been a conversation going on between the father and R prior to that statement being made. This is a conversation that the stepmother did not fully hear and is a conversation that is not related by the father in his affidavit sworn 9 September 2005.

The Stepmother’s Affidavit 14 October 2005

The second affidavit sworn by the stepmother was on 14 October 2005.
In paragraph 15 of the stepmother’s affidavit sworn 9 September 2005 she says, in respect of the conversation on 19 August 2005 which she did hear:-
“[P] was also present in the room. When [R] made the above comments, [P] looked at [the father] and I observed that she looked frightened, as though a big secret had been revealed.”

In August 2007, Dr Q assessed that the mother had a marginally better capacity as a parent than the father but that that margin had to be seen in light of her other comments about the parties being unable to promote the children’s needs. That assessment has to be reassessed in light of the events of September 2007 and the mother’s subsequent recovery.
Dr Q said there was a marked difference in the style of the way each party parented. The mother was warm, effusive and demonstrative. The father was quiet, brooding and less demonstrative. This was a product of their individual personalty types. She would expect that the mother’s household was more exciting for the children, that there was more engagement in imaginative play. Whilst that may be so, the DVD from the service station shows a considerable capacity in the father to have fun with the children.
The mother referred on a number of occasions to the undoubtedly good job she has done in raising N.
In her first report Dr Q put some weight on the fact that N is a fine, well adjusted young woman. Dr Q assessed that the mother should be given considerable credit for that outcome.
Counsel for the husband suggested that it wasn’t all the mother’s doing and that the father had something to do with it and others had something to do with it. This was based on the fact that N lived in the household with the father for a period of time (about 2 ½ years) from when she was about 16 years of age. Also it was based on the fact that N didn’t live with her mother between the ages of 2 and 4 but lived with her father who had a terminal illness and was looked after by a female relative of N’s father. There was rightly no exploration of that history but the mother gave evidence that she saw N almost every day during that period. Clearly there was no long term deleterious affect on the attachment between N and her mother.
I find the mother’s parenting capacity has been amply demonstrated by the way she has raised N.
The mother submits that given N’s history she has had some experience with dealing with small female children who have suffered significant loss. She says that she knows instinctively how to deal with nits, eczema (not put soap in the bath) and toilet training. Whilst I acknowledge that the mother’s experience in raising N gives her valuable insights into how a parent should behave, the father and stepmother have in the recent times also demonstrated an acceptable capacity to attend to the children’s physical and emotional needs.
Dr Q saw the mother’s decision to make a report, which was eventually sent to ICAC, about the father being able to secure preferential treatment for members of his family at G hospital as being more about the warfare between the parties than anything that reflected on parenting capacity.
Dr Q assumed that the children must have been instructed not to talk to their mother about the wedding between their father and stepmother as being an example of the father’s inability to isolate his feelings of anger towards the mother. There is some doubt in my mind as to whether or not the children were actively told not to tell their mother or simply whether the arrangements for the wedding were constructed in such a way as to shield the children from knowledge that the children would then have the capacity to pass onto their mother.
The father at the first final hearing had filmed the mother in his neighbour’s backyard with the neighbour and alleged that the film showed them smoking marijuana. Collier J has already dealt with that issue and said that he was unable to make a finding.
The mother’s parenting capacity was severely compromised by her manic episode in 2007. She has recovered from that.
It is my hope that the parties’ inter-personal bitterness, which has interfered with their capacity as parents, will abate further over time and may be assisted by future therapeutic counselling.

Family violence

I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount: s.60CG.
Apart from the allegations of sexual abuse, each parent has in the past directed against the other (which have been dealt with extensively in this judgment), there is no other serious allegation of family violence in the past and there is no current notification there is any risk of family violence.

Any family violence order

There are no current family violence orders.
The mother made the point that although the AVOs obtained against the father were only ever interim AVOs, they actually were taken out by the police and were continuous between the period November 2003 and January 2005. A final AVO order was never made against the father as the final AVO was dismissed. The father said the mother didn’t turn up in court on that day.
As mentioned earlier, in July 2004 the father obtained an AVO against the mother when, according to the mother, her solicitor failed to turn up to court.

The order that would be least likely to lead to the institution of further proceedings

Little weight can be given to this matter. There would need to be a significant change in the current circumstances for the court to entertain another application in the future (see Rice and Asplund [1979] FLC 90-725). As I mention below, if I am reasonably available, I intend to judge manage any future applications concerning these children.

EQUAL SHARED PARENTAL RESPONSIBILITY

The presumption of equal shared parental responsibility applies in this case. For reasons detailed below I intend to make an order for equal shared parental responsibility. That being so, the provisions of s.65DAA Family Law Act apply. I need to consider a set of orders that would allow the children to spend equal time with each of their parents and, if that is not something that is in their best interests or reasonably practical to consider, whether or not they have substantial and significant time with each parent.

Mother staying in Sydney

The mother has re-established herself in Sydney and now seems to be doing far better in terms of her health as a result of having done so. She has established a business.
I accept it is not viable for the mother to move back to the G region because of the nature of the social connections on the father’s side. The children go to a Catholic Church and a Catholic school. The father has a network of family and friends associated in those activities, so that one important area of social contact is a network who have been by the father’s side during the course of this adversarial process. I am prepared to accept that social events, particularly associated with the children’s school, revolve around social groups which are currently aligned with the father and the stepmother. It would be unrealistic to think that it would be easy for the mother to break back into that social group.
The other set of connections on the father’s side centre around G Hospital. The children’s current GP is a member of that group. Although not a social group it would be unrealistic to think that there weren’t alliances that the mother may be suspicious about.
The mother still has reservations about spending any time with the children in G. I hope she can overcome those reservations to spend one week of the girl’s school term with them in G.
The father said quite simply that he couldn’t afford to move to Sydney.
I accept that the father has valid and strong reasons not to move from G.
I also accept that the wife has valid and strong reasons not to move from Sydney.
Neither parent is prepared to sacrifice the comfort of their current situations to put themselves in a geographical position so that equal time or substantial and significant time could be ordered.
I accept that the father is entrenched and settled in G. His new wife works in G. His parents live in the same region and have regular face to face time with him and the children. The mother took a decision to move from the G/W area to Sydney. Mrs RT was asked questions by the father as to whether or not the mother, by way of using the internet, could carry out the business that she has established in a location away from Sydney. Mrs RT indicated that that would be inconvenient. It is quite clear however that the mother has no intention of moving back to the G area because of the connections the father has in the G area and consequentially the uneasiness the mother feels about living in G.
Section 65DAA(5) sets out the criteria for considering whether or not it is reasonably practicable for the children to spend equal time or substantial and significant time with their parents. In this case the tyranny of distance is such that, given the need for the children to go to school, it would not be reasonably practicable to construct an order that would allow for equal time or substantial and significant time and consequently I do not have to further consider that issue.
Given the level of hostility between the parties and their current inability to communicate about basic matters regarding the children, there may have been other reasons, even if the parties were living in close proximity, that a shared care arrangement between the parties might have been contra indicated.

CONCLUSION ABOUT P AND R’s BEST INTERESTS

In her Affidavit sworn 9 July 2008 at paragraph 66 the mother says in part:-
“I have no concerns about the children in the care of the father. I am content in my relationship with [Mr K], the life we share, the home we have created together, and our relationships with extended family and friends who provide loving support…”
As submitted by the Independent Children's Lawyer, although the mother’s affidavit contains the statement referred to above, there are other paragraphs of her affidavit which seem to indicate that the mother is of the view that there is evidence that could give rise to a finding that the children are being abused in the father’s household.
As set out above, at the foot of page 29 of her most recent report, Dr Q states:-
“Unless there is independent evidence the children are at risk in the father’s care, then the children’s interest are best suited by remaining primarily with him but it is important that contact with their mother is sustained…
It is important for the wellbeing of these children that their primary placement with their father be settled, unless there is independent evidence of risk of harm in that context.”
I find that it is in P and R’s best interests that they remain in G to be primarily cared for by their father.
Some things can be done to create an opportunity for the children to have some more substantial and significant time with their mother.
Dr Q agreed that taking two nights out of a school term (so that one party could have an extended weekend with the children once a term) was not likely to have a deleterious affect upon the children’s education up until high school. The option should also be given to the mother to have one week with the children during the school term in G.

PROPOSED ORDERS AND NOTATIONS

The parties agreed that the changeover location should be the M Hotel. The father and stepmother agreed that at the commencement of alternate weekend time they could leave G at 2.30pm to get to the changeover point by 4.30pm. The mother and Mr K also indicated that they would be able to travel to the pickup point to get there by 4.30pm. It goes without saying it is important that the parties be as punctual as possible. Mr K gave evidence that he had recently decided to take a new route which had less risk of problematic traffic conditions.
The mother floated the idea that some third party should be responsible for attempting to make arrangements between the father and herself. Dr Q pointed out that in extreme cases (such as the current one), that was the purpose of well defined court orders.
As mentioned above, the parties and the Independent Children's Lawyer have fundamentally agreed on the form of orders once a decision has been made as to who will be the residence parent. In framing orders, everybody is mindful of the eight hour round trip that the children face on any regular contact weekend. Dr Q supported additional school holiday time.
During final submissions on the 18^th day there was a discussion as to what orders should be made in respect of equal shared parental responsibility. There were two options. The first was to make an order that the parties consult about issues concerning the long term care, welfare and development of the children but that I either:-
513.1.Give one of the parties ultimate decision making power; or
513.2.I nominate particular areas of decision making in respect of which one of the parties would have the ultimate decision making - for example the father might have responsibility for making decisions about issues in respect of education and the mother might have responsibility for making decisions about issues concerning health.
The other option was for both parties to have equal shared parental responsibility and in the event that they were unable themselves to decide on a particular issue concerning the long term care, welfare and development of the children, then the matter would have to be referred back to the Court and if I am reasonably available, to me. The parties both indicated that they wished the second option be the order that was made.
The mother made a proposal in relation to the father being able to choose from two schools in Sydney should she be the resident parent. Given the decision I have made that the father be the resident parent, I do not have to further consider that proposal.
The mother has expressed some difficulties with the father’s proposal in relation to the children’s schooling. Those reservations arise more around her inability to feel comfortable in going to the current school or the new school proposed by the father than any problem the children have or will have with those proposed schools. The mother provided no specific proposal for the children to be schooled at a location in G other than the schools proposed by the father. Hopefully, some of the problems that arise for the mother in relation to the children’s schooling in G will become less of an issue as a result of orders made, and if the parties are able to form some bridge and improve their skills in working together as parents. I make no order about the children’s schools. If the parents are unable to agree, I may need to make some decision about that in the future. It is my hope it does not come to that.
The mother presented herself as being from a household that was more committed to resolution of matters through counselling. Dr Q agreed that if that was true then a household committed to resolution through counselling is the healthier of the two households. She however did not necessarily accept the underlying premise that the mother was the one who was most committed to resolving things through a counselling approach. In the last four days of the hearing the father seemed happy to accept the desirability of future counselling.
The mother has had counselling for herself over the last couple of years including cognitive behaviour therapy. There is no doubt that the mother’s ability to deal with issues has improved between September 2006 and July 2007 (the dates of the two presentations by the mother to Dr Q). Since the mother’s manic episode in September 2007, she has sought out future assistance with a counsellor, Ms BC and has an established relationship with the general practitioner, Dr MC. This is to her credit.
The mother, with some good humour, describes human beings as being “a work in progress”.
I will make an order for further therapeutic counselling for both the children and for the parties, such counselling to be organised by the Independent Children's Lawyer after a period of three months. The three month period is aimed at allowing some time for the emotional dust of this exhausting piece of litigation to settle.
The father was referred to a letter written by the school principal and he was asked what he had told the school principal about the current case. The father said that all he had ever told the school principal was “there were allegations of sexual abuse”. He was tested on this at a later stage and said that he didn’t see any need to tell the principal any more than that. He told the principal that so that the principal at least had some context in which P might be behaving.
Order 10 is designed so that Order 9 can be taken out as a separate order and given to the school principal so that the principal of the children’s school from time to time will know and it will be recorded in official school records that there has been a finding that there has been no unacceptable risk that either of the children have been sexually abused in either of their parent’s households.
I propose to alter the Anzac Day times that were agreed upon between the parties to make them more consistent with the other travelling times on alternate weekends.
I have made provision for Mother’s Day and Father’s Day and hopefully the problems and uncertainties that have arisen between the parties in the past in respect of these days will not reoccur.
Order 16, which restrains the father from living outside a radius of 20 kilometres from the post office at G, allows the father some flexibility in the future, if he wishes, to reside on a farm outside the centre of G.
The father expressed disappointment that the Independent Children's Lawyer had recommended that Ms S not provide further counselling for the children. He however did not seek to make any submissions against that proposal. For reasons contained elsewhere in the judgment it is appropriate to make the orders sought by the Independent Children's Lawyer which would restrain Ms S from further being involved with the children in counselling.
I have indicated to the parties that I intend to appoint a judge to manage any further applications that are filed in relation to the children. Until further order I intend that be me, if I am reasonably available. I am hopeful however that the parties have well and truly spent sufficient time in my court room and will be able to build upon the decision that has now been reached in relation to where the children will primarily reside. The order that I make however is designed to provide the parties with a relatively quick and simple circuit breaker if they reach a deadlock in respect of any decision that they need to make in respect of the children in the future.

Surname

The children have always been known by the surname “[Caplan]”. The mother and father both use this as the respective surnames but pronounce it different (one a soft “C”; the other a hard “C”).
The mother initially applied to change the children’s surnames.
The mother’s previous surname prior to the marriage was “[W]”. That was the name she was known as in her former employment. She proposed the children be know by the name ‘[W-Caplan].
The mother asked the father a number of questions about whether or not he would agree to a hyphenated surname for the children on the basis that she would then be able to change her surname from Caplan.
The father opposed this proposal.
This is a bit of a chicken and egg question because the mother indicated that she had not formed any firm intention to change her surname and probably wouldn’t do so unless the children were allowed to change theirs.
The children have always been known as Caplan and know themselves as Caplan. The mother did not during the trial demonstrate any compelling reason as to why their surname should be changed and this application was not the subject of any focus during the hearing. The mother, in final submissions on the 18^th day, again raised this issue. This seemed to have been triggered by seeing R on the most recent JIRT tape refer to herself by both pronunciations of Caplan used by each of the parties. I indicated that I did not consider that any basis for the application had been properly developed. In my view, given the way this issue was not highlighted during this long trial, it in my view is not appropriate to determine any issue in relation to change of surname. If the mother wishes to pursue the issue the matter would have to come back to me. I indicated to the mother during submissions that I would need to be convinced that it was in the children’s best interests to change their surnames at their current ages.

At the end of the hearing the father indicated that in the event that I made orders that the children primarily live with him, it was not his intention to seek a payment of child support from the mother and I intend to make a notation to that effect.
There has previously been a difficulty between the parties in relation to passport applications. I intend to make a notation that in the event that passports issue in the future for the children, the father shall hold those passports. Obviously any overseas travel by the children cannot take place without the mutual consent of both the parents.

I certify that the preceding five hundred and thirty-six (536) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate:

Date: 17.11.2008

[2008] FamCA 974

17 November 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness