Cawley and Cawley

FAMILY COURT OF AUSTRALIA

CAWLEY & CAWLEY

[2016] FamCA 899

FAMILY LAW – PARENTING – Where the mother seeks that the two children, aged 11 and 9, spend no time with the father – Where there are allegations of family violence and the father has a history of aggressive behaviour – Where the father has been convicted of offences against minors – Where the children have expressed the view that they do not want to spend time with the father – Best interests of the children – No order made for the children to spend time with the father – Orders made for the mother to keep the father informed of any significant matters affecting the children – Orders permitting the father to contact the children by posting letters and cards to their residence on their birthdays and at Christmas – Orders made for the children to attend therapy.
APPLICANT:	Ms Cawley

RESPONDENT:

Mr Cawley

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

SYC

5937

2013

DATE DELIVERED:

26 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

4, 5 and 6 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Santone Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Blank

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gutierrez

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED
(1)That the children B born … 2005 and C born … 2007 live with the mother.
(2)That the father be permitted to post to each child a letter, or card, and a gift on each child’s birthday and at Christmas, but is otherwise restrained from contacting the children unless requested in writing to do so by the therapist appointed pursuant to Order 6.
(3)That the mother have sole parental responsibility for the children’s care, welfare and development.
(4)That the mother keep the father informed of any significant matters affecting the children’s health and welfare.
(5)That each party be permitted to arrange for the schools which the children attend to provide to each parent copies of documents and information usually provided to parents, including but not limited to reports, newsletters and order forms for school photographs.
(6)That the mother and the Independent Children’s Lawyer (“ICL”), advised by Dr D, confer and instruct a therapist on whom the children will attend, and advise the father of the name and contact details of the therapist.
(7)That the therapist be a clinical psychologist or psychiatrist who will accept a referral under a mental health plan.
(8)That the mother do all things necessary to ensure that the children attend upon the therapist at such times and for such duration as the therapist requires.
(9)That the therapist be at liberty to involve the father and the mother in the therapy, and to discuss the therapy with them, but is not required to do so.
(10)That the father is restrained from contacting the therapist unless invited to do so.
(11)That the therapy is not reportable without an Order of the Court first obtained.
(12)That each of the parents comply with any reasonable recommendation of the therapist, including any recommendation directed to telling the children about the father’s criminal offences.
(13)That the ICL provide the therapist with a copy of the two reports of Dr D and a copy of these Orders and Reasons for Judgment.
(14)That the mother hold the children’s passports.
(15)That the mother be permitted to travel overseas with the children on the condition that the father is provided with an itinerary and copies of return travel bookings not less than two months before the expected departure date.
(16)That within one month of these Orders, each party pay to the Legal Aid Commission the sum of $6,643.50 being the fees of the ICL.
(17)That within one month of these Orders, the father pay to the mother the sum of $2,750 being one half of the costs of Dr D’s updating report.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cawley & Cawley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5937 of 2013

Mr Cawley

Applicant

And

Ms Cawley

Respondent

REASONS FOR JUDGMENT

Ms Cawley (“the mother”) and Mr Cawley (“the father”) are the parents of two children, B born in 2005 and C born in 2007.
The parents commenced cohabitation in 1990 and married in 2000.
They separated on 19 September 2013, when the mother took the children and left the home. The separation was precipitated by an incident of violence. The father was charged and later convicted with assaulting the mother, and a provisional Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother.
On 1 October 2013, the ADVO was made final for a period of one year.
On 11 October 2013, the mother commenced proceedings for parenting orders, seeking, inter alia, orders that the children have unsupervised time with the father each alternate weekend and on Wednesdays after school.
On 29 October 2013, orders were made by consent that provided for handovers to be at the home of the paternal grandmother, Ms E, and the father not to be present.
On 15 February 2014, the father was charged with offences which have been referred to, in these proceedings, as “up skirting”. These offences are listed in the police record as “film person’s private parts without consent – aggravated”. The victims were two 13 year old girls. More will be said of the circumstances later in these reasons.
The mother sought supervision of the children’s time with the father. She did not tell the children what the father had done.
The father was convicted in relation to the up skirting offences and placed on the Child Sex Offenders Register.
On 13 May 2014, Orders were made for the father to have supervised time with the children. The F Contact Centre (“FCC”) were the nominated supervisors.
The file produced by the FCC contains notes of acrimonious encounters between staff and the father and numerous complaints by the father about the service, initially directed to the time it was taking for him to commence seeing the children.
Supervised visits at FCC commenced on 29 November 2014 and continued until May 2015.
On 22 December 2014, Dr D, a child and family psychiatrist, was appointed as a single expert in these proceedings.
The parties settled their property matters in December 2014. The father retained the home and the mother was paid a sum of money.
The parents were divorced on 17 May 2015.
On 29 May 2015, the mother received a telephone call from the police advising her that the father had been charged with possession of child abuse material based on photographs that had been found on his computer of C. The circumstances of that allegation are discussed later in these reasons. It is sufficient to note that it is an agreed fact that the photos of C were taken by the children, not by the father.
On 15 July 2015, the children were interviewed by the Joint Investigation Response Team (“JIRT”). C told JIRT that she and B had taken photos of each other. She also said that she remembered her father “fought a lot with my mum. I can only remember the last fight, nothing else”.
B told JIRT that she was sad because her father “got in a bit of trouble and I haven’t seen him lately”. B said that her father gets angry and “takes it out on people”. She said that is what happened when her parents split up. She said that when her parents fought, she would read C a story.
B said that her father gets “emotionally angry”. Asked to explain, she said:
first it’s an argument, I (sic) only seen it between him and [the mother], gets really angry, [he] hurts me mum (sic), and she doesn’t fight back and gets hurt. I remember the one before they split up, it was the second last day of school of term 3 so we were about to go out the door and I told [the mother] that I changed to non-scripture, because it was boring and [the father] overheard and he got angry at mum because I’d changed that wasn’t the real reason (sic), big things, then they started yelling, fight, [the father] started to hurt [the mother], [the mother] scratched him on the face in self-defence, they came out and the phone line was cut, then mum used the mobile, we didn’t go to school the Police came and we went to Sydney.
B said that her mother yelled at her father to stop. B was in the lounge room and couldn’t see. B said “It happened sometimes, I got used to it, it was scary, maybe once every month”. She said that she was mostly in bed when her parents fought and that C would come to her room.
B said that her father was in trouble “cause he fights with people and Police get involved”.
The first round of interviews with Dr D took place on 18 August 2015.
On 2 September 2015, the father was acquitted of the charges relating to the possession of child abuse material. The mother gave evidence in the father’s defence. He sought the resumption of the supervised contact.
On 16 November 2015, the mother filed an Application in a Case seeking orders that she be permitted to relocate the residence of the children to Sydney and take the children to the United States of America for a holiday. In response, the father sought orders for the removal of the Independent Children’s Lawyer (“ICL”), a review of Dr D’s report, and orders that he spend time with the children on alternate weekends. He also filed a Contravention Application.
On 14 January 2016, Orders were made by Loughnan J permitting the mother to take the children on a holiday to the United States of America and to relocate the children’s residence to Sydney. The Orders provided for the resumption of supervised time with the children at the G Contact Service.
The mother moved with the children to Sydney and rented a home next door to her parents, Mr and Mrs Cox.
G Contact Service declined to provide supervision.
On 5 February 2016, the father attended an intake assessment interview at H Contact Service (“HCS”). The interview was conducted by Ms I. The co-ordinator of HCS, Ms J, was present during the interview and took notes. She forwarded a copy of her notes to the ICL.
The notes record, inter alia, that the father was rude and abrupt and extremely difficult.
The record taken by the HCS of the father’s conversation during the meeting with Ms I in relation to the up skirting offences is set out later in these reasons.
In relation to other matters, the notes record that the father said:
[H]e is amazed at how much he has told us and that he never talks to people about how he truly feels except for today and that is why he is seen as unremorseful. He was told by his lawyer to be honest and truthful so he is seen as remorseful otherwise he will loose (sic) his kids forever.
The father is also reported as saying that:
[T]hat currently everything is going against him and that if things don’t get sorted at the less adversarial trial that he will withdraw from court proceedings and accept supervised contact forever. That once his girls reach puberty and want to poke their mother in the eye with an ice pick they will come and knock on his door and he will be there for them and they can live with him.
The intake form for the HCS recorded the father as saying that he would drink half to three-quarters of a bottle of Jack Daniels but only at night when the children were in bed so it didn’t affect them.
The father was also required to sign an additional service agreement making special provision for him to surrender his telephone and electronic devices on the premises and agree to a trial period of two months before he was accepted into the service.
The HCS intake notes were tendered in interlocutory proceedings. The father disputed the accuracy of the notes and required Ms J for cross-examination. In cross-examination, Ms J gave evidence that the notes accurately represented the conversation between the father and Ms I. She gave evidence that she had asked Ms I to check the notes and that the notes accorded with Ms I’s recollection of the conversation. Ms J said that she took the notes by hand, she typed up her record of the interview that afternoon and the next morning and she then destroyed the hand written notes.
Ms J’s evidence was not shaken in cross-examination. The father, in his affidavit, set out a different version of parts of the conversation. The father did not take contemporaneous notes as Ms J did. Ms J has no motive to misrepresent the conversation. The father has a strong motive to misrepresent those portions of the conversation that reflect badly on him. I accept the evidence of Ms J.
On 9 March 2016, HCS informed the ICL that they were not willing to supervise contact. The notes record:
[The father] has stated he is not willing to deal with the coordinator anymore (sic). He is also expressing an independent witness or recording the session or any conversation (sic) as this is not allowed at the service and he could be required to deal with the co-ordinator. It is not possible that [HCS] can operate this way. Therefore the matter is no longer deemed suitable.
Letters were sent to the parties on 11 March 2016 advising of the decision of HCS not to supervise.
The mother deposed that by March 2016, B was becoming more insistent in relation to questions about why they were not seeing their father. B asked the mother if the father had hurt anyone. B said, after she was interviewed by JIRT, “They were asking me if daddy had touched us. What has he done? Has he touched someone else’s child?” B also said “It must have been something bad for them not to let him see us. What did he do?” She said “I know daddy is violent. Did he hurt someone? …Did he hurt a child and is that why he can’t see us?”
The mother deposed that B’s questioning became so frequent that in or around March 2016 a conversation took place with B in the following terms:
[B]:I am trying to think about all of the reasons why they wouldn’t let us see Daddy. Did Daddy rape a child?
Me:No he didn’t. It’s nothing as bad as that.
[B]:Well I need to know what it is. He must have done something really bad. When can I know? I have a right to know.
Me:Daddy was caught filming up girls’ dresses. Girls a bit older than you.
[B]:Why would he do that? That’s disgusting. Did the girls know? What happened? Were they upset?
Me:Well, Dad got caught doing it and he had to go to Court. I believe they were upset.
[B]:I can’t believe he would do that.
B then started crying.
After March 2016, the children became increasingly reluctant to speak to their father on the telephone. B said to the mother “I don’t want to speak to him. I think he’s disgusting and I hate him”.
In June 2016, G Contact Service (“GCS”) invited the mother to attend an intake session. On 11 July 2016, the mother took the girls for an intake interview. After the interview, at which the mother was not present, the mother deposed that the supervisor told her:
We have decided that given [B’s] views, she shouldn’t spend time with her father. We will tell him but she will also need to explain that to him herself. We have told her that he will ask her about it and she needs to work out what she will say to him.
In the car on the way home, C told the mother that she had told the GCS supervisor that she wanted to come back to the contact centre and see Dad. B agreed that C had said that.
A few days later, C told the mother that she had changed her mind and did not want to see her father.
The mother filed an application to suspend the supervised contact and advised GCS.
On 15 July 2016, B told the mother that her father was trying to contact her on Instagram. He had posted a photograph and a poem on B’s Instagram page.
The children were interviewed for a second time by Dr D on 6 September 2016.

THE ISSUES

At the commencement of the trial, the mother sought sole parental responsibility and orders which would provide for no further contact between the father and the children.
The father sought orders that the family engage in family therapy with a therapist chosen by him. Following the therapy, the father sought that the children spend time with him each alternate Sunday until each child was aged 14 when they should spend time with him in accordance with their wishes. He sought orders for Skype and telephone contact with the children and to attend their school and extra-curricular events.
It was the mother’s case that the father’s history of family violence towards her, and in the presence of the children, his up skirting offences and his personality, combined to present an unacceptable risk to the children if they spent time with him.
The father’s case was that the mother was the author of the present situation. She had fabricated or orchestrated the events of family violence so as to present him in a bad light. She had, in telling B of the details of his offenses, deliberately set out to destroy his relationship with the girls so as to ensure that he had no further contact with them. Her decision to tell B was “strategic” and in this she was aided and financed by her father.
It is necessary to make some assessment of both the allegations of family violence and the nature of the father’s criminal offences.
In assessing the allegations of family violence, it is necessary to have regard to the father’s past behaviour and particularly his criminal antecedents and police records, as well as the evidence of both the mother and the father and what the children have said about family violence.
To assess whether the father’s most recent criminal offences suggest that he poses a risk to the children, it is necessary to look carefully at the surrounding events, and particularly what the father said and did at the time.

FAMILY VIOLENCE

The mother alleges that the father perpetrated family violence upon her from about 1996 until separation.
The father denies those allegations. In his trial affidavit he deposed:
During the relationship there were arguments; however, I have never harmed [the mother] and, where physical contact has occurred, it has been very measured on occasions when I have had to defend myself against kicking, punching, attempts to grab testicles etc, due to concerns I may be injured.
I acknowledge I have initiated some disputes and that some have been as a result of my intolerance of [the mother’s] behaviour; however, I have never been violent and do not consider my grievance a reason to be violent with anyone, much less a person whom I care for.
In relation to the event which occurred on separation the father deposed “I acknowledge that I reacted inappropriately when I covered [the mother’s] mouth to pacify her. It was not my intention to harm her and so far as I could tell she suffered absolutely no harm.” That incident led to the father being convicted of assaulting the mother.
The mother made allegations that the father had kicked a puppy at the family home which caused the death of the puppy. The father made no reference to that incident in his affidavit. In cross-examination, he admitted that the puppy had been trying to escape from the side passage at the house and that the puppy had come into contact with his steel cap boot and died as a result.
The mother deposed that she had been assaulted by the father on many occasions. Between 1996 and 2005, she estimated that she had been assaulted once or twice each year but that the frequency of the assaults escalated after B’s birth.

The mother deposed that between 2005 and early 2007 there would be times when there were incidents of assault several times a month but also times when there were no incidents for several months. She deposed that, shortly after C’s birth, the tension between the parties escalated which culminated in her calling the police in early 2008.
She deposed that, when C was about five weeks old, the father picked up one of his work shoes and threw it at her, narrowly missing C. She also deposed that, on the same day, the father sat on top of her and pushed her head to the ground so she could not talk.
In relation to the mother’s allegation that the father threw a shoe at her, the father deposed:
With regard to the alleged shoe being thrown, it was a child’s shoe that had been thrown at me from approximately 1.5m away and hit me in the shoulder. I stated ‘oh so we’re throwing things at each other now are we?’ and threw the shoe at the shoe rack which was 2m to [the mother’s] right.
Records produced by police indicate that on 4 January 2008 the police were called to the home. Police records note that the mother told them that she was embarrassed having called police over such a silly thing. She stated that she was upset and wanted someone to talk to so she called the police. When questioned about the call and the report that the father had thrown a shoe at her, the mother informed the police that it was a toddler’s shoe and that it had not been thrown at her but several feet away from where she was. The mother stated to the police that she had no fears for her safety and did not wish them to apply for an AVO on her behalf.
The mother deposed that she observed the father drinking bourbon daily, at times up to three quarters of a bottle of bourbon. I note that the father gave the same information in his intake assessment at the FCC.
The mother deposed that the father had attempted to choke her on seven separate occasions. On the first occasion, before B was born, she blacked out. She deposed that the father was remorseful and crying and she forgave him. The mother deposed that she called the police on three occasions in 2005, 2008 and 2013. She deposed that she was often left with swellings, scratches grazes and bruises, and that the father would grab her face and crush it between his fingers. She said that he would slap and shove her and throw things at her, leaving bruises.
The mother deposed that she once attended upon her general practitioner at K Town after the father threw a bowl at her head. The bowl hit her in the ear and broke. She had bad bruising and ringing in her ears for several days.
Records produced by the mother’s general practitioner make reference to a consultation on 27 July 2011, when the mother told the general practitioner that she had hit her head on a cupboard and had pain behind her ear. The doctor noted bruising behind the mother’s left ear and diagnosed soft tissue injury.
The mother deposed to incidents where the father threw her across the room, locked her out of the house, turned off the electricity after an argument, woke her in the middle of the night by throwing things at her, tried to wipe her with dog faeces, threw out her possessions, stopped her using the internet, verbally denigrated her, hid her car keys, and disabled her car.
Each of the mother’s allegations was put to the father. He denied each allegation.
The father, in cross-examination, conceded that the children had been exposed to various arguments between their parents.
It was his evidence that it was the mother’s choice that she took up the “discussions” as soon as the children were available to be her audience. However, he agreed that the children had been exposed to very unpleasant incidents between the parents and he accepted that, as Dr D reported, the children were traumatised. It was the father’s evidence that the mother had created the situation the children were in, presumably by instigating family violence against him, and that it was therefore up to her to fix it.
In cross-examination by counsel for the ICL, the father denied assaulting the mother on the day they separated but said that he had put his hand over her mouth.
The father said he had been forced to physically defend himself on two or three occasions. On one occasion the father said the mother tried to kick him in the testicles and scratch his face. He reprimanded her like a child and put her in the bedroom and held the door shut. The father said that when that incident occurred the children were in B’s room.
The father conceded that he had become angry on a number of occasions during the marriage and raised his voice and that his demeanour would have been very scary. He said “I know I can portray a very frightening persona.”
The father recounted an incident where, he said, the mother shoulder charged him. He said that he put his hands up and she deflected off him. She fell and hurt her leg. The father thought the children might have been in their bedroom when this incident occurred.
He conceded that he threw a plate at the mother and that it broke and that she needed medical treatment on that occasion. The children were present during that incident. In his trial affidavit, in relation to the mother’s allegation that he had thrown a plate at her, the father deposed:
I had previously thrown a plastic plate at [the mother] in 2008. This was done with my left hand with a very effeminate action after [the mother] had just missed my head with a coffee cup. Whilst I acknowledge my reaction was inappropriate and I regret that in the moment I didn’t find a more dignified means to make my point, again it was not done with malicious intent and was more an attempt to demonstrate the immaturity and futility of throwing objects at each other. I was surprised that it reached her let alone had enough force to break and I do genuinely regret that moment.
The father said, in answer to questions put by counsel for the ICL, that he could become angry when he felt threatened and that he was quick to feel threatened. He said that he could come across as “quite aggressive” and that he could raise his voice to defend himself.
The father agreed that his response, when angry, could be disproportionate and that it has been in the past.
Ms E told Dr D that the father was a “loveable” child “but kids could fire him up really easily”.
The father agreed that the incident of road rage when he followed a lady home was an example of a disproportionate response. When asked why he had followed the lady home, the father said that he was not angry but that she had given him “the finger” and he wanted to talk to her. He said “I needed to understand”, “It was incredibly stupid”. The father accepted that his action on that occasion could be interpreted as threatening.
When asked about the victim of the assault in relation to which he was charged and convicted of assault occasioning actual bodily harm in 1989, the father said that the victim was a former flatmate. He said the assault was a complete over-reaction on his part, that he smashed a bottle and held it against his former flatmate. The flatmate put his hand up and was cut. The father said that he has had difficulty managing his anger throughout his life.
On 30 September 1992, the father was arrested and charged with assaulting police and resisting arrest. On that occasion the father, as he told Dr D, alleges that he fell asleep on the train and the police assaulted him. He was, however, convicted of two counts of assaulting police and two counts of resisting arrest.
In August 2002, there was a road rage incident. The father told police that the other driver gave him (the finger) and he followed the driver to obtain details. On 18 August 2002, the father was fined $200.00 for refusing to state his name and address and $250.00 for negligent driving.
In June 2004 there was a road rage incident. The police record that the driver of a vehicle alleges that the father followed him all the way to his home address and yelled “Your (sic) dead, you don’t know what your got your self in for (sic)”. The records note that the father agreed that he followed the driver home and “did say silly things”.
On 18 July 2006, the father was involved in an altercation with the postman who was riding his motorbike along the nature strip. The postman reported that the father pushed him. Police spoke to the father who denied that he pushed the postman in anger but said that he did approach the postman to tell him to “take it easy” as he was digging up the lawn. The father said the postman then became abusive towards him. There were no other witnesses to the incident.
In 2009, the father was involved in a road rage incident. The female informant told the police that on at least two occasions she had had words with the father about his erratic driving to the point where they had heated exchanges, shouting at each other and gesturing. On the latest occasion, 8 July 2009, the informant told the police that she arrived at work and a man telephoned her regarding her vehicle being for sale as her car had a sign on it with her number. The informant told police that the conversation turned to the man saying derogatory things to her. The father, in cross-examination, admitted that he had called the driver and remonstrated with her about her driving. The police spoke to the father on that occasion but he did not admit having made the telephone call to the female driver.
On 19 June 2010, the father reported to the police that he was involved in a road rage incident with a motorbike where the rider of the motorbike threw something at the father’s vehicle. The police records note that the father said this event had occurred three months prior. The father said that he reported the matter three months after the event because he encountered the same rider again on 19 June 2010.
On 19 September 2013, the father was charged with common assault in relation to the mother and convicted of that offence in early 2014.
The children’s memories of family violence as recounted to JIRT and to Dr D have been set out elsewhere in these reasons. Their perception is of their father being violent towards their mother.
There is no doubt that the children, on any version of the evidence, have been exposed to family violence.
Dr D, after reviewing the material produced on subpoena, commented that the father has a history of dysregulated anger.
Having regard to all the material relating to the father’s history, to his admissions of acts of violence, to his admissions of aggressive and frightening behaviour and to the evidence of the mother’s injury as reported to her doctor, I accept that the father has perpetrated family violence upon the mother and that this occurred at times in the presence or hearing of the children.
I am unable to find, in the absence of any corroborating evidence, that the mother was also a perpetrator of family violence.

THE UP SKIRTING OFFENCES

On 15 February 2014, the father was volunteering at a shelter for the homeless. Two 13 year old girls were also volunteering at the shelter under the supervision of the mother of one of the girls. Another volunteer observed the father to use his mobile phone to film under the skirt of one of the girls. The police were called.
The statement of agreed facts indicated that when the police attended the father was placed under arrest and asked if there was anything incriminating on his phone. The father said “Yeah there is … I’ve never done anything like this before. I stuffed up”. When the police viewed the video files taken by the father, they were seen to depict footage, in relation to one girl, of her buttocks and her underwear for two periods of approximately ten seconds each and three close-up shots of one to two seconds each. In relation to the second child, the police observed close-up shots of her buttocks and shots of her lower body, legs, thighs and upper thigh.
When the police looked at the footage on the father’s phone they also discovered video files taken on 13 February 2014 at a shopping centre. The police record:
Police were able to download footage from the mobile phone belonging to the accused. On viewing the footage it was observed that the accused did record an 18 minute video where he followed young females around a shopping centre. In this footage the accused lines up at an ATM behind two young females in an unknown school uniform and places his mobile phone on the ground behind the girls. He records the girls’ private parts, one female is not wearing underwear. The accused then follows these girls for a sort (sic) period of time. The accused face is evident throughout the recording as is he’s (sic) voice. The accused then continues to ride the shopping centre’s escalators where he stands behind three girls in school uniform as they ride up the escalator. It is clear the accused is reaching his hand forward to record up the skirts of these girls.
The father was charged in relation to the offences against the two 13 year old girls at the shelter and convicted in mid 2014.
In cross-examination the father denied the proposition, put by counsel for the ICL, that this was not the first time he had filmed or photographed young girls.
On 15 February 2014, the father’s mother, Ms E, called the Mental Health Telephone Access Line (“the Access Line”), reporting that the father was suicidal. She reported that he had said to her that he had “No option but to be dead” and feels that he would not get through the night. Ms E told the Access Line that the father had stated that he deserved to be dead due to his lack of control and stupidity and he cannot live with what he has done. Ms E also reported that the father was concerned about the risk posed by the charges and the effect this might have on his family law litigation in relation to the children.
Later on 15 February 2014, the father presented to the Mental Health Unit at K Town Hospital with Ms E. The notes record that he had been charged that day with two counts of an indecent act against a person under the age of 16 years. The notes record that the father said “Part of me is relieved I’ve been caught.” The notes further record “Claims not charged previously but has been taking photos ‘it’s the thrill’”.
In cross-examination it was suggested to the father that the note in the K Town Hospital records inferred that he had been taking photographs of children in the past and the father agreed that that was an inference which was available.
The K Town Hospital notes record that the father was brought to the hospital by his mother after he made threats to harm himself.
Ms E was also interviewed at K Town Hospital. The notes record that Ms E reported that “[Mr Cawley] told me that he has deleted some of the pictures”.
The mother deposed that on the following day, 16 February 2014, Ms E asked if they could meet. The mother invited her to the home. Ms E told the mother that the father had been arrested and charged with “two counts of indecency to minors”. The mother deposed that Ms E said to her “It has been happening for years. He’s been doing it since he got his phone. There are other videos as well.” The mother expressed concern about the father seeing the children and Ms E said to her:
I don’t think he would do anything to the girls, but you shouldn’t let him see them. I am going to tell [the father] to move away and have nothing to do with the girls. [The father] has also requested that you don’t contact your solicitor and you both have a few days to work things out, without it costing you a fortune.
The mother said that she would not agree to that proposal and Ms E said “I understand, I understand. Also, for the girls’ sake, please don’t tell anyone about [the father]”.
Ms E swore affidavits in the proceedings on 6 January 2016 and 13 January 2016. She was also a participant in the interviews with Dr D in 2015. In her affidavit sworn 6 January 2016, Ms E deposed “The mother’s recount of our conversation following the offence is not accurate.”
The father was cross-examined in relation to both the conversation alleged by the mother to have taken place with Ms E on the day after his arrest, and also the statement made by Ms E at the hospital to the effect the father had told her that he had deleted some of the pictures. The father and his counsel were well aware that this was an issue in the proceedings. The father filed a case outline document in which he indicated that the affidavits of Ms E would be relied upon. It was assumed that Ms E would therefore be available for cross-examination. It was only after the father and his partner had been cross-examined that the Court was told that Ms E would not be made available for cross-examination.
Therefore the mother’s evidence in relation to the conversation with Ms E the day after the father’s arrest is unchallenged. Since Ms E did not give evidence to refute the accuracy of the recording made by the hospital, I accept that she told the hospital that the father had deleted other recordings on his telephone. It is highly unlikely that both the mother and the hospital notes would, independently, fabricate such an allegation.
The admission notes on 15 February 2014, note in relation to the father that “he felt embarrassed about what he did today but he reportedly has been doing this for a while.”
On 16 February 2014, the father was referred to the K Town Hospital outpatient service. He was seen at his mother’s home on that day. The notes record that the father told the interviewer that he was “Seeing what I could get away with” and “Kept doing it”. The father described taking the film as an adrenalin rush and said the girls were “objects”.
A further appointment was arranged for 18 February 2014. On 18 February 2014, the father telephoned the Acute Care team in relation to an appointment the following day for review. He stated that he needed to cancel the appointment due to work commitments and said “Besides it won’t do anything, it’s all an arse covering exercise for you lot.” The father asked for an appointment outside of business hours but was informed that the doctor was only available in the mornings on certain days. The record states that the father made derogatory comments about the mental health service.
On 21 February 2014, the Hospital records note that the father “Feels he may act out on his dreams. (i.e. dreamed of taking photos of underaged (sic) girls, then did it.)”
The father said he did not recall saying anything to that effect and, as he had no recollection of saying it, he had to dispute the fact that he had said it. The father had no explanation for why that should appear in the clinical notes. The most likely explanation is that the father said what was recorded.
In his trial affidavit the father deposed “Whilst I understand that my actions would raise concerns, I state that I have no sexual interest in young females.”
In cross-examination by counsel for the ICL, the father conceded that he had pleaded guilty to a charge which had a component of obtaining sexual arousal and said that sexual arousal was a component of why he committed the offence.
The father was convicted of the offences and placed on the Child Sex Offenders Register.
On 17 February 2015, the father was interviewed by Dr L, a psychologist employed by Corrective Services New South Wales. Dr L reported that “During the interview [the father] stated that he thinks it is unusual and laughable that Corrective Services does not check his mobile phone or computer for illicit images.” Dr L reported that conversation to the father’s Community Corrections Officer, Ms M, who reported it to the police.
The father advertised for a tenant to share his home and received an application from a 16 year old boy. The father had a meeting with the 16 year old boy. On 24 February 2015, the father attended with Ms M and asked if he could have the 16 year old boy reside with him. Ms M recorded:
[The father] asked if he could have a co-resident reside with him, he stated he was in contact with a 16 year old male online, this 16 year old wanted to live with him and he could not see a problem with this, he said the only problem is that the male had a girlfriend the same age and she would be visiting his house.

Ms M informed the father that because he is on the Child Protection Register she needed to discuss this information with the police.
On 27 February 2015, Ms M informed the father that if he has any contact with a child he must report this with the police and that he is not to have children residing at his premises.
On 7 March 2015, the police attended at the father’s home and seized his computer. The computer was examined and found to contain a number of internet searches and websites which appeared to have been accessed during 2013 and 2014. The searches included terms such as “Lolita Pre-teens” and “Young girls up-skirt”.
The computer was taken for further examination. Police identified a number of photographs which were not classified as child abuse material. The photographs appeared to be of school age girls and were taken from the waist down. The police noted that the photographs appeared to have been taken in a covert way and were similar to the ones taken with the attempted up-skirting. The police also identified a number of photographs of children in swimming costumes which appeared to have been taken at the K Town swimming pool.
The police also identified nine images depicting C without underwear.
On 29 May 2015 the father was charged with possessing child abuse material in relation to the photographs of C and breaching the conditions of his suspended sentence.
On 29 May 2015, the police advised the mother not to take the children to the next supervised visit because of ongoing investigation. She arranged to attend at the police station on Monday 1 June 2015 to make a statement. The mother identified the images of C. The mother also told police of sexualised behaviour she had observed in C since about mid-2013.
The mother went home and checked her own laptop. The mother’s computer and the father’s computer are networked. The mother found, on her computer, similar photographs of C. The mother telephoned the police and made her laptop available for examination.
When the mother had an opportunity to study the photographs she came to the conclusion that they were taken at a place where the father had not been present and on occasions when the father had not been present. The mother formed the view that the children had taken the photos.
She informed the police.
The mother gave evidence on the father’s behalf when the father was tried in relation to the offences and he was acquitted. The father sent an email to the mother’s solicitors acknowledging her assistance in relation to the proceedings.
When the father was interviewed at HCS by Ms I, the notes taken by Ms J in relation to the up skirting offences record:
·He then went on to say that the opportunity arose where there were two 13 year old girls wearing short skirts and G-strings and he reports thinking this is my opportunity. He said for a short while he thought to himself what are you doing this is wrong but then the thrill of it and the opportunity of doing it and not getting caught made him do it.
·[The father] reports that in one way he is glad he got caught because the excitement and the thrill would have made me do more and I don’t know where I would have stopped because once he got away with an upskirt pick (sic) probably would not have been enough. At this time [the father] was observed to have a smirk on his face.
The notes further record:
·The [father] reports as part of his probation he has to see a psychologist. [The father] reports that he is not sure how this is going to make a difference because he is not a monster or a child paedophile so behavioural therapy won’t help. [The father] reports it was opportunistic that’s all, he just wishes the girls would have been over 16 then he would not have been registered as a sex offender and being watched.
Having regard to all of the available material, I do not accept that the offences on 15 February 2014 were isolated or “one off” offences. I do not accept that the father has no attraction to underage girls.
The consequences of the father’s behaviour, in relation to the risk posed to the children, were considered by Dr D in her report.

THE EVIDENCE OF DR D

Dr D interviewed the family on 18 August 2015. She reviewed the parties’ affidavits and material which had been produced on subpoena. Both of the children told Dr D that they were seeing their father at a contact centre and that it was good to see their father. She commented that both children spoke very positively about seeing their father.
In relation to family violence, the mother told Dr D that even before the parties married, the father was violent towards her and hit her a few times but there was “huge remorse” afterwards. The mother said “He would fly off the handle very easily and he could be quite scary”. Dr D’s assessment of the relationship was that family violence escalated towards the end of the relationship. The mother told Dr D that when contact was stopped, after the father was charged, she explained to the girls that they were not able to see their father because “he had got into an altercation with someone and the court and the police wanted to make sure that they were okay so they wanted the contact supervised”. The mother said that because the girls were used to seeing their father being quite aggressive they accepted that quite easily. The mother told Dr D that she did not know how she could ever tell them about the nature of the charges but that one day she might have to.
In relation to the possibility that the father had been sexually inappropriate with the children, the mother told Dr D “I had an intuitive sense that [the father] hadn’t harmed them in that way.” She told Dr D that she was still of that view. Dr D noted “She is still afraid of him and is fearful of his anger and his temper but she has never seriously thought he was a sexual risk to the girls.”
The mother told Dr D that the girls very much want to see their father, and that she also wanted this no matter what the outcome of the charges. It was the mother’s view that “It is better for them to have some contact rather than none.” The mother was of the view that the contact should be supervised but not by members of the father’s family.
In relation to parental responsibility, the mother could not see how she and the father could communicate with each other. At the time of the interviews with Dr D there was already an issue about the children going to Disneyland. The father was raising objections.
Dr D reported that the father was distressed at not seeing the children.
He reported to her that there were a lot of conflicts leading up to the separation. He specifically referred to a conflict over the children’s dancing lessons saying it “disgusted” him the way the kids were taught to “wiggle” their hips.
Asked about the reason for the separation, the father told Dr D that “He didn’t want to dwell on it” and “it’s not the reason for the assessment today.”
The father specifically did not tell Dr D about an admission to the psychiatric unit at K Town Hospital in April 2015.
Dr D interviewed the children and the father, she reports:
The children now joined us and there was a very emotional reunion. They were clearly delighted and emotional to see their dad and [the father] was extremely moved; he and [Ms E wept] quietly and there were a lot of hugs all round. It was clear that the girls are strongly attached to their father.
Once the emotion of the reunion lessened, the two girls settled easily. They sat close to their father and engaged him continually in chatter, telling him about their activities. [The father] was appropriate and responsive to them as was [Ms E] … [The father] remained very appropriate and interacted very well with the children and they remained entirely preoccupied with relating to him, initiating no interaction with the interviewer and very little with their grandmother …
Dr D commented that B was quite willing to speak with her on her own, but that when this occurred, there was a dramatic shift in her mood and “she became quite preoccupied and there was a depressive theme to her preoccupation”. Dr D reported:
[B] doesn’t sleep well at night; she worries about all these problems. She feels sad; apparently she is going to see a doctor about it. She feels stressed because she is expected to be smart and she is not sure if she can be. She feels sad about her dad. If mum yells at her, then [B] feels as if she wants to see dad. She feels scared because there is noone there to protect them. When dad was there she felt safe. She hears news about people being hurt and that worries her.
[B] remembers mum and dad used to fight ‘a lot’, mostly with words but hitting as well. Dad was angry with mum and used words and hitting. [B] remembers the last day: mum and dad were in the laundry and dad had scratches on his face and mum said ‘you’re choking me’. Mum told them that one day she passed out.
[B] is worried that mum might get into a new relationship and ‘he might hurt mum or he might hurt us’. She wants to see dad ‘but the court says he might hurt us’; she doesn’t think he would. Asked how she knew this, [B] said mum had told them.
B told Dr D that she wants to see her dad and C does too. B said C had been “crying about it too and waking up at night and having dreams about mum and dad being dead”. B said C worries, as does B, that mum or dad might die.
Dr D said:
[B] feels angry with the judge ‘because the judge thinks dad’s going to hurt us but he’s not’. She hears a lot on the news about child abuse and that upsets her. She thinks mum is better recently and not so worried but anything to do with the court upsets her. She thinks that dad is having a bad time ‘because he is missing us’.
Dr D noted that B was intensely and rather morbidly preoccupied with these issues and that there was considerable manifest, sadness and anxiety in her presentation. Dr D had the impression that B had been quite exposed to the issues within the family.
C told Dr D that she was very happy that she was going to see her father. C said that she understood that her parents had separated because they were fighting too much. Dr D stated “She used to hear them but [B] would look after her. She thinks the fighting was mostly with words not with hitting but one time they were bleeding, both of them, that was the last time, and the police came.” Dr D reported that C told her:
They stayed with their grandparents for about six weeks and then they met dad at karate and then they saw dad every weekend and Wednesday ‘and that was the best arrangement’; but then dad got into ‘a little fight’ with someone else, ‘no-one got hurt’. So then they couldn’t see him for about ten months. Then they saw him at the contact centre for about three or five months and then dad got into ‘a tiny fight, just an argument, and got in trouble’. So then they didn’t see him for two or three months. Now they are here today and [C] is very pleased she will be seeing him.
Dr D noted that C told her that she would like the parenting plan to be the way it was before, that they would see their father on Wednesday afternoons and weekends. Dr D reported “C worries that the court might not say they can do this ‘because lots of people have been hurt by their dads and some people think he will hurt us, but I don’t think so; I’m not scared; I want it to be like it was before’”.
Dr D spoke to the mother again after her interviews with the children. The mother reiterated that she wants the girls to have a relationship with their father and that she did not believe there had been any sexual abuse of the girls. She was worried about the future and what will happen when the children are older because the father’s offence involved girls who were around 13 years of age.
Dr D also had further discussions with the father.
He told Dr D about the event that led to their final separation. The mother and the father argued about B’s scripture classes. The father said the mother “gave him the finger”. That made him very angry, which is what they were fighting about, and B saw the event.
Dr D reports the father telling her:
‘She was screaming, saying I was trying to kill her’. To stop her screaming, he put his hand over her mouth. Then she scratched him and kicked him in the genitals. His face was bleeding; [B] came in and cuddled him. Even then he had tried to calm [the mother] down: he suggested they go on holiday, just pack up and go to Queensland. [The mother] said she was going to her parents’ place and taking the children with her. ‘She often threatened to take the children away’ and said things like ‘you’ll never see them again’.
[The mother] calmed down and then she called the police, ‘and all of a sudden she’s bunging it on and crying and saying he’s hurt me’. The claims of him strangling her are not true. ‘It was obvious to the police she was lying; the police more or less said it to me; when they came they realised that; and when it went to court the magistrate actually apologised to me. It was a staged event’.
When asked to clarify the criminal offences, the father said he “could not explain it”. Dr D reports that he said “’I was feeling lonely, worthless, loss of intimacy’; he was doing a volunteer job at a shelter, he has done it before; he wants to help people. Then they had visits at a contact centre.”
Dr D reports that the father told her that it was about eight months before he had contact with the girls again at a contact centre and that went on for five or six months and then there was “this latest rubbish”, that is, the breaches in relation to photographs of C. Dr D noted that this was a highly dismissive description.
Dr D reported that father told her that “As part of his probation the police checked his computer, ‘and of course’ [the father] had done a search on up-skirting after he had committed the offences and the police found that.” The father did not tell Dr D that he done similar searches in 2014.
Asked by Dr D what outcome he was hoping for in the family law proceedings, the father said he “doesn’t know what to expect because [the mother] is intransigent and combative”.
The father told Dr D that his psychologist Mr N had been extremely helpful over the years and the father was still seeing Mr N about once a month. He first began counselling with Mr N a few years before the separation at a time when he was feeling depressed. The father had been in regular consultation with Mr N at the time he committed the offences.
Asked by Dr D about participating in anger management programs, the father said “that hasn’t been an issue for a long time”, but he did admit that he is “the sort of person who if challenged is more likely to go to fight rather than flight”. The father said he also saw it as standing up for himself but he agreed that he easily feels threatened.
Asked by Dr D about his prior police history the father said “One time a bloke confronted me and I won the fight so I was charged with assault”. On another occasion, the father said, he fell asleep on the train and the police assaulted him; he was charged with not having a ticket and resisting arrest and assaulting police.
Dr D stated:
It is apparent that the children have been exposed to family violence and this has had a significant impact on them: both are much preoccupied with the issues, particularly the older girl, [B], who is also somewhat depressed. The history of family violence is of considerable concern since witnessing such (sic) is highly damaging to the development and mental health of children.
In the issue of whether the children are at risk of being exposed to harm, Dr D stated:
Whether the father’s recent sexual offences of up-skirting can be taken to indicate a risk of sexual harm to the children is difficult to determine. The research literature seems to suggest that there is not necessarily a link between voyeuristic offences (that includes up-skirting) and ‘hands on’ offences and that the risk of progression from one to the other is low...
Dr D stated:
What is more robustly supported by research is that there are patterns of behaviour that are correlated with increased risk of sexual offending; these include: antisocial orientation … ; offense-supportive attitudes; conflicts in intimate relationships; general self-regulation problems; impulsivity, recklessness; resistance to rules and supervision; childhood behaviour problems; noncompliance with supervision; violation of conditional release; grievance/hostility and externalising … ; also a history of abuse in childhood; substance abuse problems; extreme minimization or denial; and negative attitude towards intervention … It is evident that a number of these factors apply to [the father], especially a pattern of externalising, as when he attributes blame to others or is dismissive regarding the seriousness of his behaviour or complains that the police treated him unfairly in suspending his contact visits. Externalisation is important in predicting offending behaviour generally …
Dr D stated:
It is evident that [the father] has many antisocial traits including a history of violence both at home and outside the home. His disparaging remarks about police failure to check his computer and his breaches of AVO suggest a lack of respect for the law and are further indications of an antisocial orientation.
Dr D stated that “an antisocial orientation is predictive of sexual reoffending and of offending behaviour more generally … including family violence.”
Dr D concluded “Overall, [the father’s] longstanding pattern of adjustment is one of general dysregulation and disregard for societal rules and so is of some concern.”
Dr D, in relation to the children’s attachments, said “The children are strongly attached to both their mother and their father and also have a very significant attachment to the maternal grandparents”. In relation to the likely effect of any changes in the children’s circumstances, Dr D stated “If contact is not resumed it is likely that they will experience a sense of loss and grief and this separation may have some damaging impact on them”. Dr D stated that although there are no practicable obstacles to the children having contact with their father the issues relating to his offending posed some obstacles.
In relation to the capacity of each of the parents to provide for the children’s needs, Dr D stated:
The father has the capacity to provide for the children in many respects but to the extent that he may have exposed them to violence and to family violence, he has failed to meet their needs for safety, security and freedom from risk of harm. It is generally accepted that exposure to domestic violence is a form of child abuse … Absent the issues of domestic violence, the father’s irritability and anger, and, notably, the pattern of road rage, constitutes exposure to violence … and poses a direct risk of harm to children … and also harm that derives from the psychological impact on children of exposure to adult violence.
Dr D stated “there is also a risk of transmission of violence as children tend to acquire or learn similar patterns of coping with stress.”
In relation to the effect on the children of exposure to family violence Dr D stated
The children are anxious and preoccupied, particularly in regard to their father and the family violence; this is likely to reflect their exposure to such violence. They appear to be protective of their father and this is of concern since it may indicate that they have acquired a vulnerability that can lead to patterns of victimisation in their later relationships; this is a common outcome in those who have witnessed family violence during childhood.
Dr D recommended that there be no direct communication between the father and the mother. She reported that the mother would have difficulty with direct communication because she was fearful of the father and feels intimidated by him. As to the father Dr D stated “Since he clearly has a history of dysregulated anger it would not be advisable for them to attempt to communicate directly.”

In relation to the father’s mental health Dr D stated:
The father has had a number of problems over many years: he suffered a very abusive and disrupted childhood and this caused considerable damage to his psychosocial and psychosexual development, an outcome termed ‘developmental trauma disorder’ … Such trauma has very damaging effects on a child’s development in all domains, social, psychological, cognitive and, most importantly and very apparent in [the father], early trauma causes profound dysregulation of affect and impulse control and this is especially true of boys raised in violent households … Thus, it is apparent that [the father] has had a problem with dysregulated anger for much of his life and to this extent he is a victim of his background. While he denies and minimises these difficulties, police reports provide an independent account and it is apparent that [the father] has manifested road rage on a number of occasions and that he has been violent both outside the home, as well as inside it; these are important indicators of an antisocial adjustment and the likelihood of him having continuing difficulties.
Dr D further stated:
Of particular concern, as already noted above, is the strong externalising focus that is evident in [the father’s] mental processes: he tends to minimise the seriousness of his behaviour and his difficulties and to assign responsibility to others, in victim-blaming attitude; this is not helpful in terms of his current adjustment and it is a negative indicator in terms of prognosis and prospects for rehabilitation.
Dr D noted that the paternal grandmother Ms E also demonstrated a pattern of minimising the father’s difficulties and was similarly dismissive of the seriousness of the sexual offences and thus it would be difficult to rely upon her as a supervisor.
Dr D stated that the risk of sexual harm to the children was very complex but could not be excluded. Dr D stated:
Even if the risk could be excluded, the impact on the mother’s state of mind is very significant. Since the offending was against girls in their early teens, [the mother] is extremely fearful for the safety of their two girls when they reach the pre-teen stage of development and it is understandable that she would react this way.
In her first report, it was Dr D’s view that even if the Court were to determine that there was an unacceptable risk of harm to the children, because they are strongly attached to their father and wished to have contact with him, then there may be a greater risk of harm to the children by severing the relationship with the father. Dr D stated that it would be difficult to progress the contact since contact would have to be supervised and a contact centre is not a long term option. She noted that there appeared to be no other parties who could be involved in supervision, the paternal grandmother being unsuitable. Dr D stated:
Perhaps the only practicable solution would be for the father to meet with the children in a public place, for example lunch at a restaurant or shopping mall. This could occur on a regular basis and cover a brief period of perhaps two hours. Additionally [the father] might be permitted to attend sporting activities or school functions. The mother’s state of mind would have to be considered, whether she could cope with such an arrangement, given that she is understandably anxious about the situation; however she does appear to accept the need for some contact.
Dr D was asked to further interview the children and did so on 6 September 2016.
B told Dr D that she likes living in Sydney and she likes living next door to her maternal grandparents. She said she had been looking forward to seeing her father and they had visited the contact centre to see what it was like, but then she found out why the contact had stopped and that has changed her feelings towards her father. Dr D reported:
[B] found out about this because they had to do police interviews because there were photos of them on his phone. She was asked lots of questions and, ‘I got suspicious; it didn’t make sense in my head’. So afterwards she asked her mum about it and then her mum told her what her dad had done. [C] doesn’t know about this and [B] doesn’t want her to know yet, she feels [C] is too young to be told about it.
Dr D reported:
[B] feels ‘disgusted’ by what her father has done: ‘It hurts me; what if he did it to my friends?’ Asked about other means of staying in touch with her father, [B] said, ‘even phone contact wouldn’t be comfortable’. Asked about emails or letters, [B] seemed reluctant and said she was not sure.
B told Dr D that most of the time she was happy but that if she is reminded about “the stuff with dad” she gets upset. B said she also thinks about the fighting at home. She said she has bad dreams, usually about her father.
C told Dr D that she likes living next door to her maternal grandparents. Dr D reported:
Regarding visits with her father, [C] says she doesn’t want to see him. She used to miss him but she is getting older now and she is getting used to not seeing him. She thinks her parents got divorced ‘to protect us’. She knows that [B] is not going to go to visits so she doesn’t want to go on her own; ‘I don’t feel safe on my own; not that he would hit me, I don‘t think he would, but I feel nervous and not comfortable. I would want either my mum or my sister with me but I know my sister won’t go.
C told Dr D that she had visited the contact centre and “It felt pretty safe”, but even so she would not feel comfortable having visits with her father. C said phone calls would be better than a visit but she still would not be comfortable. She said emails or letters would be okay.
C volunteered to Dr D that it is better that her parents have separated because they were always fighting. C thinks that was the right decision. C told Dr D that when their parents were fighting, “[B] would take me to her room and read me books and I was crying”.
In relation to the views now expressed by the children, Dr D stated:
Since my previous assessment, the children’s views have changed: they now no longer wish to meet with their father.
Since learning of the circumstances of the charges against her father [B] has suffered some distress and has changed her views so she is now reluctant to have any contact with him. She is uncertain whether she can accept any form of communication with him.
[C] does not know about the charges but she too is unwilling to spend time with her father without either her mother or her sister present. It seems possible that she might accept some limited communication by mail or email.
Dr D assessed that the children’s relationship with their father is not as strong now as it was when she previously assessed them. Dr D noted that at present B is anxiously attached to her mother; she said this appears to relate to her learning of her father’s offending behaviour together with the fact that she continues to feel troubled by the family violence that she has witnessed in the past.
Dr D stated:
Both children have anxieties about spending time with the father and it would be psychologically damaging to [B] if she were required to do so; [C] might cope with such a situation but there would be some risk of harm, particularly if she were required to participate alone; she would need the support of an important attachment figure at any such meeting.
In relation to the difficulties of the children spending time with their father, Dr D stated:
There are no practical difficulties to the children spending time with their father but there are major difficulties in terms of the psychological impact this would have. Both children have been affected by witnessing family violence in the past and so are anxious about spending time with their father. Further, [B] is now aware of the nature of the father’s offending behaviour and this has affected her significantly, as is to be expected. [C] is not aware of those matters but she is anxious at the prospect of having to participate in visits with her father without the support of either her mother or her sister.
Dr D stated:
Both children are reluctant to spend any time with their father and any attempt to implement any arrangement is likely to cause them significant distress, particularly for the older girl. [B] is quite clear that she does not wish to spend time with her father; she has been quite distressed by learning of the nature of this offending behaviour, which is to be expected.
[C] remains affected by past exposure to family violence and has symptoms of anxiety and some post traumatic symptoms. Now that [B] is reluctant to spend time with their father, this places [C] in a vulnerable position and she is unwilling to contemplate doing so without either her mother or sister present. Any attempt to implement this against her will would be quite damaging to her psychologically.
In cross-examination, Dr D did not rule out the possibility of the children having some kind of relationship with their father in the future but she strongly recommended that there be no face to face contact while the children are reluctant.
Dr D recommended that the children engage with a clinical psychologist or psychiatrist for the purpose of supportive therapy. She stressed that the purpose of the therapy may be to assist the children to live without contact with their father or, solely at the discretion of the therapist, to explore a resumption of contact with him. Dr D was concerned that both children were traumatised and strongly advised that both children needed professional assistance. She said that it was important that the mother should also engage with the therapist to be supported in her efforts to support the children. The engagement of the father with the therapist would be a matter to be left to the discretion of the therapist.
Dr D stressed that it might be the outcome that the clinician would decide that there should be no reintroduction of the children and the father. Dr D stated that the therapy should continue for as long as the clinician thought it was appropriate with the caveat that by the time B was 14 years old there would be little benefit in trying to change her views.
Dr D said that the purpose of therapy for the children was to explore carefully what their current psychological position was, and to assess whether to accept that the children are not going to see their father, or whether to proceed towards some sort of contact.
She said that the consequences of the children not engaging with a therapist would be quite serious for them because of their exposure to family violence, their grief at losing their father and the difficulties of processing the reality of the offences he has committed.
Dr D said that if the father sought to contact the children that would put more pressure on them and make life more painful for them. This would also have an effect on the mother because she is already anxious.

THE BEST INTERESTS OF THE CHILDREN

At the commencement of submissions, counsel for the father told the Court that he accepted the recommendation of Dr D that the mother have sole parental responsibility for the children.
The mother and the ICL sought orders that the children engage in supportive therapy and that the parents abide the recommendations of the therapist.
The father sought orders that the family engage in family therapy, specifically requiring each of the children to attend sessions with him and that, if the children expressed a wish to spend time with him, there were to be sessions of supervised contact not longer than two hours or Skype or similar communication.
There is no dispute that it would be in the best interests of these children if they were able to have a meaningful relationship with both of their parents. The issue to be determined in these proceedings is whether that is achievable, having regard to the need to protect the children from the harm which follows exposure to abuse and family violence.
The children’s views were canvassed by Dr D. B does not want to see her father. She is reluctant to have any form of contact with him and is uncertain as to whether she can accept any form of communication with him.
C is unwilling to spend time with her father unless either her sister or her mother is with her. That is not a possibility. C might be willing to accept some form of communication from her father by letter or email.
I accept the evidence of Dr D that the children’s views might not be fixed and that their views might change in the course of therapy.
However, at this time, B who is nearly 12 years old is expressing very strong views. C is more ambivalent than B, but her views are clearly expressed.
The children’s views must be given substantial weight, primarily because of the evidence of Dr D as to the psychological harm which is likely to be caused if they are not.
Whilst Dr D in her first report had assessed the children as having a strong relationship with their father, when she saw them recently she reassessed that view. She stated that the relationship with the father is not now as strong.
Dr D, in her first report assessed the children’s relationship with their mother as “strongly attached”. In her second report she assessed B’s relationship with her mother as an “anxious” attachment.
Dr D assessed the children’s relationship with their maternal grandparents to be very significant.
The father has sought to participate in decision making in relation to the children and to spend time with them. He has not been able to do so because of determinations made about the risks to the children posed by his behaviour. Despite there being orders restricting the father’s communications with the children, he has attempted to contact them using Instagram.
In cross-examination, the father said that he had been in arrears of child support because he had used his income to pay for legal advice in priority to paying child support. The father has recently resigned from his employment and has no current income. Whether he will be able to find other employment and thus make a contribution to the children’s day to day expenses is not known.
In relation to the likely effect of changes in the children’s circumstances, Dr D stated in her second report:
It would be extremely damaging for the children’s situation to be anything other than primary residence with their mother since she has been their primary attachment figure since birth. [B] is quite anxiously attached to her mother at present, which seems related to the distress that she has experienced, so she is particularly vulnerable to separation. [C] shows more generalised symptoms of anxiety but would be vulnerable to further distress if separated from her mother or her sister.
Both children have anxieties about spending time with the father and it would be psychologically damaging to [B] if she were required to do so; [C] might cope with such a situation but there would be some risk of harm, particularly if she were required to participate alone; she would need the support of an important attachment figure at any such meeting.
There is significant practical difficulty, in the circumstances of this family, in making arrangements that would enable the children to maintain a relationship with their father.
The father does not suggest that the children should spend time with him at a contact centre immediately. Having regard to my findings about the nature of the father’s voyeuristic behaviour in relation to young girls, and the fact that Dr D does not exclude the possibility that the father might pose a risk to the children, any contact between them would require proper, professional supervision.
In her first report, Dr D considered the possibility of the children meeting the father at a shopping centre for lunch. I am conscious of the fact that the father used a shopping centre to take photos of girls on 13 February 2014. I do not consider that such a venue would provide any protection for them.
The father has a demonstrated record of discord with contact centres and it is not likely that he would accept supervision. In any event, a contact centre would not provide C with the support of an important attachment figure that Dr D says is necessary.
The mother, with the assistance of the maternal grandparents, has done her best to support the children emotionally and physically. The father is highly critical of the mother’s telling B about his offences. I accept that she did what she thought was appropriate in the face of B’s persistent questioning and B’s imagining that a far more serious offence had been committed.
Having regard to the father’s past behaviour and quickness to anger, I am not satisfied that he has the capacity to support the children emotionally if they disagree with him or challenge him. Neither am I satisfied, having regard to the manner in which the father spoke about the mother in cross-examination, that he would be able to restrain himself from making his derogatory views about her known to the children.
The attitude of each of the parents to the responsibilities of parenting needs to be considered.
One of the most important responsibilities of a parent is to treat the other parents with respect. The father’s evidence, particularly in cross-examination, was replete with contempt for the mother and criticisms of her.
The father did not appear to have any real understanding of the effect of his own actions on the children and was cavalier about the effect on the mother. In cross-examination, he said that the mother had created the present difficulties in his having a relationship with the children and that it was up to her to “fix it”.
I accept the evidence of Dr D that the father “externalises” blame. Every difficulty the father experiences is someone else’s fault in these proceedings, usually the mother’s.
The evidence of family violence has been examined earlier in these reasons. The risk of the children experiencing violence towards their mother could be ameliorated by having supervised changeovers or supervised contact but the father does not have a record of co-operative behaviour with supervision. In any event, that is not the greatest risk he poses to the children.
Ultimately, I accept the evidence of Dr D that it is not presently possible for there to be face to face contact between the children and the father.
Both parents accept the evidence of Dr D that the children need therapy with a clinical psychologist. Both parents accept that the involvement of the parents will occur only at the discretion of the therapist.
The father did not explicitly accept that there could be no order made at this time for face to face contact with the children but that is Dr D’s clear evidence.
I do not propose to make an order as sought by the father for unsupervised contact to commence once the children’s therapy is completed. It is not possible to predict that the children will ever be able to spend time with him.

COMMUNICATION

The ICL proposed that the father be able to send one email to the children each month, together with a card or letter and a gift at Christmas and birthdays. The ICL proposed that the mother withhold any communication she believes is inappropriate and that the mother facilitate the children’s communicating with the father if they express a wish to do so.
The mother did not propose email communication but, if the court were to order email communication, she proposed that it be to the email address of the maternal grandfather, with the proviso that emails could be withheld from the children if she thought them inappropriate.
The father asked the Court to order communication by Skype, mobile telephone or any other electronic means if the children wanted such communication.
The evidence does not establish whether any communication from the father would be welcomed by the children.
It may be that, in the course of therapy, the children’s therapist can explore that with them and, if appropriate, invite the father to send a communication through the therapist. I do not consider that the evidence presently supports an order for regular specified communication other than that proposed by the mother and the ICL at birthdays and Christmas.

I do not propose to allow the communication to be censored by the mother. If the father’s communication is inappropriate, then the children will react adversely. It is in his interests to ensure that the tone and content of the communication is appropriate.
The father should be able to obtain information from the children’s schools such as is available to all parents and to be informed of any significant matters affecting the children’s welfare.

RESTRAINING ORDERS

The mother seeks orders restraining the father from attending at the children’s school and at her residence.
There is no evidence that the father has attended at the mother’s residence or that he has any intention of so doing.
I do not propose to make that order.
The father should not attend the school unless specifically invited to do so by the children’s therapist. This would be distressing to the children and counterproductive.

SELECTION OF A THERAPIST FOR THE CHILDREN

The mother has proposed two names. There is no evidence of the qualifications of those two people. Dr D gave evidence that the therapist must be either a clinical psychologist or a clinical psychiatrist and that she would be in a position to make recommendations of suitable clinicians.
The mother submitted that it was necessary that the nominated therapist should be willing to accept a referral under a mental health plan. That is clearly desirable.
The ICL should have some input into the selection.

COSTS OF THE ICL AND DR D’S UPDATING REPORT

Neither of the parents is in a strong financial position. The mother does not work. She has the money remaining from her property settlement, according to her Financial Statement, some $112,000. She has borrowed money from her parents.
The mother has paid for the costs of preparation of Dr D’s updating report. She asks that the father contribute one half of the costs. The father opposed that order.
The father has resigned from his employment where he earned in excess of $180,000 per annum.
The father is in the process of selling his house. Settlement was to take place on 19 October 2016. He will receive a lump sum of about $130,000. He has no particular plans for that money and intends to move to rented accommodation.
The updated report was of significant assistance in determining what the children’s views were at the time of the hearing and in the determination of the issues before the Court.
The father should contribute half of the costs of the updating report.
The ICL’s costs are $13,287. The father consents to an order that he pay half of those costs. The mother does not.
The mother has been represented throughout the proceedings by a solicitor and counsel. She has been able to pay for that representation. The costs of the ICL are minimal. The mother has funds that can be used to pay the ICL’s costs. She should pay half.

I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 26 October 2016.

Associate:

Date: 26 October 2016

[2016] FamCA 899

26 October 2016

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Injunction