CORSON & CORSON (No.2)
[2020] FCCA 1910
•17 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
CORSON & CORSON (No.2) [2020] FCCA 1910
Catchwords:
FAMILY LAW – Interim parenting – orders pending transfer to the Family Court of Australia – whether unacceptable risk of harm to the children.
Cases cited:
Corson & Corson [2018] FCCA 3487
Applicant: MR CORSON
Respondent: MS CORSON
File Number: WOC 886 of 2018
Judgment of: Judge Altobelli
Hearing date: 1 July 2020
Date of Last Submission: 1 July 2020
Delivered at: Wollongong
Delivered on: 17 July 2020 REPRESENTATION
Counsel for the Applicant: Ms Kennedy
Solicitors for the Applicant: Caldwell Martin & Cox
Counsel for the Respondent: Mr Schonell SC
Solicitors for the Respondent: Rossi Simicic Lawyers
Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers ORDERS PENDING FURTHER ORDER
(1)The children X (born in 2013) and Y (born in 2017) (‘the children’) spend time with the Father as follows:
(a)For a period of 8 weeks from the date of these Orders, the children spend time with the Father in accordance with the Orders made 15 October 2019; and
(b)Thereafter the children spend time with the Father in accordance with the Orders made 11 December 2018
(2)The children X (born in 2013) and Y (born in 2017) (‘the children’) communicate with the Father via telephone or FaceTime on no more than 2 occasions per week at 5:30pm as agreed or failing agreement, each Monday and Wednesday at 5:30pm and the Mother shall do all such things required to facilitate such communication.
(3)Leave is granted to each party to provide a copy of the Single Joint Expert Report prepared by Dr B and dated 20 April 2020 to any therapist providing therapeutic assistance to them to address the issues raised in that Report, including but not limited to Dr C for the Father’s therapeutic intervention.
(4)Each parent shall notify the Independent Children’s Lawyer of the name and contact details of persons upon whom they attend for therapeutic support.
(5)The Mother be restrained by injunction from allowing the children to live with, or bringing the children into any contact or communicating with the maternal uncle, Mr D, and from permitting any other person to do so.
(6)The proceedings are transferred to the Family Court of Australia at Sydney to be listed for Directions before a Registrar on a date to be fixed for consideration of allocation into the Magellan Protocol.
IT IS NOTED that publication of this judgment under the pseudonym Corson & Corson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 886 of 2018
MR CORSON Applicant
And
MS CORSON Respondent
REASONS FOR JUDGMENT
Introduction
1.This case continues to be about two children, X who is 6 years old, and her brother Y who will be 3 years old shortly. This is the second time that this Court has been called upon to make a difficult, but important decision in relation to the children’s time with their father. On 11 December 2018, the Court made interim orders in relation to X and Y, and Reasons for judgment were published as [2018] FCCA 3487.
2.These Reasons for Judgment explain why the Court has made further orders for the children to spend time with their father, and for this time to progress to an unsupervised basis.
Background
3.Matters of background are stated in the December 2018 Reasons for Judgment. Where there have been changes, this will be referred to below. The applicable law continues to be as stated in the December 2018 Reasons for Judgment.
4.The Orders made 11 December 2018 provided for the children to spend unsupervised time with their father. This in fact took place until May 2019. Between May and August 2019, the children did not spend any time with their father, because of further disclosures of abuse made by X. In September 2019, the Father agreed, on a without admissions basis, for the children’s time with him to be suspended due to the serious nature of the allegations against him. The Father commenced spending time with the children, supervised by the professional supervised contact service known as E Contact Service and consent orders were made to that effect on 15 October 2019, but on the basis that such time not occur at the Father’s residence.
5.When the COVID‑19 pandemic occurred, E Contact Service advised the Father that they could not continue to facilitate the children’s time with him if it continued to occur at the paternal grandparents’ residence, which was a retirement village. The Mother did not consent to the children’s time with the Father occurring at his home. Nonetheless, by May 2020, the children’s time with their father recommenced at a public place, and then later in May recommenced at the paternal grandparents’ residence. E Contact Service contact was continuing between the Father and the children as at the time of the Interim Hearing on 1 July 2020.
6.The Court notes that the E Contact Service supervised contact records were in evidence. This evidence gives no objective basis for any concerns about the nature of the Father’s relationship with the children, or of any risk of harm considerations pertinent thereto.
7.The other significant event that occurred was the release of the Report dated 20 April 2020 of Dr B, a forensic clinical psychologist who was appointed as the single joint expert in this case. The significance of Dr B’s report will be discussed presently. The Court makes this important observation, however. Whilst it is palpably true that Dr B’s evidence is untested evidence, it is equally true that it is the only objective, independent expert evidence before the Court. Moreover, when significant parts of Dr B’s observations, conclusions and opinions are based on what are, for all practical purposes, admissions by the parents, the weight attached to her Report, even in the context of the present Interim Hearing, is increased.
The competing proposals
8.The orders proposed by the Father are set out in his case outline document filed 25 June 2020. By way of summary, he seeks an order for equal shared parental responsibility, that the children live with their mother when not living with him, and that they otherwise live with him as follows:
a)For a period of four weeks from the date of the orders, each week from 3:00 pm – 6:00 pm Thursday, and then each week from 9.00 am Saturday to 9.00 am Sunday.
b)After the conclusion of four weeks:
i)In week 1 the children would spend time with him from 3.00 pm Thursday to the commencement of school/day care on Friday, and from 9:00 am Saturday – 4:00 pm Sunday; and
ii)In week 2 it would be from 3.00 pm Thursday to the commencement of school/day care on Friday.
c)The Father also proposed orders in relation to special occasions, and a number of other ancillary, but important orders.
9.The orders the Father proposes are reproduced in the First Schedule to these Reasons. In short, the Father was proposing the immediate resumption of unsupervised time, including overnight time. After a period of four weeks, the children would be living with him each Thursday overnight to Friday, and each alternate Saturday overnight to Sunday.
10.The orders proposed by the Mother are set out in the Response to an Application in a Case filed 22 October 2019. In effect, the Mother’s proposal was that the children continue to spend time with their father, supervised by E Contact Service until such time as a place becomes available at a government‑funded supervised contact centre. Amongst other orders, the Mother proposed that the Father be restrained from attending the children’s day care or school except for parent/teacher interviews, and from taking the children, or either of them, to the bathroom and/or toilet. The Mother’s proposed orders are reproduced in the First Schedule to these Reasons.
11.The orders proposed by the Independent Children’s Lawyer are set out as an annexure to her case outline document filed 29 June 2020. This document is also reproduced in the First Schedule to these Reasons. The Independent Children’s Lawyer proposed that:
a)the matter be transferred to the Magellan list of the Family Court of Australia at Sydney;
b)previous orders either be discharged or suspended;
c)the children communicate with their father by telephone or FaceTime no more than twice each week at 5:30 pm as agreed, or failing agreement each Monday and Wednesday at 5:30 pm; and
d)in terms of the Father’s time, this would revert to the Orders made by this Court on 11 December 2018.
12.Whilst the Independent Children’s Lawyer’s proposal referred to the possibility of overnight time, during submissions at the Interim Hearing, and after having heard the submissions made by Senior Counsel for the Mother, and Counsel for the Father, the Independent Children’s Lawyer submitted that the Father should not be having overnight time for the time being. An important proposal of the Independent Children’s Lawyer was that leave be granted to each parent to provide a copy of Dr B’s Report to any therapist providing therapeutic assistance to them to address the issues raised in the Report, including, but not limited to Dr C for the Father’s therapeutic intervention.
13.In short, the Independent Children’s Lawyer was proposing that the children’s time with their father revert to the orders made 11 December 2018, i.e. each Thursday from 3:00 pm – 6:00 pm, and each Saturday from 9:00 am – 6:00 pm, together with daytime contact on Christmas Day, New Year's Day, Good Friday and Easter Sunday.
Summary of the orders the Court will make
14.For reasons that will be set out below, the effect of the orders that the Court will make will be that the current arrangements for the children to spend time with their father continue for a further 8 weeks in terms of the Orders in place. After 8 weeks, however, the children’s time with the Father will be in accordance with the Orders made 11 December 2018, with the exception of Order 8 about telephone communication between the children and the Mother, when they are with the Father. The Court will otherwise make Orders 4, 7, 8 and 9 from the Independent Children’s Lawyer’s minute.
15.The explicit purpose of the Court in framing the orders in these terms is to give to the Mother an 8 week window to obtain the therapeutic assistance that she needs in order to cope with the reality of these Orders.
The evidence before the Court
16.In the Father’s case, he relied on the following documents:
a)Amended Initiating Application filed 8 April 2020;
b)Further Amended Application in a Case filed 8 April 2020;
c)Affidavit of Mr Corson filed 10 June 2020;
d)Affidavit of Mr Corson filed 14 October 2019; and
e)Case outline document filed 25 June 2020.
17.In the Mother’s case, she relied on the following documents:
a)Response to an Application in a Case filed 22 October 2019;
b)Affidavit of Ms Corson filed 11 October 2019;
c)Affidavit of Ms Corson filed 11 October 2019;
d)Affidavit of Mr F filed 22 October 2019;
e)Undertaking of Ms Corson filed 22 April 2020;
f)Undertaking of Ms Corson filed 22 April 2020; and
g)Case outline document filed 25 June 2020
18.The Independent Children’s Lawyer relied on her case outline document filed 29 June 2020.
19.The following material was tendered as evidence during the course of the proceedings:
a)Expert’s Report prepared by Dr B dated 20 April 2020;
b)Tender bundle prepared by the Independent Children’s Lawyer;
c)Tender bundle prepared on behalf of the Applicant Father; and
d)Tender bundle prepared on behalf of the Respondent Mother.
Dr B’s Report
20.Dr B’s Report is extensive. It runs to 76 pages and contains 328 relevant paragraphs. The most relevant paragraph, for present purposes, is her final paragraph:
[328] Regrettably in my view, the Court will need to evaluate the least‑worst outcome for these children.
21.This is undoubtedly a difficult, complex case, and there is no doubt in the Court’s mind that it should be referred to the Family Court for possible inclusion in the Magellan program, but even if this case does not meet the criteria for inclusion, it is a matter where this Court respectfully urges the Family Court to expedite a Final Hearing.
22.The other feature of this case is that it remains a risk assessment exercise. In the Court’s first Reasons for Judgment dated 11 December 2018, the risk emanated primarily from the Father. The risk assessment exercise was, therefore, framed by that context. In the present Judgment, however, the situation is more complex because it is clear that there is a risk to the children from their mother, as well. The nature of the risk is different, but for the children a risk is a risk, whether it comes from their mother or father. In this complex, difficult case, the Court evaluates what it considers to be the least‑worst outcome for these children, pending a Final Hearing in the Family Court that could be delayed a considerable period of time.
23.The extensive material before Dr B is set out in her Report. Dr B had what appears to be all of the relevant material relating to this family at the time of the interviews, as well as documents produced under subpoena. She had all the E Contact Service supervised contact reports up until 25 January 2020.
24.The Court has also had the benefit of all of the material that has been identified above. There is very little material the Court has before it that Dr B did not have. Where there is a difference, in that the Court had evidence or materials that Dr B did not have, the Court does not consider this to be material.
25.Whilst the Court only intends to make reference to Dr B’s evaluation and terms of reference commencing from paragraph 219 of her Report, the Court has carefully considered the preceding paragraphs, and specifically considered each of the paragraphs relied on by Senior Counsel, Counsel and the Independent Children’s Lawyer. It will suffice, for present purposes if paragraphs 219‑328 of Dr B’s Report are reproduced as a Second Schedule to these Reasons for Judgment.
26.The Court makes a number of specific observations, identified in the following dot points:
·At paragraph 222 of the Report, Dr B identifies that the Mother had expressed very strong views that the children should have no contact whatsoever with the Father and the paternal family, including supervised contact. She expressed the view, several times, that the Father had sexually abused X, was grooming her for the purposes of future sexual abuse, and will continue to pose a risk to X. The Court accepts that these are the Mother’s stated concerns. No attempt was made by the Mother to resile from or modify the position she expressed to Dr B. Her Senior Counsel made no attempt to explain, contextualise or resile from these comments. Indeed, the Affidavit of the Mother read in support of the interim orders she sought, is dated 11 October 2019. She made no effort whatsoever to respond to Dr B’s Report in her own evidence, despite being given the opportunity to do so.
·At paragraph 223, Dr B correctly observed that between her initial interviews on 19 August 2019, and later interviews on 14 April 2020 there had been an intense escalation of allegations regarding the Father, and the risk of sexual harm to X. Dr B noted that the Mother explained that her conviction that X had been sexually abused was firming around the time that she was initially interviewed, but by the time of her second interview in April 2020, after reflecting on various things that X had said and done, her conviction had evolved into a firmly developed belief that X had definitely been sexually abused by her father, and this had crystallised to the point where she thought the children should have no contact with him. The Court observes that this is consistent with the totality of the evidence before it.
·At paragraph 223, Dr B writes in the last sentence:
[223]She [the Mother] opined that if the Court ordered unsupervised contact between the Father and the children she would “not send them”.
Again, the Court notes, no attempt was made in her case to explain, contextualise or minimise these comments. There was no suggestion that Dr B was incorrect in recording these comments.
·At paragraph 225, Dr B records, consistently with the Court’s own observations in its first Judgment in this case, that the Father has acted inappropriately with respect to his sexual behaviours, and his interpersonal relationships with adult female work colleagues. Dr B provided the insight that this, no doubt, would have humiliated the Mother, who would have felt disgusted about the Father’s sexual behaviours which included sending explicit video footage of himself masturbating to work colleagues. The Court reminds the Mother about paragraph 37 of its first Reasons for Judgment. She is encouraged to read that paragraph once again. Her feelings of humiliation and disgust are noted, accepted, and indeed understood.
·At paragraph 226, however, Dr B concludes that having very carefully considered the risk to the children of harm, and specifically harm related to the Father’s sexual activities, and taking into account all of the material before her (which is identified in this paragraph), she approached this exercise:
[226]…fastidiously, with an open mind as to the possibility that X may have been sexually abused by her Father.
·However, at 227, Dr B states, and this time it is important to reproduce the paragraph:
[227] In my opinion, there is no indication that the father has posed any direct risk of sexual harm to either of the children, including X. Whilst I have numerous concerns about the father's personality and interpersonal functioning, I do not think he has any specific risk factors with respect to sexual abuse of children. There is no indication that the father has ever posed a direct risk of sexual abuse of any children, including his own children. I think that X’s behaviour and statements may have multiple causes including: acting out/ behavioural regression as a result of stress or maladjustment to her parents’ separation; learned behaviours in response to behavioural and/or emotional reinforcement; exposure to sexualised material such as pornography; a response to multiple investigations and formal and informal interviews in relation to topics of sexual abuse, genitalia and her father generally or as a result of explicit or direct misinformation, or any combination of these factors.
It is important for the Mother to understand that the Court has, independently of Dr B, and based on the totality of the material before it, also meticulously considered the issues of risk to the children and has come to the same conclusion as Dr B. The Father’s past behaviour was disgusting and inappropriate. Even if it were the case that Dr B was not fully appraised of his misconduct whilst working as a public servant, all of that evidence was before the Court and it does not change the Court’s assessment that there is no risk of harm to these children that warrants the continuation, let alone the perpetuation, of supervised contact.
·At paragraphs 228 and 229, Dr B introduces the theme of the risk to the children from their mother. Dr B explains that the Mother’s views of the Father have become so contaminated by her emotional repulsion at his actions that his sexual behaviours have, in her mind, escalated risk to a degree that is not reality‑based. The Mother’s views have escalated and developed. This has increasingly exposed X to intrusive processes including physical examination, and not just one, but two JIRT interviews.
·At paragraph 231, Dr B notes the detailed, leading and suggestive forensic questioning that X experienced from her own treating psychologist, but which did not disclose any sexual abuse of any kind. Dr B noted the observations by the detectives during the JIRT interview that X:
[231] …presented as rehearsed and scripted. Her timeline and details were inconsistent and at times, improbable.
Dr B was concerned, for example at paragraph 238, that the Mother’s escalating concerns have become apparent to X in particular.
·Dr B manifests a clear empathy and understanding of the Mother’s predicament, noting at paragraph 239 that the Mother’s views and concerns had not developed, “in a vacuum” because the Father’s inappropriate behaviour including enormous lack of judgment, defensiveness and lack of insight into his behaviours, and chronic inability to communicate with the Mother, would have clearly and understandably caused her to mistrust him deeply. Nonetheless, as she points out at paragraph 240, even though the Mother is an intelligent and well‑reasoned person, she lacks insight into the long term effects on her children of her own firmly held beliefs and entrenched position.
·Indeed, at paragraphs 240‑241, Dr B explains that her initially pessimistic view about the Mother’s continuing trajectory of assuming malicious behaviour on the part of the Father, had been confirmed and thus she was no longer of the view that the Mother had the capacity to realistically assess risk and reappraise her position over time. This could be because of underlying anxiety and inability to cope with the public humiliation about the Father’s inappropriate behaviours, or a combination of other matters. Indeed, paragraph 241 bears reproduction in full as it demonstrates the tragic complexity of this case, and the risk that she presents to her own children:
[241] I have formed the view that the mother has interpreted almost every action and behaviour of the father as predatory, dangerous and “proof” of her views that the father is grooming X for the purposes of sexual abuse. I think that she finds it impossible to entertain the possibility that the father’s parenting actions are benign and ordinary. I think that she has become so entrenched in this pattern of thinking and interpreting that it is impossible for her to resile from this position, despite the outcomes of independent investigations. Indeed, I think that the mother will reject any conclusion that does not endorse her view, including this report or any conclusion of the court.
·At 263, Dr B states categorically:
[263] There is no indication that the children have been exposed to abuse or neglect.
Indeed, Dr B’s greater concern about the children was exposure to conflict at changeover between the parents. She was clearly concerned about both X and Y displaying regressive behaviours, she thought it likely (e.g. at paragraph 267) that these behaviours were attributable to exposure to inter‑parental conflict, the loss and change that they have had to cope with to date, and their confusion and concern regarding the situation of their own family. Dr B also believed that the children have clearly intuited the Mother’s stress and anxiety in relation to her concern about the Father.
·At paragraph 280, Dr B indicated that there would be significant risk to the children if they did not have any contact with their father, as the Mother proposes. It should be noted of course that the Mother’s proposal for the present Interim Hearing was that the children continue to have supervised contact with their father. The dissonance between the interim proposal, and what the Mother told Dr B is unexplained by any evidence the Mother gives, or any submission made on her behalf.
·Dr B had concerns about aspects of the parenting capacity of both parents. Both had strengths and weaknesses.
·At 306‑310, Dr B discusses the Mother’s mental health. Clearly, she developed anxiety in the context of the conflict in the marriage and the discovery of the Father’s sexual behaviours. She continues to openly acknowledge her anxiety, and Dr B noted at paragraph 307 that the Mother herself gave an account of being hyper‑aroused, distressed and anxious when the children were spending time with the Father. At paragraph 308, Dr B noted the Mother presented as emotionally fatigued by the Father, angry and disgusted by his behaviour and anxious as to the risk that he poses to the children. However, in Dr B’s view, the Mother had conflated the risks of poor judgment and relational boundaries evident in the Father’s behaviour with sexually deviant behaviour which would cause a specific risk to X. At paragraph 309, Dr B seemed concerned about the escalation in the Mother’s anxiety over the last six months.
·At paragraphs 311‑321, Dr B discusses the Father’s mental health. She was of the view that he did not have an acute mental health disorder, but had personality features which are relevant to his parenting capacity and capacity to productively co‑parent with the Mother. He presented as having low insight into the effect of his behaviours on others. The lack of insight was accompanied by a tendency to attribute blame to others, rather than accepting full responsibility. At paragraph 321, Dr B observed that these features of the Father’s personality would make it difficult for the Mother (or indeed others) to properly raise issues of concern and would have significant impact on his parenting and his capacity to co‑parent. Dr B thought that the Father would find it difficult to accept criticism of his parenting and to modify his parenting to accommodate such criticism.
·At paragraphs 322‑328, Dr B confirmed that there was no material available to her at that time to indicate that the Father posed a risk of sexual harm towards either of the children. Whilst he had deficits with respect to appropriate personal boundaries and interpersonal relationships, these are unlikely to affect the co‑parenting arrangement and may also have a deleterious impact on his parenting. However, there is no indication that he has ever been a risk of sexual harm to the children. Notwithstanding that, the Mother is firmly of the view that he poses a direct and continuing risk.
·At paragraph 325, Dr B describes what she refers to as the “real conundrum for the Court”:
[325] The real conundrum for the Court, in my view, is predicting whether, over time, the mother could reframe her perception of risk. As mentioned previously, I initially held the view that the mother may be persuaded that whilst abhorrent to her, the father’s inappropriate sexual behaviours have never involved any direct risk of sexual offending against children. I no longer think that this is possible and have the view that the mother will continue in her position and conviction that the father continues to pose a direct risk of sexually abusing X. The issue then is that the long-term risks to the children include that the children [or at least X] will continue to be exposed to ongoing investigations, repeated questioning and a degree of hypervigilance about their behaviours which would place them at significant psychological risk.
Discussion
27.Having regard to this expert evidence, what submissions were made on behalf of the parents, and the children?
28.The Father’s case contended, in substance, that Dr B’s Report presented a bleak picture of the Mother’s capacity to support the children’s relationship with their father, based on a subjectively held, but baseless, concerns about the risk that the Father presented to them. Counsel for the Father emphasised that the risk assessment conducted by Dr B was merely one of several risk assessments that have been conducted in this case so far including, for example, two such assessments conducted by JIRT, all of which have consistently indicated that the Father presents no risk of harm to the children. Indeed, it was submitted on the Father’s behalf that on any objective basis, the greatest risk confronted by these children at the moment is a risk of psychological abuse, from their own mother. In these circumstances, the Father’s time should be increased, should be unsupervised and should include overnight time.
29.The Father also sought an order for the release of Dr B’s Report to Dr C, who was going to be providing therapeutic assistance to the Father, consistent with Dr B’s recommendations. This was opposed by the Mother. It was supported by the Independent Children’s Lawyer.
30.The Mother’s case emphasised that Dr B’s Report was as yet untested. Senior Counsel made a point of emphasising that Dr B recorded the assertions of the parties and that the Mother did not resile from the assertions attributed to her. Senior Counsel submitted that the weight that could be placed on Dr B’s Report was limited not just by reference to the fact that her evidence was untested, but also by reference to the fact that the Father’s evidence was untested and thus his denials could not be subjected to critical scrutiny.
31.The Mother’s case cast doubts on the investigations conducted by the Department of Communities and Justice. The lack of child focus in the Father’s case was emphasised – for example, the rapid progression to multiple overnight time. There was criticism of what was purportedly the Father’s proposed final orders, that involved either the children living with him as opposed to their mother, or (as suggested to Dr B) a substantially greater spends time with arrangement.
32.The Mother’s case urged the Court to proceed carefully, cautiously, and not ignoring the Mother’s serious assertions. It was contended that if there was a possibility that the Father had in fact sexually abused X, then this possibility was a legitimate basis for coming to a conclusion at an interim level that there was an unacceptable risk of harm to her. The children were vulnerable because of their young ages, their limited ability to communicate, and their limited ability to protect themselves and each other. The Court was reminded that the fact of X’s disclosures was not in dispute, nor was the evidence about her sexualised behaviours. The Father’s appalling behaviour would cast doubts about his trustworthiness. It was submitted that the Father’s disclosure about his inappropriate behaviour in his employment was not complete before the Court during the Interim Hearing, a matter thus casting further doubt on his reliability.
33.Perhaps the most important point made by Senior Counsel for the Mother was that if the Court accepts Dr B’s risk assessment, but it turns out to be wrong, then there was the risk of irreparable harm to the children. If Dr B is correct, however, the only risk that the children are exposed to is the loss of time with their Father. Ultimately, the Mother’s contention was that the least risk was continuing the existing arrangement for supervised time. The Court could not underestimate the significance of the risk of the Mother’s emotional collapse.
34.The Independent Children’s Lawyer submitted that the reality for X and Y was that they faced a number of risks, from both their mother and father. Dr B had access to all of the relevant evidence, had conducted a thorough detailed risk analysis, and concluded that there was no risk to them of spending unsupervised time with their father. The Independent Children’s Lawyer accepted that Dr B’s evidence was, at this stage, untested. Thus, the case was finely balanced. There was a likelihood that the Mother would be hyper-vigilant and continue to be convinced of a risk that may not exist, but there was a risk to the children as well arising out of her hypervigilance, particularly in a circumstance where there was no evidence of the Mother engaging in any therapeutic assistance to assist her.
35.One of the important points made by the Independent Children’s Lawyer was the absence of any evidence in the Mother’s case, or any submissions made in her case, about the Mother’s understanding and insight about the risk of psychological and emotional abuse that she herself presented to the children. There was no suggestion in her case that she needed, let alone had engaged in any sort of therapeutic assistance in this regard.
36.The Independent Children’s Lawyer put it bluntly, and probably correctly – if the Mother does not get help for herself between now and the Final Hearing, this presents real difficulties for the children, and for the Mother. It was important for her to seek assistance. Indeed, the Independent Children’s Lawyer submitted that if the Court ordered unsupervised time it might force the Mother into a position where she had to obtain the assistance she needs, thus mitigating the risk of final orders, the effect of which would be to excise one of the parents from the lives of the children.
Orders in the best interests of the children
37.The issue of the release of Dr B’s Report to both parents, to facilitate their therapeutic engagement, may be dealt with briefly. Nothing said in the Mother’s case, opposing such release, convinced the Court that it should not do what both the Father and the Independent Children’s Lawyer sought. Senior Counsel for the Mother made much of the potential forensic benefit to the Father of engaging Dr C to provide therapy for him, but was not able to elucidate what, precisely, that forensic benefit would be.
38.Quite frankly, from the Court’s perspective, it is in the best interests of these children that both parents obtain as much therapeutic assistance as they can, from the best possible providers of such therapy, as soon as they can, in order to mitigate the potentially disastrous scenario confronting these children, i.e. that one of their parents will be removed from their lives.
39.With great respect to the Mother, and those advising her, it is hard to make sense of her case. Her case at the first Interim Hearing was that there was no risk of harm of sexual abuse from the Father. By the present Hearing, based on evidence that was neither quantitatively nor qualitatively superior to that presented in the first Hearing, the substance of the Mother’s case was that the children should not have any time with their father unless supervised. The unexplained dichotomy was the Mother’s proposal at the Interim Hearing – continued supervised time – and the Mother’s clear, and unresiled comments to Dr B – that her real opinion was that the children should have no time with their father.
40.What is the Court to make of this inconsistency? If the Mother truly believed that the Father presented such a risk to the children that he should have no contact with them whatsoever, and if that is the position she was going to press at a Final Hearing (for example), then why maintain a position that he should have supervised time? Moreover, the Mother’s case seemed to focus exclusively on the weaknesses in the Father’s case, without addressing any of the weaknesses in her own case, namely the adverse impact on X, in particular, of the Mother’s own behaviour.
41.The harsh reality for these children is that at least 4 risk assessments have been conducted about them in the context of the allegations made about the Father’s inappropriate conduct. The JIRT team have made 2. Now this Court has made 2. Dr B conducted what was, in effect, a comprehensive risk assessment. Each of these risk assessments finds that there is no unacceptable risk of abuse of the children spending unsupervised time with their father. There are real concerns in the Court’s mind, as indeed identified by Dr B, that the Mother is not prepared to accept any risk assessment except her own.
42.Doing the best the Court can, having regard to all the circumstances of this case, the Mother’s subjective beliefs about the risk of harm presented to the children by the Father have no known objective basis. The real issue in this case, pending a Final Hearing, is how the Mother can cope with and adjust to an environment in which X and Y will be regularly spending time with their father on an unsupervised basis. The onus is on her to obtain therapeutic assistance. The rationale for giving the Mother 8 weeks before the time is extended is to enable her to obtain such therapeutic assistance. The Court notes that at paragraph 310 of Dr B’s Report she opined that the Mother did not suffer from any underlying psychological issues of significance. This hopefully bodes well for her engagement in therapy.
43.The Mother is represented by highly experienced family lawyers and a leading family law Senior Counsel. It is inconceivable to the Court that the Mother has not been warned of the possible implications for her, and Y and X, of not moderating and regulating her emotional response to the circumstances that have led up to the present application. The Mother is urged to obtain therapeutic assistance so that she might obtain a greater insight into the predicament that she herself faces, and is placing her children in.
44.The Court declines, however, to make the further orders for time proposed by the Father. It is too much too quickly for these children, and that is certainly the case so far as the Mother is concerned. Quite frankly, the Father has his own problems that he needs to deal with before the Final Hearing and before the Court as presently constituted would consider overnight time.
I certify that the preceding forty four (44) paragraphs are a true copy of the Reasons for Judgment of Judge Altobelli
Associate:
Date: 17 July 2020
Schedule One
Orders sought by the Applicant Father
Proposed Minute of Order by the Applicant Father
1.The parties have equal shared parental responsibility for X born in 2013 and Y born in 2017 ("the children") including the children’s current and future education, their religious and cultural upbringing, health issues, their names and any changes to the prospective living arrangements of the children that make it significantly more difficult for them to spend time with either parent, and the parties shall consult with each other, either verbally or in writing, on these issues and shall make a genuine effort to come to a joint decision about them.
2.The children live with the mother who shall have the sole parental responsibility for making the non-major decisions about the day to day care, welfare and development of the said children.
3.The children live with the father who shall have the sole parental responsibility for making the non-major decisions about the day to day care, welfare and development of the said children as follows:
3.1For a period of four (4) weeks from the date of these orders:
a)Each week from 3pm to 6pm Thursday, with the father to collect the children from daycare at the commencement of such time and the mother to collect the children from the father's residence at the conclusion of such time; and
b)Each week from 9am Saturday to 9am Sunday, with the father to collect the children from the mother's residence at the commencement of such time and the mother to collect the children from the father's residence at the conclusion of such time.
3.2After the conclusion of the period above, as follows pending further Order:
3.2.1 Week One:
(a) From 3pm Thursday to the commencement of school/daycare Friday, with the father to collect the children from school/daycare at the commencement of such time and return the children to school/daycare at the conclusion of such time; and
(b) From 9am Saturday to 4pm Sunday, with the father to collect the children from the mother's residence at the commencement of such time and the mother to collect the children from the father's residence at the conclusion of such time;
3.2.2 Week Two:
(a) From 3pm on Thursday to the commencement of school/daycare Friday, with the father to collect the children from school/daycare at the commencement of such time and return the children to school/daycare at the conclusion of such time; and
3.3In 2020, from 3pm Christmas Day until 5pm Boxing Day;
3.4In 2020, from 3pm 31 December until 3pm 1 January;
3.5In 2021, from 5pm Holy Thursday to 5pm Easter Saturday;
3.6At other times as may be agreed between the parties from time to time.
4.For the purposes of Orders 3, on a without admissions basis, the Father shall not view any pornographic material of any sort, on any device, including but not limited to, his mobile phone and computer, whilst the children are in his care.
5.The children shall communicate with the respective parent who they are not in the care of, each day at 5.30pm unless otherwise agreed to between the parties, and each party shall do all such things required to facilitate such communication between the children and the other party.
6.Within 14 days both the mother and father enrol in the Keeping Kids in Mind program and upon completion of the course shall provide the certificate of completion to the other party.
7.The parties shall communicate via text message for the purposes of discussing the children, unless in the event of an emergency, where the parties shall telephone.
8.The parties each:
a) keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and notify each other within 7 days of any change;
b) advise the other immediately in the event that either child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practise attended; and
c) authorise any medical practitioner, hospital or medical practise at which either child may attend from time to time, to communicate with the other party in respect to that child’s medical condition and/or requirements.
9.Each party be entitled to attend all day care, school and extra-curricular activities involving the children, including:
9.1sporting fixtures;
9.2extra-curricular activities that allow for parental attendance;
9.3pre-school and school functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.
Orders sought by the Respondent Mother
1.That Orders 3, 4 and 8 of the Orders made 11 December 2018 be suspended.
2.That the children namely X born in 2013 and Y born in 2017 spend time with the father supervised by E Contact Service, or such other professional supervised children's contact service agreed between the parties in writing, until such time as the supervised contact centre pursuant to Order 4 herein becomes available, as follows:
a)Commencing 19 October 2019 and thereafter on alternate Saturdays from 2pm until 5pm with the parents to be equally responsible for the costs associated with the same including the preparation of reports.
b)Should the father be willing to be solely responsible for the costs associated with the same including the preparation of reports, commencing 26 October 2019 and thereafter on alternate Saturdays from 9.00am until 5.00pm provided the father gives the mother 48 hours' notice of such intention.
c)On the following special occasions with the parents to equally share in the costs associated with the same including the preparation of reports:
i.Christmas Day 3.00pm until 6.00pm;
ii.Good Friday from 3.00pm until 6.00pm.
d)On the following special occasions should the father be willing to be solely responsible for the costs associated with the same including the preparation of reports:
i.On New Years' Day from 3.00pm until 6.00pm.
ii.On Easter Sunday from 3.00pm until 6.00pm.
e)At any other times as agreed between the parents in writing.
3.That changeover occur in accordance with the requirements and/or recommendations of the contact service provider SAVE AND EXCEPT FOR that the father's time with the children shall not be exercised at G Street, Suburb H, NSW.
4.The children spend supervised time with the father at J Contact Services, Suburb K on days and at times nominated by the service.
5.Each party must:
a)Contact J Contact Services, Suburb K ("the Contact Centre") within seven (7) days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the father;
b)Attend the assessment;
c)Comply with any appointments made by the Contact Centre for supervised time;
d)Comply with all reasonable rules of the Contact Centre; and
e)Comply with all reasonable requests of directions of the staff of the Contact Centre including to participate in a program or programs;
f)If after assessment the parties are accepted by the Contact Centre are suitable for supervised time, the Children are to spend time with the Father at such times as nominated by the Contact Centre and such contact is to occur at the Contact Centre.
6.Both parties share equally any fees charged by the Contact Centre.
7.That copies of all supervised contact reports be released to each parent, their respective legal representatives and the Independent Children's Lawyer.
8.That Order 12 of the Orders made 11 December 2018 be suspended insofar as it relates to the father.
9.That the father be restrained by injunction from:
a)attending the children's day care or school SAVE AND EXCEPT FOR parentteacher interviews;
b)taking the children or either of them to the bathroom and/or toilet.
Orders sought by the Independent Children’s Lawyer
CORSON & CORSON
WOC 886/2018
Minute of Interim Order sought by the Independent Children’s Lawyer
Pending further Order:
1.That this matter be transferred to the Magellan List of Family Court of Australia.
2.That the Orders made by consent on 15 October 2019 be discharged.
3.That Order 8 made 11 December 2018 be suspended pending further Order.
4.That the children communicate with the father via telephone or FaceTime on no more than two occasions per week at 5:30pm, and in lieu of agreement, each Monday and Wednesday at 5:30pm and the mother shall do all such things required to facilitate such communication between the children and the father.
5.That, [*for a period of 4 months after the making of these Orders,] the children spend time with the father in accordance with the Orders made 11.12.2018.
[* ICL’S PROPOSAL FOR OVERNIGHT TIME – TO BE CONFIRMED after hearing the parties’ respective submissions]
6.*That after a period of 4 months from the making of these Orders, pending further Order the children spend time with the father:
(a)From 3pm or the conclusion of school or day care each alternate Thursday until the commencement of school/day care Friday; and
(b)From 9am Saturday until 2pm Sunday, each alternate weekend, not being the weekend immediately following the time pursuant to Order 6(a).
7.That leave is granted to each parent to provide a copy of the Single Expert Report dated 21 April 2020 by Dr B to any therapist providing therapeutic assistance to them to address the issues raised in that Report, including but not limited to Dr C for the father’s therapeutic intervention.
8.That each parent shall notify the Independent Children’s Lawyer of the name and contacts details of person upon whom they attend for therapeutic support.
9.That the mother be restrained by injunction from allowing the children to live with, or bringing the children into any contact or communicating with, the maternal uncle Mr D, and from permitting other person to do so.
Schedule Two
Paragraphs 219 – 328 of Dr B’s Report dated 20 April 2020
Evaluation and terms of reference
[219] In order to assist the parents and the Court determine the appropriate parenting arrangements for X and Y, I have considered my interviews and observations with the parents and children, together with my reading of the material including the material produced under subpoena.
[220]In my opinion the parents and Court will need to carefully consider the following matters in order to properly address the children’s needs:
• The ages and developmental needs of the children;
• The capacity of the parents to co-parent the children;
• The issue of risk of harm to the children; and,
• The degree to which the children have become involved in the dispute between the parents.
[221]X and Y are very young children and depend heavily on their parents and adult caregivers to meet their basic needs. Due to their young ages, they also rely on their parents communicating properly to ensure their safety, development and well-being. They have very limited capacity to tolerate poor communication between the parents and any lapses in the parent-to-parent communication may cause them harm.
[222]During the interviews and observations I conducted, it became apparent that the mother holds very strong views that the children should have no contact whatsoever with the father and the paternal family [including any supervised contact]. She expressed the view that the father has sexually abused X, has groomed her for the purposes of future sexual abuse and will continue to pose a risk to X. She presented as firmly of the view that the any unsupervised time with the father would place the children at risk.
[223]Between my initial interviews and observations and my second interviews, there was an intense escalation of allegations regarding the father and risk of sexual harm to X. The mother said her conviction that X had been sexually abused was firming around the time that I initially interviewed her. On her second interview with me [in April 2020] she said that after her initial interview with me, she reflected on various things that X had said and done and firmly developed the belief that X had definitely been sexually abused by her father. By the time of the second interviews, the mother’s position had crystallised to the extent that she thought the children should have no contact with their father. She opined that if the court ordered unsupervised contact between the father and the children that she would “not send them”.
[224]A central area of concern in this matter is the degree to which the father may or may not have behaved improperly and whether his behaviour has had any direct impact on his parenting. As mentioned previously, the mother has the firm conviction that the father has perpetrated sexual harm towards X, that he is grooming her for the process of further sexual exploitation and that he represents an unacceptable level of risk for this reason.
[225]In my view the father has most certainly behaved inappropriately with respect to his sexual behaviours, his interpersonal relationships with adult female work colleagues and may have some personality features which are indicative of poor interpersonal boundaries. I have no doubt that the mother has been humiliated and feels disgusted about the father's sexual behaviours, including his "sexting” and his sending explicit video footage of himself masturbating to work colleagues.
[226]I have very carefully considered the risk to the children of harm, and specifically harm related to the father's sexual activities. In this task I have taken into account all of the material, including X’s alleged utterances and behaviours including to her psychologist, school teachers, GP, the forensic interviews conducted by JIRT, the reports of her mother and grandmother and my own interviews and observation. I have also reviewed all of the material in relation to the father’s reported behaviours, the investigation and disciplinary proceedings in relation to these and the nature of the material that the father was involved with, together with my own forensic interviews with the father and mother. I approached this task fastidiously, with an open mind as to the possibility that X may have been sexually abused by her father.
[227]In my opinion, there is no indication that the father has posed any direct risk of sexual harm to either of the children, including X. Whilst I have numerous concerns about the father's personality and interpersonal functioning, I do not think he has any specific risk factors with respect to sexual abuse of children. There is no indication that the father has ever posed a direct risk of sexual abuse of any children, including his own children. I think that X’s behaviour and statements may have multiple causes including: acting out/ behavioural regression as a result of stress or maladjustment to her parents’ separation; learned behaviours in response to behavioural and/or emotional reinforcement; exposure to sexualised material such as pornography; a response to multiple investigations and formal and informal interviews in relation to topics of sexual abuse, genitalia and her father generally or as a result of explicit or direct misinformation, or any combination of these factors.
[228]I have formed the view that understandably the mother has a complete lack of trust with respect to the father particularly given that she discovered the depth and extent of his sexual behaviours after the separation. In my mind, the mother’s views of the father have become so contaminated by her emotional repulsion at his actions, that his sexual behaviours have, in her mind, escalated risk to a degree that is not reality based.
[229]I am conscious of the escalation and development of the mother’s views and the ongoing utterances and behaviours of X. The mother initially reported that X had disclosed sexual abuse by her female cousin, who was at that time 12 years of age. The mother alleged that X had reported that her cousin had digitally penetrated her vagina. The mother took X to the GP who referred her to Suburb L Hospital where she was examined, including having a vaginal swab taken in relation to potential urinary tract infection. X was interviewed by specialist detectives from JIRT in January 2019 but made no disclosures of abuse and JIRT closed their investigation.
[230]I have reviewed this interview with X. X reported that she had a “sore wee wee” and that her mother had told her that she does not wash it properly. She made no disclosures and eventually asked a series of leading questions, including whether anybody had touched her on her “private part” and she responded “no” and that “only mummy washes it”. She was then asked leading questions in relation to her cousin and no disclosure of any abuse was made by X.
[231]I have also carefully reviewed the notes of X’s psychologist where the issue of potential sexual abuse was raised on several occasions. The psychologist’s notes indicate that X was subjected to often detailed, leading and suggestive forensic questioning but that she did not disclose any sexual abuse of any kind.
[232]The mother remained concerned regarding X and her behaviour. The mother deposed that in March 2019 X made further disclosures regarding her cousin digitally penetrating her vagina. The mother said that in May 2019 X disclosed “Daddy touched me on the wee wee”. The mother said that although she was concerned about this that she did not make a report because her solicitor cautioned her against it. The mother deposed that on 17 June 2019 X reported that X told her that when her father touched her “wee wee” that it hurt. The mother did not make a report at that time.
[233]The mother said that after her interviews with me on the 19 August 2019 she reflected that collectively these previous disclosures and behaviours were indicators that X had been abused. At her initial interview with me, the mother reported that she was sure that X had been sexually abused by her father. That night, the mother reported her concerns to FACS. As a result, X was interviewed by JIRT on 30 August 2019 for the second time. She had been interviewed by me 11 days prior to that. I have viewed the recording of this interview in its entirety. Before the detectives had introduced the interview process and established that X understood the difference between truth and lies, she had told the detectives that her father had touched her “wee wee”. She presented as rehearsed and scripted. Her timeline and details were inconsistent and at times, improbable. The mother and maternal grandmother deposed that on the evening of these interviews that X displayed sexualised behaviour and, on questioning, said that her father puts his penis on her vagina. The mother and maternal grandmother reported these concerns to FACS. However, FACS and JIRT closed their investigations and concluded that sexual abuse was not substantiated. The mother told me that she was instructed that further interviewing of X would be psychologically harmful.
[234]During this time, the mother was keeping what she described as a “Family Court Diary” where she recorded observations about the children and X’s behaviour.
[235]The mother reported to me that in February and March 2020 that X has disclosed to school staff that she had been injured whilst with her father. The mother reported that she was certain that X is about to make a new disclosure about further abuse.
[236]The mother has also become extremely critical of the father in almost every aspect of his capacity to care for the children. It appears that she did not hold these concerns during the marriage. For example, on initial interview with me the mother was highly critical of minor matters, for example criticising the father for using packaged pasta sauces when feeding the children. The mother also appeared to be imagining the children's experiences in the father's care, for example describing that she could imagine that Y would likely be screaming whilst X was having hobby lessons. The mother made other spurious criticisms of the father, including that the father gets changed out of his work clothes on Thursday afternoons when he is spending time with the children. She seemed to indicate that was an indicator of some sort of deviant behaviour or motive.
[237]She was critical of the father for purchasing perfume for X, suggesting that it was “creepy”, despite the fact that the perfume in question was marketed to and designed for children [i.e., based on a Disney character]. She was also critical of the father for what she believed was him telling the paternal grandparents where X's classroom was, and again, ascribed malicious intent to this alleged action. The mother was also very critical of the paternal grandparents, apparently sending them a text message to the effect that they should not be in attendance at X's athletics carnival for example.
[238]I also think that the mother's concerns have become so escalated, that they have become apparent to X in particular. It appears that X has been subjected to inappropriate questioning and interactions with her mother and possibly her maternal grandmother as a result of the mother’s hypervigilance and concern.
[239]Having said all of that, I do not think that the mother has developed these concerns in a vacuum, because the father has almost certainly behaved in inappropriate ways in other contexts which have caused him to be professionally investigated and disciplined. The father has displayed enormous lack of judgement, defensiveness and lack of insight into some of his behaviours in the workplace context. Similarly, I think that when the mother has attempted to communicate other, more legitimate concerns [such as the father driving with X without her wearing a seatbelt and seated on his lap], that she has received dismissive or minimising responses from the father. Perhaps because of these features of the father’s personality and the relationship history, it appears that the mother has now become so distrustful of the father that she wishes the children to have no contact with him or with his family.
[240]Although I think the mother is intelligent and well-reasoned, she appears to have poor insight into the long-term effects of such a proposal on the children. The degree to which this current position of the mother is entrenched or is amenable to change is, in my view, a significant issue. When I initially interviewed the parents, I was concerned that the mother would continue in her trajectory of assuming malicious behaviour on behalf of the father, but I remained hopeful that the mother may be able to realistically assess risk and reappraise her position over time. However, I am no longer of the view that the mother has this capacity. There may be many reasons for this, including: possible support and validation from her own family; her development of an anxiety disorder; her coping with the public humiliation about the father’s sexualised and inappropriate behaviours in the public domain and the concomitant deception in the marriage; or it may be a combination of many of these factors.
[241]I have formed the view that the mother has interpreted almost every action and behaviour of the father as predatory, dangerous and “proof” of her views that the father is grooming X for the purposes of sexual abuse. I think that she finds it impossible to entertain the possibility that the father’s parenting actions are benign and ordinary. I think that she has become so entrenched in this pattern of thinking and interpreting that it is impossible for her to resile from this position, despite the outcomes of independent investigations. Indeed, I think that the mother will reject any conclusion that does not endorse her view, including this report or any conclusion of the court. Whether the children are likely or able to have a meaningful relationship with each of their parents;
Whether the children are likely or able to have a meaningful relationship with each of their parents;
[242]Unfortunately, I think that the current situation poses many risks to the children. Regrettably, the parents have been unable to shield the children from the conflict between them and both parents report conflict at changeovers. There is poor communication between the parents about even basic aspects of the children’s care, such as communicating about injuries which the children may have received.
[243]The father asserts that the mother does not communicate with him regarding important matters, such as X’s treatment at a psychologist, education and medical matters. The mother asserts that she cannot properly communicate with the father because he is dismissive of her concerns and is hostile and aggressive in communication with her.
[244]I am very concerned about the lack of trust between the parents and specifically the mother’s ongoing and deepening lack of trust towards the father. The current position is that the mother regards the father as a sexual predator and is scrutinising X's behaviour and statements for evidence of any sexual harm. In my mind this has entirely contaminated and driven many of the mother’s parenting behaviours and places X at risk of ongoing future investigations and misinterpretation of benign aspects of her behaviour. For example, my review of the notes of X's treating psychologist, Ms M indicate that the mother pressed the psychologist for indicators that X has subjected to sexual harm by the father. The psychologist reassured the mother that X had not displayed any behaviours which indicative of sexual abuse.
[245]FACS contacted Ms M as part of their investigation into the allegations of sexual abuse of X. These records indicate that Ms Corson reported X's alleged disclosure that her father had touched her "wee wee” to the psychologist and that the mother had encouraged X to "tell someone apart from me". The notes indicate that X spoke to Ms M about her father touching her for “a microsecond” [the psychologist’s term] after she had finished going to the toilet and that when the psychologist informed the mother of this that the mother was pleased that X had spoken about it and that the mother had "encouraged her to and told her she needs to tell people". The notes indicate that the mother engaged in a lot of negative talk about the father in front of X, that X wanted to please her mother and changed her responses when she thought she was giving a “wrong” answer. Ms M opined that X was a “stressed child” who felt torn because she loved her father but was told not to love her father. The psychologist reported that X appeared rehearsed and scripted in her sessions as she came to the sessions and “blurts out a story about her father and then says, can I go home now?” The psychologist also reported that X appeared to be particularly vigilant towards her mother, for example constantly wanting to go to the waiting room [where her mother was] to show her various things. Ms M reported that the mother presented as very angry towards the father.
[246]On the second interview with me, Ms Corson said that Ms M appeared indifferent to the JIRT investigation, had not properly made a report of sexual abuse and that she had terminated X’s treatment with her in December 2019. In my view this is a very telling parenting decision because, at the same time, the mother presented as desperately wanting X to receive psychological support and assistance. The reality is that X had been receiving appropriate psychological support for more than 14 months with Ms M.
[247]It appears that the mother has objected to Ms M maintaining a neutral stance and that the mother is only invested in X receiving treatment that accords with her view of X as a child who has experienced sexual abuse. The notes and records indicate that the mother appeared to be using the therapy as a vehicle to encourage X to make further disclosures, rather than providing X with coping mechanism to deal with the loss of her family as she knew it and the multiple changes and losses in her life.
[248]The mother’s interview with me and affidavits indicate to me that she has subjected X to ongoing and repeated questioning with respect to the risk of sexual abuse. The mother indicated to me that she is worried about the father sexually abusing X on an ongoing basis, and that the father is continuing to do so. The mother has also expressed concern to her GP, Suburb L Hospital and JIRT that X was sexually assaulted by her 12-year-old female cousin.
[249]Since the time of my first interviews, the mother continued to question X and to report various matters regarding alleged disclosures and behaviours. The reports from E Contact Service suggest that X has been primed and prompted that she needs to tell the supervisors concerning things regarding her father. I was very concerned that the mother reported that X had recently reported allegations to her teachers, referring to an incident in the swimming pool as well as an allegation that she fell off a cliff and hit her head. The allegation regarding the swimming pool seems to be a rehashing of a previous allegation between the parents, and a previous report of such by X. I am strongly of the view that X has become so distressed and confused and considers it her duty to continue to “report” various matters to adults in her life. This suggests to me that even at school or in environments where she should be free of worry or concern regarding her parents and their conflict, that she feels duty bound to display loyalty to her mother. In my view, this reflects the degree to which she is burdened and reflects poor psychological adjustment and an enmeshed and unhealthy relationship with her mother.
[250]If the mother’s concerns continue, my view is that X will continue to be exposed to parenting behaviours which will ultimately contaminate her view of her father and sensitise her to elevated concerns about sexual contact which will adversely affect her. I was particularly concerned, for example, to read the accounts provided by the mother and the maternal grandmother as to how they dealt with X’s alleged disclosure of sexual abuse by her cousin. Both the mother and maternal grandmother depose that they participated in a “role play” with X at the time of the alleged disclosure, which involved them telling X that her cousin N was a “rude naughty girl” who could not be trusted and who would never see X again and that they would report her actions to the police. The mother and grandmother did not appear to understand the psychological effect of such actions on a child and did not seek or receive any professional assistance instructing them to engage with X in this manner.
[251]Regrettably, such actions would have inadvertently reinforced and manipulated X’s memory and perception of any events which occurred. These actions may also have caused X to have a preoccupation with genitals, sexual behaviour and misreporting various events. My view is that so long as the mother continues to hold the belief that the father is a sexual abuser of children that X [and potentially Y] will continue to be exposed to similar parenting behaviours which will likely cause them to have distorted or spurious ideas about ordinary or benign events which have occurred in the father’s [and paternal family’s] care.
[252]At the same time, the mother presents as utterly opposed to any efforts to communicate with the father and to collaborate with him to co-parent. She said to me “as far as I am concerned he doesn’t exist”. The father deposed that on 15 February 2019 that the mother wrote him a text message indicating that he was not to contact her at work, in relation to an email he had sent her regarding school fees. The text message said [according to the father] “I do not want sexual offenders who are under investigation harassing me in my work environment”.
[253]At interviews with me, the mother was unable to cite anything positive that the father brought to the children’s lives and also regarded his family as dangerous and ill-suited to have contact with the children.
[254]The father presented as far less critical of the mother. He praised the mother’s parenting and said he did not have any specific concerns with the mother's capacity to care for the children. The father did express some concerns with respect to the degree to which the mother has potentially involved X in the proceedings. The father was also very critical of the mother for reporting his “sexting” behaviours to his employer.
[255]However, I do have concerns about the father's capacity to accept responsibility for many of his behaviours, to accept negative feedback or properly address concerns that the mother has raised in the past with respect to the children. I will discuss aspects of the father's personality and parenting capacity elsewhere; however I think that these are real hurdles in the children being able to have a meaningful relationship with both of their parents in the current circumstances.
[256]In aggregate, I think that these things have meant that the children will suffer and will have enormous difficulties in maintaining meaningful relationships with both their mother and their father.
[257]In my mind the real obstacle is the mother's position that the father represents direct risk of sexual harm to X. If the mother does not resile from this position, then it is untenable for the children to continue to have a meaningful relationship with both parents as they will continue to be caught in the conflict between their parents, be subject to inappropriate forensic and other investigations which will certainly have significant and adverse psychological effects on them.
[258]I am also concerned about the nature of the co-parenting relationship and the very young ages of the children. Y is young toddler and has very limited language and communication skills. Similarly, X is a 6-year-old child and cannot properly communicate her needs or her experiences in a straightforward manner. The children both depend on clear, timely and proper communication between adult caregivers to look after both their safety and their psychological well- being in the short and long-term.
[259]The children are also highly sensitised to the tone and nature of the interactions between the adults. There are many instances where I think the children have probably been exposed to a high degree of tension at changeover or at other events. For example, the report of X's athletics carnival indicated a high level of conflict for X where both sides of her maternal and paternal family were present. These experiences would be confusing and distressing for the children who prior to their parents’ separation appeared to enjoy positive, loving and close relationships with both maternal and paternal sides of their family.
The benefit to the children of having a relationship with each of their parents
[260]Aside from the lack of trust between the parents and the poor co-parenting relationship, each of the parents have very positive qualities that they bring to their parenting roles. The children’s experiences [before the parents separated] was having very positive and open relationships with both parents and deriving comfort and support from those relationships and the different things each of their parents offered them.
[261]I observed that Mr Corson was an active, engaged, loving and supportive adult for both X and Y. Both children appear to love their father, gravitate towards him and seek his attention, comfort and interaction. I observed that Mr Corson had very good skills with the children, providing them with an appropriate mix of attention, guidance and structure. I saw no evidence that either child had been favoured or neglected as asserted by the mother. The father was able to be tender and nurturing to both children, including soothing Y when he was tired and distressed, changing his nappy and attending to the children's eating, providing them with nutritious foods. The children also appeared to speak positively about the times that they have enjoyed with their father and extended paternal family members. The reports of supervised contact between the father and the children also indicate that the children are loved and well cared for by their father and that he responds to them in an appropriate manner.
[262]At the same time, I think the mother has very good parenting skills and the manner of interacting with both children which is sensitive, loving, and child focused. The mother was also able to provide both X and Y with comfort, structure and guidance. I thought that she also had a very positive manner of interacting with the children which was sensitive to their needs and encouraging of their well-being and development. The mother appears to have very good skills with respect to organisation and household management which have enhanced the children's capacity to cope after their parents’ separation.
Whether the children are at risk of being exposed to any physical or psychological harm from being subject to or exposed to abuse, neglect, or family violence;
[263]There is no indication that the children have been exposed to abuse or neglect.
[264]There is some indication that the children have been exposed to family violence in the sense that both parents have reported difficulties at changeover, including verbal altercations between them. X reported to me that her parents were "not friends", and that they hurt one another's feelings. She reported that her mother had told her that "daddy is not being nice to her" [the mother], after she had told her mother that she wanted to go to her father's home. X also reported that "Nan doesn't like dad". I think the attitudes of the adults have been entirely transparent to X and probably to Y, although he would not have an explicit memory and knowledge of this, given his age.
[265]There are reports from the mother of both children displaying regressive behaviours at times. For example, the mother reported that Y had sleep disturbance and that she needed to get specialist assistance in relation to this. The notes from the GP indicate that Ms Corson took Y to the GP on 4 May 2019 for an assessment of “behavioural issues”. The reported issues included decreased speech, excessive screaming, unable to fall asleep except in a pram and “unhappy after access to father”.
[266]Other information in the material indicates that X was cautioned for swearing at another student at school in May 2019. When questioned, X told the teacher that her “dad called her a “f***ing d***head” on the weekend when she was playing on the trampoline with her brother”. At X's "Best Start" interview at the commencement of kindergarten, the mother reported her concern about the father picking X up on Thursdays and how this was adversely affecting X's behaviour.
[267]Although it is notoriously difficult to understand the direct cause of children's behaviour and/or behavioural regression, children exposed to interparental conflict including verbal violence, hostile body language or direct conflict often exhibit behavioural difficulties, including escalating aggressive and sometimes sexualised behaviours. I think it is highly likely that the children's behaviours, if these reports are accurate, may be caused by their exposure to interparental conflict, the loss and change that they have had to cope with to date, and their confusion and concern regarding the family situation. The children are also likely to have clearly intuited the mother’s stress and anxiety in relation to her concerns about the father and I think that this is had a direct and deleterious impact on them.
[268]With respect to the concerns expressed regarding sexual abuse, there is no indication that either of the children have been subjected to sexual abuse. I have discussed this issue above.
Any view expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to these views;
[269]The children are too young to express a view.
The nature of the relationship between the children and with each of their parents and any other relevant person;
[270]I observed that both children had very warm, loving and reciprocal relationships with both of their parents. I observed that both children interacted in a loving, open and affectionate manner with their father. As mentioned previously, they sought his attention and affection and the father was sensitive and attuned to the children's needs.
[271]Similarly, I think that the children have a very close, loving and primary attachment relationship with their mother. The children appear to feel safe and secure in the care of their mother and I have no concerns about her capacity to respond to the children in a sensitive and appropriate manner.
[272]That said, I think that there is some indication that X has been particularly drawn into her parents’ conflict. Her comments to me indicated that she has either intuited or directly been told that her parents are in conflict and that her father has not been nice to her mother. X also appears to be somewhat enmeshed with her mother, seeks to please her mother and has responded in ways which are reinforced by her mother. I think it would be very difficult for X at 6 years of age, to appear to be disloyal to her mother or to contradict her mother’s views.
[273]The children also appear to have a significant and important attachment relationship with the maternal grandmother who has played an important role in caring for the children on a very regular basis, particularly since separation. I observed that Y had a particularly strong connection with his maternal grandmother.
The extent to which each of the children’s parents have taken the opportunity or failed to take the opportunity to:
a. Participate in making the decisions about major long term issues in relation to the children;
b. Spend time with the children;
c. Communicated with the children; and
d. Where relevant, the effect of the conduct of each of the children’s parents on the children;
[274]Although there is some dispute regarding the history of care of the children, it appears that both parents were highly involved in the care of the children during the marriage. The children's relationships with their parents, as observed by me, suggests that the children have significant attachment relationships with both their mother and their father which are highly suggestive of significant parental involvement with the children during the marriage.
[275]The reports from the children's school and preschool indicate that both parents have appropriately communicated with other professionals with respect to the children and have shown active interest in the children's education, social and emotional development and well-being.
[276]However, since separation, the father deposes that there have been periods of time where the mother has withheld the children's contact from him. The mother deposes that she did withhold the children's contact from the father at times when she considered their safety to be at risk, and at times when the father's behaviour was otherwise under investigation. The father deposes that there have been ongoing issues with respect to the communication between him and the children. The mother deposes that is been difficult to get X to communicate with the father by telephone, given her age and often her reluctance to want to speak to the father. The mother further alleges that the father has been emotionally manipulative on the telephone and has also been angry and aggressive towards X.
[277]More recently the children have not been seeing their father due to concerns regarding the Covid-19 health situation. The mother expressed the view that the she and the children need to maintain social isolation due to risks of infecting her vulnerable mother. She asserts that she has facilitated Facetime between the children and the father. The father said that the Facetime contact occurs for only a few minutes duration and is not properly set up by the mother. He acknowledged that the children are likely to have very short attention spans, but that with appropriate guidance and encouragement that they could be assisted in having more meaningful FaceTime communication.
[278]I have no real way of knowing the source of the difficulties in communicating, aside from my general knowledge that children of two and six years of age respectively are highly variable in terms of their attention, distractibility and capacity to engage in telephone/ FaceTime conversations with an absent person, even a beloved parent. At the same time, I think that such communication would be very difficult for X, particularly if she has intuited or is aware of her mother's attitude towards her father.
The extent to which the children’s parents have fulfilled or failed to fulfil their duty to maintain the children;
[279]There was no information available to me suggesting that the parents have not properly maintained the children. The children present as very well cared for.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other person with whom the children have been living;
[280]There are significant risks to the children if they have no contact with the father, as the mother proposes.
[281]In the short term I think that both children will be distressed if they had a complete removal of the father from their lives. Despite the conflict to which I think they have been exposed, it was clear to me that both Y and X love their father, have benefited from their interactions with him and sought his affection and attention. The children have come to have an expectation of their father's consistent and regular involvement in their lives. I think that the children would miss their father enormously if they did not see him.
[282]Further, I think that X may wonder why she is no longer seeing her father and may either come to believe that her father has abandoned her or otherwise believe that she is somehow at fault in having no further contact with her father whom she loves.
[283]I cannot properly determine how Y may react or respond having no contact with his father, given his young age and concomitant language and memory abilities. If Y has no contact with his father, he will not retain any memories of his early experiences with his father and paternal family. It is hard to predict how Y may be affected by this absence in the course of his life. In general, the absence of a parent, and a father specifically, poses a number of risks for children including escalated risk of behavioural, social and educational problems together with a greater risk of psychological issues. These effects are mediated, in part, by the child’s own resilience and personality and the nature of the child’s relationship with their other parent and/ or any step-parents or other adult caregivers. Given the young ages of the children, it is virtually impossible for me to accurately predict these possible long-term outcomes. However, as the children approach adolescence, they may either develop a rather fantasised ideal of their absent father and/or may blame their mother for the lack of contact with their father, particularly if this is coupled with a lack of contact with the paternal family in general. Although Y will not have an explicit memory of his father by that time, there is considerable research that children have an irrepressible desire to discover their biological origins and that this forms an important part of their identity formation.
[284]I am concerned that in the long term the children may suffer deficits to their psychological sense of security and that they may be at risk of feelings of abandonment and/or distress if they have no contact with the father.
[285]The father now proposes that on a final basis the children live with him and eventually spend time with their mother. In my view, this scenario also poses various risks to the children. Both children have become very dependent on their mother and probably their maternal grandmother, particularly since they have been living with her. Since March 2020 the children, mother and maternal grandmother have not had any social contact outside of this household unit. Prior to that, the children were only seeing their father on a limited and supervised basis. As such, the father’s proposal would represent a major upheaval in the children’s day to day lives and pattern of care. At their ages, such a change would likely result in real distress, behavioural and emotional regression and elevated anxiety in both children.
[286]I cannot accurately predict how the children might behave and respond to the loss of their mother in their day to day lives, but would expect significant disruption to their sense of security and stability resulting in a variety of behaviours. Both children would miss their mother enormously and pine the loss of her in their day to day lives. It may be the case that the children settle quickly into a new pattern of care with limited or minimal disruption to their long-term psychological adjustment, or it may be the case that these changes cause long term disruptions to the children’s capacity to regulate their emotions and place them at long term risk of psychological harm.
[287]I think that the children have a good relationship with their father, but I do not think that Y has the requisite history of recent attachment with his father for such a dramatic change to be without significant disruption to his capacity to self- regulate. In other words, I think it would likely have an adverse and ongoing negative effect on him, given his primary pattern of care for the last few years has been almost exclusively with his mother. At 2 years of age, he has not yet properly developed the capacity to manage such a separation without undermining his sense of predictability and safety; important perquisites for proper long term emotional regulation.
[288]I think that the effect of such a proposal on X may include that she feels guilty and worried that she may be the cause of such an outcome. I think that X would experience anxiety and concern about her mother and perceive that she had failed to respond properly to the situation demanded of her.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will such affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
[289]The parents reside in close proximity to one another and to the children’s school and preschool. There is no particular practical difficulty or expense which would impede the children's right to maintain their relationships with each of their parents on a regular basis.
The capacity of each of the children’s parents and other person to provide for the needs of the children including emotional and intellectual needs;
[290]Overall, I think that the mother has a very good capacity to provide for the needs of the children, including their social, emotional and intellectual needs. As mentioned previously, I think the mother has exemplary parenting skills and has executed loving care of the children with appropriate boundary setting. The mother appears to understand many aspects of the children's emotional needs, such as ensuring they have a consistent and regular routine, that they have opportunities for social and recreational activities and that they have appropriate medical and educational interventions.
[291]Having said that, I think the mother has a relative blind spot in her parenting insofar as she appears to be unaware of the degree to which X has been influenced by her, particularly in relation to her attitude towards the father. X spoke directly to me about hearing her mother say negative things about her father when she was expressing a positive view about her father. It may be that X has misunderstood what her mother was saying, but I think that X is highly vigilant towards her mother's reactions and responses and that this is having an influence on X's anxiety.
[292]With respect to the father, I have rather mixed views. On the one hand, I think Mr Corson has a very good capacity to attend to the children and to optimise their social, emotional and intellectual needs. The father appears to be sensitive and child-focused in his interactions with the children. On the other hand, I think the father may have exposed the children to risk, in terms of the children potentially having access to pornography on his telephone/ electronic devices and in having a more laissez faire attitude to the children’s safety. For example, he inappropriately drove with X unrestrained in a car and appeared to be utterly dismissive of the risk. He also has potentially breached X’s need for appropriate privacy and decorum in allegedly allowing her to get changed in a highly visible place [the school car park]. There was a report in the school file of another parent observing X stripping naked in the car but quite visible to other parents and children, whilst the father was standing outside the car. To be clear, I do not think that this [if it has in fact occurred] is a sexually deviant parenting behaviour. Instead I think it may be reflective of father’s desire to make his own parenting decisions which directly defy the mother’s stated concerns which he considers to be intrusive and anxiety driven.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children or the parents that the expert considers relevant;
[293]The father has been formally cautioned and disciplined in relation to his behaviour in his workplace. My reading of the material from the Employer O indicates that the father has been the subject of professional complaints in relation to his behaviour in the workplace in multiple instances and across several years. Although some of the material that was subject to investigation was provided to the employer by the mother, there were many other aspects of the father's behaviour which had come under investigation over the years. I will discuss the implications of this later.
[294]The father's criminal history indicates that over a period of time he stole a substantial sum of money from his employer, Employer P. The father entered into a deed with the employer so that he was not charged with any criminal offences but agreed to pay back the substantive sum. When I questioned the father about this, he accepted that he had done the wrong thing but simply said that he had done so because the money was accessible and available. He did not demonstrate any real remorse or embarrassment about his former actions when I interviewed him.
If the children are Aboriginal children or Torres Strait Islander, any matter relevant to the children’s capacity to enjoy and maintain connections to that culture and the likely effect of any orders the court might make on that right;
[295.] The children are not of Aboriginal or Torres Strait Islander background.
Any family violence involving the children or a member of the family;
[296]As mentioned previously, I think that both X and Y have been exposed to family violence in the form of ongoing verbal altercations between the parents. They may continue to be exposed to family violence in the form of conflicted exchanges between their parents.
[297]The mother alleges that the father has subjected her to verbal denigration, was emotionally abusive towards her and that he would be physically threatening such as punching holes in walls.
[298]The father denies these allegations and asserts that the mother swore at him during arguments. The mother said that she would swear at the father during arguments, but that this occurred after much provocation.
[299]I have no real way of knowing the nature, source or type of violence which may or may not have occurred during the marriage. The father does not present as a coercive, controlling person. Although I have many concerns about the father's personality and the appropriateness of his behaviour, he was not denigrating of the mother or seeking to control or correct her behaviour in a manner which is typically seen in perpetrators of coercive controlling violence. That said, there was some indication from the material that the father has at times been impulsive and verbally aggressive towards others. It may be the case that the father has been verbally aggressive or provocative to the mother, but I have no real way of knowing.
The attitude to the children and to the responsibilities of parenthood, demonstrated by the children’s parents;
[300]The mother appears to have a very responsible attitude to parenthood and its concomitant responsibilities. She has diligently cared for the children at the same time as maintaining her responsibilities as a public servant. The mother appears to be organised, responsible and meticulous in her care of the children.
[301]The father also presents as a responsible parent insofar as he has taken an active interest in the children's lives, has communicated with their school and preschool and appears to appropriately care for and love the children.
[302]I am concerned that the father has minimised some aspects of his own behaviour and the degree to which he has posed a risk to the children. For example, I think that the father has posed a risk to the children in terms of the possibility of them accessing pornography on devices which he has used for this purpose. The father spoke in rather mixed terms about this, on the one hand utterly denying that X could have had access to any pornographic material because he has a parental lock on his mobile telephone. At the same time he did speak about X accessing the camera on his mobile telephone. He seemed naïve or oblivious to the possibility that X could come across offensive and inappropriate material. The fact that the father had made such a monumental error in sending an explicit and offensive video of himself masturbating to his work colleagues does not appear to have caused him to become overly cautious with respect to electronic devices. The father appeared to be defensive in relation to my questions about the possibility that X could have access to devices which may depict pornography.
[303]I was also concerned about the father's accounts in his affidavit of driving with X unrestrained and on his lap in a car.
The effect on the children spending equal time or substantial and significant time with each parent having regard to parent’s current and future capacity to:
a. Implement such an arrangement; and
b. Communicate with each other and resolve difficulties that might arise;
[304]As mentioned previously, the parents currently have a very poor capacity to communicate properly. The risks for the children if they were to be spending equal or substantial and significant time with each parent are that they would continue to be exposed to parental conflict, confusing and mixed messages about their father and potentially to repeated hypervigilance and questioning in relation to the risk of sexual abuse. I am also concerned that the father may deliberately take steps to undermine the mother’s parenting boundaries if he deems her concerns to be spurious or an effort to control him.
[305]These issues are significant because of the ages of the children, who completely rely on their parents to communicate properly.
The mental state of both the parents in so far as it relates to parenting issues;
[306]The mother’s history indicates that she had one previous episode of depression in early 2013. The notes from the mother’s GP indicate that she sought psychological assistance at that time from psychologist Ms Q and responded well with lifestyle modifications. She was prescribed an antidepressant medication and her depression resolved. This corresponds to the history the mother provided to me.
[307]The mother then appeared to have developed anxiety in the context of the conflict in the marriage and the discovery of the father’s sexual behaviours. The notes from the mother’s GP, Dr R, indicate that in March 2019 the mother was referred to a psychologist for treatment of an Adjustment Disorder with symptoms of stress and anxiety. The mother presented as a person suffering from symptoms of anxiety. For example, she deposed [affidavit of 1 November 2018] that she suffers from anxiety “to the extent that every time the children are in his care, I am completely anxious and worried about their welfare”. This was consistent with the account that the mother gave me of being hyper-aroused, distressed and anxious when the children are spending time with the father. She reported symptoms of physical anxiety, such as sleep disturbance and hyperarousal. She also demonstrated a heightened degree of anxiety at times when she had contact with the father and/ or the paternal family. For example, she deposed [affidavit of 17 August 2019] that she experienced a high level of anxiety and stress because the father and his parents attended X’s athletics carnival.
[308]The mother presents as emotionally fatigued by the father, angry and disgusted by his behaviour and anxious as to the risk that the father poses to the children. As mentioned previously, the mother has, in my view, conflated the risks of poor judgement and relational boundaries evident in the father’s behaviour with sexually deviant behaviour which would cause a specific risk to X. This may be because she is currently still suffering from such a heightened degree of stress and anxiety and is unable to decouple her repulsion at the father’s actions in one context with a risk assessment of his behaviour in another context.
[309]I think that the mother’s anxiety has escalated significantly in the last 6 months. At second interview with me, the mother presented as hypervigilant to threat to the extent that she had developed beliefs that the father was stalking or following her, based on the flimsiest evidence. For example, she cited a conversation X was recorded to have with her father about a trip to the zoo, and the father’s comment that she had done this with her maternal family as proof that the father had been following her or tracking her whereabouts. The mother said she believed that she was being “watched” at her previous home and described other symptoms of anxiety. I think the mother suffers from an Anxiety Disorder and requires appropriate treatment. I note that the mother initially commenced treatment, but that this has been interrupted due to the Covid-19 situation. She reported that her GP had prescribed antidepressant medication which was assisting her.
[310]The history indicates that the mother has never had an underlying psychological issue of significance and this bodes well for her capacity to recover over time.
[311]With respect to the father, he was referred to Mr S, Clinical Psychologist in November 2018. The treatment notes from Mr S indicate that Mr Corson was referred to Mr S by his GP with a tentative diagnosis of Adjustment Disorder in the context of the marital breakdown and the ongoing issues with parenting arrangements. Mr Corson appears to have been forthright with Mr S regarding the allegations that have been made about him and his conduct in the workplace. The father has continued to seek treatment from Mr S.
[312]In my view the father does not have an acute mental health disorder. However he has personality features which are relevant to his parenting capacity and capacity to productively co-parent with the mother.
[313]The father presents as having low insight into the effect of his behaviours on others. He appears to minimise his own actions and seeks to blame others or rationalise his actions in particular contexts. For example, when I questioned him regarding his relationship with his former mother in law, he indicated that he did refer to her as a “cunt head” but that he was not the first one to “initiate” this language because his former brother in law had used the same term to describe her. He failed to accept any responsibility for such verbal denigration and simply deflected his responses towards criticism of his former mother in law.
[314]There were other indicators, particularly in the material subpoenaed from the Employer O materials that suggest that the father has had a similar lack of insight and tendency to attribute blame to others, rather than accepting full responsibility.
[315]In 2010 the father was investigated in relation to a complaint that he had made a female staff member feel uncomfortable in relation to his inappropriate behaviour towards her. The material indicated that the employer received complaints from 3 female staff members in relation to the father’s behaviour, including inappropriate comments with sexual innuendos and other socially inappropriate comments in the workplace. The father received a formal written warning from the Employer O that his behaviour was inconsistent with his professional responsibilities under the Code of Conduct.
[316]Despite this early experience, the father was more recently investigated for matters including inappropriate behaviours towards female staff. The father was found to have been sending and receiving pornographic text messages during the school day, making other staff feel uncomfortable and engaging in inappropriate behaviours and comments, for example about women’s breasts or initiating comments about sex. The father sent an explicit video depicting masturbation to four colleagues. Despite these reports, I noted that in a telephone call to the investigating body the father said [on 26 September 2018] “I can’t think of anything I have done that could have offended anyone or could be considered sexual harassment”. This seems at direct odds with the father’s knowledge that he had sent the video and demonstrates a complete lack of insight into how his comments and behaviours have been perceived by other staff members. The father was in a leadership position of great responsibility when he engaged in these behaviours which suggests a lack of proper behavioural regulation and capacity to exert appropriate boundaries. What is most concerning, however is his complete lack of insight into his behaviour and its impact on others. This is particularly stark given the fact that the father had previously been cautioned about exactly the same issue some years prior.
[317]Even in the most recent and very serious investigation, where the father was removed from his duties whilst the investigation was on foot, the father was repeatedly and strongly cautioned against having any contact with his former colleagues. However, the material indicates that he did contact two former colleagues and expressed his frustration that the investigation had been instigated because it had been Ms Corson who had informed his employer of his actions.
[318]Other matters that may be relevant to the father’s personality include reports from September 2014 where the father was investigated in relation to hugging a student to congratulate him for good performance. The father was not deemed to have behaved inappropriately, but there were other concerns expressed about Mr Corson at this time, including that he raised his voice and interrupted other staff.
[319]The records of the NSW Department of Family and Community Services indicate that on 12 April 2018 the father became hostile and aggressive when visited by caseworkers at the family home in relation to a notification that he made. The notes indicate that Mr Corson told the caseworkers to “go where they are needed”.
[320]If these reports are accurate, then they suggest that the father may, at times, respond in socially inappropriate ways, including behaviours which could be interpreted as aggressive.
[321]These features of the father’s personality would make it difficult for the mother [or others] to properly raise issues of concern and would have a significant impact on his parenting and his capacity to co-parent. I think the father would find it difficult to accept criticism of his parenting and to modify his parenting to accommodate such criticism.
Any other matter the Court Expert considers relevant.
[322]As mentioned previously, there is no material available to me at this time which would indicate that the father poses a risk of sexual harm towards either of the children. In my view the father does have deficits with respect to appropriate personal boundaries and interpersonal relationships which are likely to adversely affect the co- parenting arrangements and may also have a deleterious impact on his parenting.
[323]However, there is no indication that he has ever been a risk of sexual harm to children. I have considered the risk that the children may suffer some harm if they become aware of or exposed to the father’s sexualised comments or images and consider that this is a moderate risk and may become more escalated as the children grow [and have more access to electronic devices and more competency in accessing technology].
[324]However, the mother is firmly of the view that the father poses a direct and continuing risk.
[325]The real conundrum for the Court, in my view, is predicting whether, over time, the mother could reframe her perception of risk. As mentioned previously, I initially held the view that the mother may be persuaded that whilst abhorrent to her, the father’s inappropriate sexual behaviours have never involved any direct risk of sexual offending against children. I no longer think that this is possible and have the view that the mother will continue in her position and conviction that the father continues to pose a direct risk of sexually abusing X. The issue then is that the long-term risks to the children include that the children [or at least X] will continue to be exposed to ongoing investigations, repeated questioning and a degree of hypervigilance about their behaviours which would place them at significant psychological risk.
[326]On the other hand, if the children have no contact with the father, I think that they will have other significant long-term risks, which would also have profound and deleterious effects on their sense of identity and psychological wellbeing in the long- term. The mother has made the most serious allegations that can be levelled against a parent and continues to hold views that are inconsistent with impartial advice. As such, X may come to believe things that are not true, may learn to distrust herself and other adults and may have dysfunctional interpersonal relationships in her own life.
[327]Overall I think that both parents have very good parenting skills, that the children love both of their parents and that both parents want the best for the children. The children will suffer enormous loss if they are to lose access to one or other of their parents. This loss will be profound and have an adverse effect on the trajectory of their lives.
[328]Regrettably in my view the court will need to evaluate the least-worst outcome for these children.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Expert Evidence
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Jurisdiction
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Remedies