Dagmar & Hektor
[2024] FedCFamC1F 355
•24 May 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Dagmar & Hektor [2024] FedCFamC1F 355
File number(s): BRC 1521 of 2022 Judgment of: HOGAN J Date of judgment: 24 May 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks to spend time with the children – Where the mother seeks that the children spend no time and have no communication with the father – Where the father has not seen or communicated with the children since May 2021 – Where there were allegations of sexual abuse by the father made by his niece to police – Where the father has subjected the mother to a cycle of intimidation and abuse – Where the mother has a genuine fear of the father – Where the father represents an unacceptable risk of harm – Where it is ordered that the children continue to live with the mother and have no time or communication with the father Legislation: Family Law Act 1975 (Cth) Cases cited: Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1998] HCA 68
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: First Instance Number of paragraphs: 219 Date of hearing: 22, 23 and 24 August 2023 Place: Brisbane Counsel for the Applicant: Mr Cahill Solicitor for the Applicant: Stone Group Lawyers Counsel for the Respondent: Ms De Marco Solicitor for the Respondent: Bridges Family Law Specialists Counsel for the Independent Children's Lawyer: Mr Todman Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 1521 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAGMAR
Applicant
AND: MR HEKTOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
24 MAY 2024
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children, X, born 2016, and Y, born 2018, live with the mother.
3.The mother have sole parental responsibility in respect of all major long-term issues, as that expression is defined in the Family Law Act 1975 (Cth), relating to the children.
4.The children shall spend no time with and have no communication with the father.
AND IT IS FURTHER ORDERED THAT
5.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 24 May 2024, the Reasons for Judgment published in support of the same and the Family Report dated 23 May 2022 authored by Ms J to the school at which the children attend, to any therapist upon whom the parents and/or the children attend for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services and/or the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
6.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
7.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
8.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
9.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dagmar & Hektor has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders which are in the best interests of seven year old X, who was born 2016 and five year old Y, who was born 2018.
The parents commenced their relationship in about 2015 and separated finally in May 2021. Despite the date of separation, it was agreed that X and Y have not had any unsupervised time with the father since before Christmas 2020; it was also agreed that they have not spent any time or communicated at all with their father since around May 2021. It is accepted that this has occurred in circumstances where, before the parental separation, the father had been very involved in the children’s day-to-day care, as he was not then employed outside the home and had cared for them when the mother was at work.[1]
[1] Family Report dated 23 May 2022 of Ms J filed 6 June 2022, paragraph 34.
X, who has been diagnosed with a medical condition and who is being investigated for a number of other health issues, and Y, who has reportedly been diagnosed with a medical condition, currently live at an address (that was undisclosed until inadvertently recounted during the trial) with the mother and her children from a previous marriage: 12 year old B, who was born 2012 and whom has been diagnosed as being autistic and 10 year old C, who was born 2013. B and C spend time with their biological father during the school holidays. The mother and her children share the property with the maternal grandmother and, since late 2022, Mr E (with whom the mother commenced a relationship in about mid-2022) and his 10 year old son D, who spends time with them every alternate weekend.
The father previously lived with the paternal grandparents and his younger brother, Mr F. His evidence included that he did not want to disclose where he was living at the time of the trial. Whilst his affidavit evidence (sworn in late June and mid-July 2023) included that he had a girlfriend (“Ms G”) with whom he said he had been in a relationship for about a year (and about whom his evidence included that: they do not live together; she and her daughter lived approximately three and a half hours drive away from where he lived but they had visited each other on numerous occasions)[2], his evidence when cross-examined revealed that he had started a relationship with a woman called “Ms H” and had recently moved to live with her, her two year old daughter and her sister in premises the address of which he did not wish to disclose.
[2] Affidavit of the father sealed 30 June 2023, paragraph 64.
The father’s evidence also included the assertion that he did not want to disclose Ms H’s surname because she works in a government department and he was concerned that the mother may act in some way that would somehow jeopardise Ms H’s employment or, at the very least, make things difficult for her at work.
Neither “Ms G” nor “Ms H” – whom the father said he had met online and started dating four months ago (albeit that this evidence conflicted with that given by the paternal grandmother about the start of his relationship with Ms H) and with whom he had started to live with about two months before the trial commenced – were called as witnesses in the father’s case.
Some general comments as to credit
Whilst specific reference is made to aspects of the evidence given by each of the parents and those witness called in their respective cases during these Reasons, I have had regard to all of the same[3] in arriving at those findings which must necessarily be made, in the context of the dispute about the proper parenting orders to be made, in this case.
[3] Including by rereading the affidavits relied on by each parent and the Transcript of the proceedings.
Whilst the father told Ms J that he had statements from his brother and “people” saying he had never been alone with his niece,[4] he subsequently confirmed that he did not have any statements from his brother or people to that effect. The father also said, in effect, when asked if there was any reason why he told Ms J that he had such statements when he did not, that he had been “a bit lost”. Whether that was the case or not, it seems likely the father lied when he told Ms J (as I accept he did) that he had statements from people which would show that he had never been alone with Ms K. It seems more likely than not that at least one reason for telling Ms J what he did may well have been to cast significant shadows across Ms K’s accusations and, in essence, to seek to undermine them.
[4] Family Report, paragraph 60.
Further, given Ms H’s absence as a witness in the father’s case, I was generally unpersuaded about the extent to which he has made her aware of the allegations made against him by his niece and the other matters alleged by the mother in these proceedings – including her allegations of significant domestic violence (which included being grabbed around the neck by the father on two separate occasions) and the extent of his threatened self-harm, which included holding a weapon to his own throat and threatening to kill himself and, when the mother did not withdraw, subsequently threatening to kill her first, before killing himself.
The mother’s evidence included that the father told her he had been sexually abused by his half-brother (Mr L) on many occasions, that Mr L only stopped doing this when the father was 15 years old, that Mr L also sexually abused his sister (Ms M) and his younger brother (Mr F) on many occasions when they were children and that his entire family knew what had happened but no one had done anything about it.[5] The father denied the mother’s account: he said the abuse ceased when he was six years of age and Mr L was 13 years of age;[6] whilst he agreed that Mr L had perpetrated abuse, he denied that the entire family knew about this and said the paternal grandparents were unaware of it until he and his siblings had reached adulthood.[7] Despite his evidence, I accept that the father told Ms J that Mr L had sexually assaulted him and his other siblings on multiple occasions during their childhood and that he said the abuse "was addressed" by their parents: he said “dad was disgusted, and [Mr L] moved out” but the abuse had not been reported to the police.
[5] Affidavit of the mother filed 4 July 2023, paragraphs 106 and 107.
[6] Affidavit of the father filed 18 July 2023, paragraph 177.
[7] Affidavit of the father filed 18 July 2023, paragraph 178.
Despite the other evidence he gave about the issue of Mr L’s abuse, the father’s evidence included that the paternal grandparents learned of this abuse when he was four or six years of age – he said he had some memory of the paternal grandmother taking Mr L to a police station to scare him, although no formal complaint to police was made; the paternal aunt’s evidence included that she did not know whether her parents knew of the abuse perpetrated against her (and the father) when she was a child; the paternal grandmother’s evidence included that she did not know of the childhood abuse when the father was a child and only became aware of this when he was an adult – sometime around late 2020, when Ms K (Mr L’s daughter and the father’s niece) alleged that she had been sexually abused by the father.
If the father’s account about this issue is accepted, the paternal grandparents failed to take appropriate steps to deal with the father’s allegations that he had been repeatedly sexually abused by Mr L over several years; if the paternal grandmother’s evidence about this issue is accepted, the father has deliberately lied about her alleged knowledge of his abuse.
The resolution of the conflict between the father’s direct evidence and the paternal grandmother’s direct evidence about the state of the paternal grandparents’ knowledge of the abuse he said had been perpetrated against him by Mr L is not made any easier by the father’s evidence that he remained in contact with Mr L (including on occasions when both of them attended parties, such as the party at which Ms K alleged she had been abused by him), that the two of them worked together for a while (albeit he said this was of short duration) and that he moved to live with his parents (who, on his account, had failed him and his sister so egregiously) after he was accused, in late 2020, of sexually abusing Ms K and, seemingly, he continued to live with them until approximately two months before the trial began, when he moved to live with Ms H.
Having regard to:
(a)the focus of these proceedings; and
(b)the fact that Mr L was not a witness in this case; and
(c)the fact that the paternal grandparents are not themselves seeking parenting orders in relation to the children; and
(d)my conclusions, expressed throughout these Reasons, that it is not in the children’s best interests to spend any time or have any communication with the father,
I have ultimately concluded that it is unnecessary to express any firm conclusion about whether or not the paternal grandparents knew about the sexual abuse perpetrated by Mr L on the father and his sister at a time contemporaneous to the occurrence of the same; or even to express a concluded view about whether even the possibility that this may have been the case would be sufficient to persuade of the conclusion that, without further investigation, the children would be at an unacceptable risk of harm if they were to have any future communication or contact with the paternal grandparents.
Having regard to the matters discussed above, I have concluded that the father is a witness whose evidence must be assessed with significant circumspection; I found him, on occasions, to prevaricate; I was left with the very distinct impression that he was quite capable of seeking to tailor or adapt his responses in his attempts to present himself in the best possible light.
Where the father’s evidence and that given by the mother (supported by the evidence given by the maternal grandmother and the maternal aunts of their respective observations of his conduct and the mother’s presentation to them on various occasions) and the witnesses called in her case conflicts, I prefer the evidence given by the mother and the witnesses who gave evidence in her case.
Brief overview of circumstances which resulted in Departmental involvement, various orders in the Children’s Court and interim parenting orders
Whilst more is said elsewhere about this issue, it is useful to note here that, after the mother learned in late 2020 that Ms K had alleged that the father had previously sexually abused her, the Department became involved with the family.
In early 2021, the mother signed an immediate Safety Plan with the Department in terms which required her to ensure that the father did not have unsupervised time with all of her children.[8] This plan was set for review a short time later and, on the mother’s evidence, was to expire some months’ later.[9] This Safety Plan contains nothing specific about the children spending time with the father; whilst the father appeared to accept this, he said that it had been explained to him that he was to have no contact with the children unless the same was supervised by the Department.
[8] Affidavit of the mother filed 4 July 2023, paragraph 18.
[9] Affidavit of the mother filed 4 July 2023, paragraph 21.
In early 2021, a second Safety Plan was executed by the mother; it was not signed by the father. This plan was set for review a short time later. At that time, a third Safety Plan, unexecuted by the parents, allowed the father, only with approval from the Department, to spend time with the children only if he was supervised by one of the maternal aunts. This plan was to be reviewed some time later in 2021.
I accept the mother’s evidence to the effect that, in around early 2021, she sought legal advice and was told not to sign a further Safety Plan because there was no need and that she should keep doing what she was doing in letting the father spend time with the children and doing video calls, provided that these interactions were supervised.[10]
[10] Affidavit of the mother filed 4 July 2023, paragraph 23.
On balance I accept that it was not until early 2021 that there was any mention of persons other than Departmental officers supervising any time the children may have with the father; I also accept that it was then that the Department gave permission (which was to expire approximately a month later) for the maternal grandmother and the maternal aunts (Ms N and Ms O) to supervise the children’s time with their father.
I accept that, in early 2021, the Department applied for a 12-month supervision order, in relation to each of the mother’s four children, in the Children’s Court.[11] I accept that, in early, an interim supervision order was made in terms which provided that the father could not have contact with the children unless this was supervised by someone approved by the Department.[12]
[11] Affidavit of the mother filed 4 July 2023, paragraph 19.
[12] Affidavit of the mother filed 4 July 2023, paragraph 20.
I accept, as was submitted (in essence) by Counsel for the mother that, as a result of the father’s continued pressure, the mother agreed to allow the children to spend time with him, with such time to be supervised by a maternal aunt. I accept the evidence given by each of the maternal aunts about their involvement in supervising the children’s time with their father and that, in essence, this was very limited; I also accept that the father failed to attend to spend supervised time with the children on at least one occasion.
I accept that in mid-2021, the father sent the mother and members of both the maternal and paternal extended families a note threatening self-harm; after the paternal grandparents located him, he was taken to a local hospital and admitted; I accept he was very distressed, initially tried to escape and was restrained by security after having a number of aggressive emotional outbursts; I accept that, subsequent to this attendance, the paternal aunt contacted the mother to ask her to bring the children to see the father and the paternal grandmother advised hospital staff that he would be okay once he was able to see the children.
I accept that, after this and in mid-2021, the father told a Departmental officer that the mother had allowed him to spend time with the children.[13] I accept the mother’s evidence to the effect that, she now knows that letting the father spend time with the children was a breach of the Children’s Court Order because, even though he was supervised, the time was not authorised because there was no Safety Plan in place.[14]
[13] Affidavit of the mother filed 4 July 2023, paragraph 24.
[14] Affidavit of the mother filed 4 July 2023, paragraph 25.
I accept that, in mid-2021, the Department was granted temporary custody in relation to all four of the mother’s children: pursuant to this, B and C went to live with their biological father and X and Y were taken into foster care. I accept the mother was only allowed to see the children on a supervised basis.[15]
[15] Affidavit of the mother filed 4 July 2023, paragraph 26.
I accept that, in mid-2021, the Department filed a new application in the Children’s Court seeking a 12-month custody order in relation to all four of the mother’s children.[16]
[16] Affidavit of the mother filed 4 July 2023, paragraph 27.
I accept that, in mid-2021, the mother applied for a protection order against the father in the Magistrates Court at Brisbane and a Temporary Protection Order was granted.[17] I accept Counsel for the mother’s submission to the effect that the terms of this order were such that it could be described as a “no contact” order and a “no location” order.
[17] Affidavit of the mother filed 4 July 2023, paragraph 28.
I accept that, despite such terms, the father tried eight times to contact the mother the next day.
The father’s evidence about this issue included that, at the time he tried to contact the mother, he had not been served with the Temporary Protection Order. In the absence of any evidence to contradict this assertion, I accept this aspect of the father’s evidence; however, I also accept, as was submitted by Counsel for the mother, that the father had previously been served with the mother’s application for a Protection Order (which prescribed the terms of the order she was seeking) and that, consequently, he continued to try to contact her despite knowing that she wanted an order preventing him from having any contact at all with her.
I accept that, in mid-2021, the mother’s children were returned to her care by the Children’s Court under a supervision order which provided the father could not spend time with the children unless this was supervised by someone approved by the Department.[18]
[18] Affidavit of the mother filed 4 July 2023, paragraph 29.
I accept the evidence given by the maternal uncle, Mr Q, that in mid-2021, two people unknown to him made a threat about the mother and the children.[19]
[19] Affidavit of Mr Q sealed 3 July 2023, paragraphs 5-9.
I accept that, in late 2021, the father consented, on a “without admissions” basis, to a final protection order which lists the mother, all of her children and her sisters as “named persons” and which has effect until late 2026.[20]
[20] Affidavit of the mother filed 4 July 2023, paragraph 30.
I accept that, in late 2021, the Department filed further material in the Children’s Court to indicate an intention to seek a directive order prohibiting the father from having time with the children unless this time was supervised by someone approved by the Department.[21] I accept that some days later, at a Court ordered conference, an officer from the Department told the mother that the Department would withdraw this application if a family law order was made in relation to X and Y.[22]
[21] Affidavit of the mother filed 4 July 2023, paragraph 31.
[22] Affidavit of the mother filed 4 July 2023, paragraph 32.
I accept that, in late 2021, the Department withdrew the application for a Children’s Court order in relation to B and C.[23]
[23] Affidavit of the mother filed 4 July 2023, paragraph 33.
I accept the mother’s evidence that, in late 2021, when she was in her car with C, a stranger pulled up next to her and, using his hand, imitated a gun to his head and pointed at her. I accept the mother reported this event to the police and to the Department and that it caused her significant concern and made her want to move out from her residence.
I accept that, in late 2021, the mother was attacked by an unknown assailant at her home; when police attended, she was lying on the floor of the garage and was concussed; she was taken to a local hospital where she was treated for concussion, bruising and a fractured wrist. She did not recognise her assailant. I accept the maternal aunt’s evidence that she thought she saw the father’s half-brother at the hospital; I accept this likely added to the mother’s fears and suspicion that the father was, in some way, responsible for her assault.
I accept that a short time later, the mother was assaulted again at her home and seriously injured; again, police attended. Again, she did not recognise her assailant. I accept her account of what happened, including that the assailant said to her: “the next time I see you, you’re dead”.
I accept that, after this second assault, the mother moved with the children into a refuge and then moved to live at an undisclosed location.
I accept that the mother applied for parenting orders on 14 February 2022.[24]
[24] Affidavit of the mother filed 4 July 2023, paragraph 34.
I accept that, on 8 March 2022, a Senior Judicial Registrar ordered, by way of interim parenting order, that: the children live with the mother; the mother be accorded sole parental responsibility for the major long-term issues relating to the children; and the children spend no time and have no communication with the father.
I accept that, in mid-2022, the Department withdrew the application for a Children’s Court order in relation to X and Y.[25]
[25] Affidavit of the mother filed 4 July 2023, paragraph 36.
The father denied being in any way involved in, or responsible for, the conduct reported by Mr Q as having happened in mid-2021 or by the mother as having happened in late 2021; he denied being in any way involved in, or responsible for, the attacks and assaults perpetrated against the mother in late 2021. He maintained such denials during his cross-examination at the trial and it is accepted that he has not been charged with any offence arising out of the events on these days. Despite these matters and the mother’s inability to recognise the person/s who attacked her in late December 2021, it is overwhelmingly clear that the mother and the maternal extended family continue to believe that the father – or members of his family – were in some way responsible for the events which started when Mr Q was spoken to in mid-2021 and which ceased when, following the late 2021 assaults, the mother moved to live at a destination that was unknown to the father.
Whilst the father’s attitude to the mother’s reports of being assaulted twice in late 2021 was that these were fabrications (he told Ms J, the author of the 23 May 2022 Family Report, that he was “calling bullshit”)[26] and that she had been injured in a motor vehicle accident. Counsel who appeared for him at trial advised that, following the opportunity to see the police documentation which related to each reported assault, the father no longer pursued this contention.
[26] Family Report dated 23 May 2022 of Ms J filed 6 June 2022, paragraph 59.
However, he certainly maintained that he was not in any way responsible for these events.
Overview of the competing proposals and the bases for the same
The mother
The mother sought that orders be made for the children to live with her and spend no time and have no communication with the father. She also sought that she be accorded sole parental responsibility for the major long-term issues relating to them. Her position was that such orders are in the children’s best interests because she contends that the Court would be persuaded that the father poses an unacceptable risk of harm to the children as a consequence of:
(a)his asserted significant family violence toward her, which she alleged included: squeezing her neck with his hands; choking her; repeatedly threatening to kill himself; telling her that, if he could not have the children, he would make sure that she could not have them either; punching a hole in the door of a room; throwing her to the ground when she refused to have sex with him; throwing items around the home; sharpening knives owned by him at a time and in a manner that was intended to intimidate her; calling her derogatory and belittling names such as “bitch”, “cunt”, “slut” and “fat”; humiliating her in front of others by criticising her as a parent and partner; constantly calling and messaging her when she was away from the home and contacting relatives to find out where she was; taking her phone, car keys or the children to prevent her from leaving the home during arguments; threatening her that “if I can’t have you nobody can” and telling her that “I won’t stop until you have to take out a AVO”; and
(b)his asserted sexual abuse of Ms K, who had alleged in late 2020 that he sexually abused her on a number of different occasions when she was between eight and 15 years of age and that such abuse included: touching her vagina; inserting his fingers into her vagina and getting her to masturbate him; and
(c)his asserted inability to regulate his emotions and behaviours; and
(d)his chronic use of marijuana, without which his behaviour was more aggressive.
After the evidence closed, Counsel for the mother submitted that no contact should occur between the children and the father – not an email, a Christmas card, nor a letter should be sent from the father to the children – because of the impact any contact with him, or communication from him, would have on the children and also because of the very deleterious impact this would have on the mother’s parenting capacity, noting that the father’s final position was that the children’s best interests would be served by continuing to live primarily with the mother.
The father
The father denied sexually abusing Ms K. He denied all of the mother’s claims about his alleged violent behaviour toward her; he asserted that she suffered injuries in a motor vehicle accident and had suffered countless injuries as a consequence of her choice of motor vehicle – his initial position was that she was falsely using the injuries she suffered in the same to support her claim about his alleged violence. He also asserted that she had been threatened with violence by others as a consequence of her driving in places where she was not allowed to drive– at least inferentially, he sought to contend that at least the two serious assaults she suffered in late 2021 were somehow connected with this.
By the Response,[27] the father asserted that the children’s best interests would be met by orders which accorded the parents equal shared parental responsibility for the major long-term issues relating to them, for them to live with the mother and spend time with him:
[27]Amended Response to Initiating Application sealed 2 May 2023.
(a)for four weeks: for two hours per week, supervised at the R Centre, with the cost to be shared equally between the parents; and then
(b)for four weeks: for two hours per week, unsupervised, on a Saturday; and then
(c)for four weeks: from 9.00 am to 1.00 pm each Saturday; and then
(d)for four weeks: from 9.00 am to 5.00 pm each Saturday; and then
(e)for four weeks: from 9.00 am Saturday to 5.00 pm Sunday each fortnight; and then
(f)for four weeks: from after school or 3.00 pm Friday until 5.00 pm Sunday each alternate weekend; and then
(g)for four weeks: from after school or 3.00 pm Friday to before school or 9.00 am Monday each fortnight; and thereafter
(h)on the following basis:
(i)for four nights each fortnight during school terms, being:
(A)in week one: from after school or 3.00 pm on Friday until before school or 9.00 am on Monday; and
(B)in week two: from after school or 3.00 pm on Thursday until before school or 9.00 am on Friday.
(ii)for half of the school holidays and at nominated times on special or celebratory occasions.
The father also initially proposed that the children communicate with him by telephone between 6.00 pm and 6.30 pm each Wednesday.
However, on the final day of the hearing, Counsel for the father submitted that the father accepted that:
(a)it was appropriate, having regard to the evidence, for the Court to make an order according the mother sole parental responsibility for the major long-term issues relating to the children; and
(b)his initial proposal (set out above) about the alternate overnight time in alternate weeks was impractical, given that he does not know where the mother lives (other than, following the misstatement by one of the witnesses called in her case, the region in which she lives) and, I infer, because he does not want her to know where he is now living with Ms H.
However, Counsel submitted that the father maintained that it was in the children’s best interests for them to be allowed to have contact with him and that such contact increase over time: it was submitted that interactions between the children and the father could begin under supervision, with the ultimate plan of moving to some kind of alternate weekend time. Exactly how this could be funded, even if it was determined to be practicable and in the children’s best interests, was, I consider, less than developed, especially given the father’s evidence that impecuniosity had previously prevented him from undertaking required hair follicle testing.
The Independent Children's Lawyer
Counsel for the Independent Children's Lawyer supported the mother’s position and proposed that orders should be made for the children to live with the mother (to whom should be accorded sole parental responsibility for the major long-term issues relating to them) and to spend no time or have no communication with the father.
Counsel for the Independent Children's Lawyer also submitted that the Court would be persuaded that:
(a)the children would be at an unacceptable risk of harm if they spent time or communicated with the father; and
(b)the mother has a genuine fear of the father, noting that she has moved to safeguard her location, has taken additional security measures at her home and at the Court and wore an alarm device; and
(c)the children spending time or communicating with their father would be so significantly deleterious in its negative impact on the mother’s capacity to discharge all of those matters associated with being the children’s primary parent (as it is accepted she will remain), that it is not in the children’s best interests for them to be required by order to spend any time, and/or have any communication, with the father.
As is apparent from that which follows, I generally accept the thrust of these submissions made on behalf of the Independent Children's Lawyer.
APPLICABLE PRINCIPLES
In these proceedings, being proceedings for a parenting order[28] in relation to the children, I may, subject to s 61DA[29] and s 65DAB[30] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[31] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[32] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[33] The matters to which regard must be had in determining those parenting orders which are in the children’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[34]
[28] Family Law Act 1975 (Cth) s 64B.
[29] Presumption of equal shared parental responsibility.
[30] Parenting plans.
[31] Family Law Act 1975 (Cth) s 65D.
[32] Family Law Act 1975 (Cth) s 60B.
[33] Family Law Act 1975 (Cth) s 60CA and s 65AA.
[34]See: Banks & Banks (2015) FLC 93-637 - whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings.
Whilst the issue of the benefit to the children of maintaining a meaningful relationship with each of their parents is the primary consideration which is first listed in s 60CC(2) of the Act, it seems to me that this consideration is best addressed after determining whether, because of his alleged conduct, the father poses an unacceptable risk of harm to the children. It also seems to me, because the Act mandates that protecting children from harm is an imperative,[35] that it makes sense to reach conclusions about whether the children will be at an unacceptable risk of harm if they spend time with the father before considering whether they will benefit from the opportunity to maintain a meaningful relationship with both parents.
[35] Family Law Act 1975 (Cth) s 60CC(2A.
Given that the father accepts that the children will remain living with the mother, it is obviously unnecessary to undertake the same assessment insofar as the mother, and her household, are concerned.
The imperative of protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[36]
[36] Family Law Act 1975 (Cth) ss 60CC(2)(b) and 60CC(2A).
Authority makes it clear that the resolution of allegations of sexual and other abuse is “subservient and ancillary” to this Court’s determination of such parenting order which is in the children’s best interests.[37] However, an assessment of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting children from harm.[38]
[37] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[38] Family Law Act 1975 (Cth) s 60CC(2)(b).
A judge exercising jurisdiction in parenting proceedings under the Act is not required to decide whether a parent did a specified act on a specified day and that such was unlawful; rather, the judge must consider whether all of the relevant evidence persuades of, or contributes to the persuasion of, the conclusion that the children would be at an unacceptable risk of suffering harm if required to spend time (supervised or unsupervised) or communicate with a parent.[39]
[39]M v M (1988) 166 CLR 69 and the numerous authorities which have been decided after it was delivered, including Isles & Nelissen (2022) FLC 94-092.
In determining whether children will be at an unacceptable risk of harm if they are required to spend time (supervised or unsupervised) or communicate with a parent, the Court undertakes a predictive exercise that requires the determination of whether, based on the evidence before it, it considers there to be a risk to those children in the future: the predictive exercise involves an assessment of the magnitude of the risk and the harm that would be caused to the children if the risk was manifest and the consideration of whether matters can be put in place to adequately mitigate that risk becoming manifest. It is unnecessary for a risk to be assessed as being “probable” before it is unacceptable; depending on the magnitude of the risk and the harm which the children would suffer if it eventuated, the possibility of its occurrence may suffice for it to be regarded as “unacceptable”.
A conclusion that an unacceptable risk of harm exists may be based on matters such as: plausible but unproven allegations of abuse made by a child against the parent alleged to pose the unacceptable risk of harm; evidence of that parent’s sexual interest in children other than the subject children; evidence of a parent’s violent behaviours toward the other parent and/or the children; evidence of the consequences for the parent and others associated with that parent’s mental health issues. Whilst conjecture about the future is based on historical facts and circumstances, only the relevant historical facts need to be proven on the balance of probabilities.[40] An accumulation or coalescence of factors, not individually proven on the balance of probabilities, can still be sufficient to demonstrate the existence of an unacceptable risk of harm to children.[41]
[40] Isles & Nelissen (supra).
[41]Eastley & Eastley (2022) FLC 94-094 and the inferential reference at [31] to Johnson & Page (2007) FLC 93-344 at [68]–[71].
The Independent Children's Lawyer contended that, based on the following categories, the Court would be persuaded that the children would be at an unacceptable risk of harm if they were to spend time or communicate with the father:
(a)the allegations of sexual abuse made against the father by his niece, Ms K, in late 2020; and
(b)the allegation that, when a child, the father had been sexually abused by Mr L and the manner by which the extended paternal family dealt with this, which, it was said, indicated that the father and/or extended paternal family members would not appropriately protect the children from harm – that is, those aspects of the father’s evidence about him being sexually abused by his half-brother which have been discussed earlier in these Reasons; and
(c)exposure to family violence perpetrated by the father; and
(d)exposure to illicit substances consumed by the father; and
(e)exposure to the consequences of the poor mental health manifested by the father over time.
Given the conclusions expressed in paragraphs 10 to 14 (inclusive), I do not intend to discuss further the father’s allegations that, when a child, he was sexually abused by Mr L.
The father’s alleged sexual abuse of his niece, Ms K
Ms K’s complaint to police and police interview
I accept that, in late 2020, the father’s niece, Ms K, made a complaint to police[42] and was interviewed by police[43] in relation to a complaint that the father had sexually abused her. I accept that, during this interview, then 15 year old Ms K made a number of disclosures, including, in summary, that:
(a)when she was eight or nine, she was at the paternal grandmother’s house sitting at the back shed with the father: they were sitting beside each other and the father told her to play with his penis – he pulled his penis out of his clothes, placed her hand on it and told her to move her hand up and down; when asked by the interviewing officer whether she could describe how the father’s penis felt, she said: “weird”; that it felt “veiny”; and that it was “up”; she also said it did not go for long as either her Nanna or Pop came around and said lunch was ready, although they did not see what had happened; she said the father then told her not to tell anyone about this; and
(b)when she was 10 or 11 years of age, at a party on the paternal grandmother’s property: she said she was in a car with her father (Mr L), the father, her uncle Mr F and his friend at nighttime; Mr L was driving, she was sitting on the father’s lap in the passenger seat and Mr F and the friend were seated on the backseat; the father rubbed her thigh and touched her pubic area on the outside of her pants – she said her father did not see because, if he had, he would have done something; and
(c)when she was 12 years old, she was at the maternal grandmother’s property; the father and X (then a baby) were there and the mother had left to go to an appointment; she and the father were sitting on the bed and the father was trying to put X to sleep – she said the father was “playing with my groin and touching my boobs and stuff” and that, whilst he touched her upper thigh, he did not touch her pubic area; she said the father felt her breasts over the top of her clothing with one hand and was feeding X with a bottle with the other hand: the father did not say anything to her after this; and
(d)in late 2020, she and a friend attended a party: she had consumed four alcoholic drinks, whilst having her prescribed medication in her system and, by the time she went back to the paternal grandmother’s house, she was drunk – she said that, at about 11.00 pm, she, her friend and the father went to a shed on the paternal grandmother’s property and sat on the couch and watched television; the father rubbed her thigh and groin over her clothes – when she heard her father pull up the driveway in his car, she stood up and looked back at her friend and saw the father’s thumb in the top of the waistband of her friend’s pants; when her father then walked in, he told her and her friend to go up to the house and go to bed: they went to the bathroom and changed before speaking for a short time before falling asleep in the living room; and
(e)at around 12.30 pm to 1.00 am in late 2020, “when I finally went to sleep, I woke up and he was next to me and his hands were in my pants and his fingers were in me”; she said she was “scared to say something or yell out to someone cause I was scared he would like hurt me but I didn’t do anything. I was pretending I was still sleeping”; she said he had a finger in her vagina (but was not sure which finger) and that it went on for about five minutes, although he was next to her longer than that – she said she had not rolled over to check, but she could feel him there: when asked by the interviewing officer whether she could see anything in the room, she said that she could not really see much in the room, that she had looked to see who was leaving as they left and was pretty sure it was the father because everyone else apart from her Nanna and Pop (who were asleep upstairs) were in the shed – when she woke later in the morning, she spoke to her friend and asked her about having seen the father’s finger in her pants: her friend initially denied this but, when they later went back to Ms K’s house, her friend confirmed that his hand had been there; and
(f)when, in late 2020, she went driving with the father, he asked her if she wanted to have a go, which she declined – he then grabbed her hand and asked her where she wanted to go and she said “up to the house please”; she did not know why the father grabbed her hand but had felt so uncomfortable and so unsafe when he did that she later told her boyfriend, who had encouraged her to tell her sister, then her mother and father.
[42] Exhibit 30.
[43] Exhibit 1.
When interviewed, Ms K said she had not told anyone about these things before because she had been too scared that the father would hurt her; when asked if she had told her father, she said “she hadn’t said a word”. She also told the interviewing officers that she had heard that the father had denied it and said, “obviously he’s not going to tell the truth and I’m scared that no one’s gunna believe me but I just know it’s true”. When she was asked how she would feel if the father walked into the room, she said “I’d feel very uncomfortable. I wouldn’t want to be here”.
The father’s conduct and consequences for him
The father has never been charged with offences arising out of Ms K’s police interview. This arose, I suspect, because the complaint was withdrawn relatively soon after it was made. [44] According to police records, Ms K’s father notified police in late 2020 (that is, on the third day after she was interviewed) that she wanted to withdraw her complaint and it was formally withdrawn some days later.[45]
[44] Exhibit 30.
[45] Exhibit 30.
The father’s evidence, when cross-examined, included that he had heard from Mr L, around late 2020, that Ms K was going to make a complaint to police – that is, he learned of this before she attended on police. He said Mr L had sent him a text (“tell me this isn’t true”) when Ms K made a complaint and that he had replied by texting “What’s not true?”; however, when called on to produce these texts, the father was unable to do so and said that he could not find Mr L’s text to him.
The father said he had gone around to Mr L’s home on the same day as he received the text from him; he said Mr L told him what Ms K had said, and he told Mr L that it was not true and that both of them had cried; whilst he denied that he had been trying to “force” Mr L to get Ms K to withdraw the complaint (and said that he had only been trying to sort out with him what was going on with Ms K), he subsequently admitted that he had asked Mr L to withdraw the complaint – he said Mr L had told him that they had already been to the police station and made statements; when asked what words he had used to ask Mr L to withdraw the complaint, the father said that “I just told him they’re going to take the kids from me..”; he denied mentioning the sexual abuse Mr L had perpetrated on him when he was a child and said this had not come up at all in their conversation; he said his last contact with Mr L had been in early 2021 and that he had not seen or spoken to him since then.
Given Mr L’s absence from these proceedings, the absence of the text messages between the father and Mr L about Ms K’s allegations and the father’s direct disavowal of the suggestion that he raised Mr L’s sexual abuse of him with Mr L during their conversation about Ms K’s allegation that he (the father) had sexually abused her, I am not persuaded that it is safe to make any definitive finding about the content of the conversation the father had with Mr L at that time.
However, I am left with the very distinct suspicion that it is highly possible that, during this conversation – which happened after Ms K made a complaint to police and which predated Mr L telling police that Ms K wanted to withdraw the complaint on the basis that they were moving to live interstate – the father reminded Mr L of his sexually abusive conduct toward him and the prospect of him doing what Ms K had just done in terms of making a complaint to police unless he took on board the consequences for the father of Ms K’s complaint (namely, the removal of the children) and helped him in some way.
The father’s account to the mother and her reaction to the same
I accept the mother’s evidence that, in around late 2020, the father told her that Ms K had told police that they had sexually abused her (an assertion he accepted, in his evidence, that he had made) and that he also strongly denied having ever sexually abused his niece.[46]
[46] Affidavit of the mother filed 4 July 2023, paragraph 13.
Given that I accept that the mother has never sexually abused Ms K, it seems to me to be quite possible that, in seeking to envelop her in what he told her about Ms K’s accusations about his conduct toward her, the father may well have been attempting to encourage the mother to dismiss whatever Ms K said about him – because, on his recounting to the mother, Ms K had also accused her of sexually abusing her and the mother knew that this had not happened.
I accept that, in late 2020, police attended the mother’s home and told the parties that Ms K had told police that the father had sexually abused her on numerous occasions when she was eight to 15 years old of age.[47] I accept that, a few days later, the mother was told that Ms K had withdrawn her complaint to the police and was moving interstate;[48] I accept that the mother then spoke to the Department, which clarified that Ms K had made allegations against the father and not against her.[49]
[47] Affidavit of the mother filed 4 July 2023, paragraph 14.
[48] Affidavit of the mother filed 4 July 2023, paragraph 16.
[49] Affidavit of the mother filed 4 July 2023, paragraph 17.
I accept the mother’s evidence that she had not initially been sure whether to believe what the police told her Ms K had said had happened to her and that this was because she thought Ms K had a lot of problems and could be very manipulative[50] – whilst the mother’s evidence when cross-examined provided examples of Ms K’s conduct which she said caused her to form this view, it seems to me to be quite possible that being told that Ms K had accused her of sexually abusing her is something that may well have influenced the mother to initially regard Ms K as being manipulative and troublesome. It is also something which I accept is highly likely to have influenced how the mother approached the father’s denials of inappropriate conduct toward Ms K – and I accept the mother’s evidence to the effect that, as she had been (on his recounting to her) accused by Ms K of doing something abusive toward the child and as she knew she had not done anything like that, she believed the father’s insistent denials that he had not done anything inappropriate to Ms K either.[51]
[50] Affidavit of the mother filed 4 July 2023, paragraph 329.
[51] Affidavit of the mother filed 4 July 2023, paragraph 331.
I accept the mother’s evidence that, after talking with Departmental officers and thinking about it, she believed it was likely the father did something inappropriate to Ms K; I accept she was scared he would do the same to one of her children if they were left unsupervised with him.[52] I accept that the mother continues to retain this fear.
[52] Affidavit of the mother filed 4 July 2023, paragraph 332.
When cross-examined, the mother said that Ms K had often been attention-seeking and had wanted physical contact; she said that the problems she had referred to in her affidavit included that there had been a lot of instability and dysregulation in Ms K’s care arrangements; she also said, in essence, that Ms K had, on occasions, sought to undermine familial relationships to get what she wanted. Of course, such behaviour by a then teenager does not necessarily persuade of the conclusion that her complaint of being sexually assaulted by her uncle is untrue or inherently incredible.
The father’s account to Ms J, author of the Family Report
I accept that, when interviewed by Ms J, the father told her that, after Ms K made the sexual assault allegations against him in late 2020, the police told him he needed to leave the house and so he went to his parents’ home; whilst Ms K withdrew her statement after three or four days, and no charges were laid and he returned home, the Department came the next day and told him to leave.[53] He said the Department spoke to him and the mother separately; after these interviews the mother talked to him about him "signing over his rights to the children''; he said the Department told the mother that, if she allowed him to have contact with the children, they would remove the children from her care;[54] he said he thought the mother had been in a "state of panic" and was in "fear of losing the kids" after being interviewed by the Department and this had motivated her to apply for the domestic violence order. He also said that the lawyer they had been using (jointly) told them that the Department did not have enough evidence for the sexual abuse allegations. [55]
[53] Family Report of Ms J filed 6 June 2022, paragraph 51.
[54] Family Report of Ms J filed 6 June 2022, paragraph 52.
[55] Family Report of Ms J filed 6 June 2022, paragraph 53.
As discussed earlier, I accept the father told Ms J that he had been able to disprove “everything” and that he said he had a statement from his brother and statements from people saying that he had never been alone with his niece.[56] Not only did the father fail to adduce evidence from whomever these persons are, his evidence when cross-examined clearly established that the latter aspect of his assertion to Ms J was false – it was clear, on his own evidence, that there were a number of times during at least the party evening when he was the only adult alone with Ms K and her friend.
[56] Family Report of Ms J filed 6 June 2022, paragraph 60.
The father’s affidavit account
I accept that the father’s evidence included his assertions about Ms K and her allegations about his abusive conduct toward her and that the same included that:
(a)Ms K’s life growing up with her father Mr L had been tough after her mother abandoned her; and
(b)Ms K had always been neglected and consequently had acted out, lied and invented things from a young age for attention; and
(c)the only reasons he could think of for why Ms K had invented the allegations against him that she had was for:
(i)attention; and
(ii)she had told her boyfriend about what he (the father) described as “those made-up allegations” in order to stop her boyfriend from breaking up with her and the boyfriend had then pressured her to go to the police; and
(d)Ms K had struggled with her mental health for a number of years, including having suicidal thoughts and engaging in self-harm; and
(e)after the paternal grandmother discovered, in mid-2022 (that is, several months after she was interviewed by police in late 2020), that Ms K had been admitted to a psychiatric unit and visited her there, she told him that Ms K was not in a good state but had been self-harming and not eating; and
(f)Ms K and her father were now homeless and living with Ms K’s older half-sister.[57]
The father’s evidence, when cross-examined, about the substance of Ms K’s disclosures to police when she was interviewed
[57] Affidavit of the father filed 30 June 2023, paragraphs 70-72.
The father denied ever sexually abusing Ms K. He denied asking her to grab his erect penis when they were sitting at the back of a shed located on the paternal grandparents’ property, although he accepted that, at one stage there was only one shed on that property; he denied asking Ms K to rub his erect penis and he denied that she did that.
When cross-examined, the father agreed that he, the mother and X had lived in a granny flat/shed built at the maternal grandmother’s property; he agreed that Ms K often visited and that there had been times when only he and X were present during these visits; he agreed that Ms K would have visited at times when he was feeding X. He denied that, when holding X and sitting next to Ms K on the bed, he had touched and rubbed Ms K’s legs and breasts and said that he had no recollection of such an event.
During the course of his cross-examination, the father’s evidence included that he had been at the party about which Ms K spoke when interviewed by police; he said, amongst other things, that when Mr L drove Ms K and her friend back to the paternal grandparents’ property, he accompanied them; because the girls were drunk and noisy, they went to the shed first and started to watch television; he sat on the couch and had Ms K on one side of him and her friend on the other side of him; he did not keep drinking alcohol as he had earlier used marijuana; he denied Ms K’s allegation that he had started to rub her leg and upper thigh and he denied putting his finger/thumb into the top of her friend’s shorts; he agreed with Ms K that Mr L later returned to the shed to make sure the girls were okay and said that he (the father) had had to help them to the house because they could not walk straight; he agreed they went into the bathroom to change and said that, when they did this, he had set up a space for them to sleep; he said he then sat on an armchair beside them as he was trying to keep them quiet and prevent them from waking the paternal grandfather up and he was trying to get them to go to sleep; he agreed that Ms K and her friend went to sleep, but denied that he laid next to Ms K – he denied putting his hands down her underpants and putting his finger into her vagina or keeping his finger in her vagina for a while.
An overview of the submissions
Counsel for the Independent Children's Lawyer submitted that the Court would be persuaded, because of the words Ms K used when interviewed by police in late 2020 and the manner in which she provided the information that she did during the interview, that her complaint was credible.
Counsel also submitted that the following matters would persuade of such a conclusion:
(a)Ms K was so nervous she forgot her own mother’s surname; and
(b)she remembered specific details – such as the asserted assault happened on the party night; where she was when it happened; what programme she was watching on television and what she was wearing; and
(c)she was able to provide detailed particulars of the manner in which the assault proceeded; and
(d)she was not hesitant or delayed in responding to questions asked of her by the interviewing police officer; and
(e)her description of the father’s penis was credible; and
(f)she was able to provide an account of how she felt at the time.
Counsel for the Independent Children's Lawyer submitted that, having regard to those matters and the interview itself, the Court would be persuaded that Ms K’s account to police when interviewed was that of a young girl providing a credible account of what had happened to her.
In joining in and supporting the submissions made by Counsel for the Independent Children's Lawyer about the manner in which the Court would approach its assessment of Ms K’s complaint to police, Counsel for the mother submitted that the Court would also place particular weight on the fact that, during her interview, Ms K clearly articulated the father’s sexual abuse or assault of her, that she expressed a genuine fear of him and a genuine concern that he might sexually abuse the children.
In opposing the making of any positive finding that the father had sexually abused Ms K, Counsel for the father submitted that, in circumstances where the father was deprived of the opportunity to test, via cross-examination, the allegations made by Ms K against him in her police interview, the Court would not be persuaded to make a positive finding that he sexually abused Ms K. Counsel refuted the suggestion that the Court would consider the allegations made by Ms K to be credible and noted that the evidence revealed that she had “recanted” (the word Counsel used to describe the fact that Ms K withdrew her statement because she said her family was relocating to live interstate) the same some three days after making them; Counsel also submitted that the Court would not accept the suggestion that Ms K’s “recanting” of the allegations happened as a result of pressure put upon her by the father – it was submitted that there was no evidence to support the contention that the father had influenced Ms K directly or via her father (Mr L) to “recant” the very serious allegations against the father that she had made.
I am not persuaded that, by deciding to withdraw a complaint or asking the police not to proceed further with it, a complainant is necessarily saying to the authorities that the matters they spoke of, when interviewed, did not happen. In this case, the contents of police documents record the police had been advised that Ms K was moving interstate in early 2021, did not want to return for Court or to go through the Court process and was happy that her immediate family and the father’s family had been made aware of his alleged offending.[58] None of these provided reasons persuade that, by telling the police she did not want to proceed further with her complaint, Ms K was conveying to them that she had lied when she told them what she did when interviewed or that she had been somehow mistaken when she alleged that the father had sexually assaulted her in the various ways and on the various occasions that she described. In fact, the contention that Ms K was “happy” that her family had been made aware of the father’s alleged abuse of her seems, to me, to contradict any suggestion that she thought that, by choosing not to proceed with her complaint, she was, in effect, accepting that the father had not acted toward her as she accused him of doing.
[58] Exhibit 30.
In submitting that the Court would not be persuaded of Ms K’s credibility as a complainant, Counsel for the father also emphasised the following as persuading of a lack of such credibility:
(a)the absence of delay in Ms K notifying the police that she did not wish to proceed with her complaint (namely, three days after her interview) – although I note that nothing in the father’s evidence until he was cross-examined suggested that he had spoken with Mr L in the period between when Ms K was interviewed by police and when Mr L advised police that she wanted to withdraw the complaint; and
(b)the delay which accompanied Ms K’s complaint to police, given that a number of years had passed between the events of which she complained (which she asserted had happened when she was eight or nine years of age, when she was 10 years of age and when she was 11 or 12 years of age) and her complaint to police; and
(c)that it was inherently incredible that the father would have acted as was alleged when Ms K was eight or nine years of age, particularly given that the offence was alleged to have happened in the family home, whilst the paternal grandmother and mother were present in the home; and
(d)that, in relation to the abusive behaviour alleged to have happened at the party:
(i)Ms K had admitted that, on the night in question, she (then about 14 or 15 years of age) had consumed alcohol, had taken prescribed medication and that she was affected by the mixture of her prescribed medication and the alcohol; and
(ii)whilst Ms K had initially appeared to be quite definitive in her recounting of what she asserted had happened, when she was asked if she could see the father she said, “kind of; not really” and then later asserted that “I’m pretty sure it was him”.
I am not persuaded that the passage of time between the incidents Ms K described to police when interviewed and her complaint means, of itself, that it is more likely than not that her complaint lacks credibility; I do accept, though, that the passing of time may impact on a person’s capacity to recount accurately events which previously happened; it may also result in a “blurring” between the recounting of an event that actually happened and the recounting of a memory of something that happened. Given the relative paucity of time between the assaults which Ms K told police happened at the party and her late 2020 police interview, the asserted delay seems to me to be of less significance than when considered vis-à-vis her complaints about conduct she alleged happened when she was younger.
I am not persuaded by the submission as to conduct being “inherently incredible” – life experience suggests that even that which seems almost “unbelievably incredibly inherent” has, on occasions, been shown to have actually occurred. Such conclusion does not, of course, mean that there is any positive presumption to be applied when considering whether the required level of satisfaction has been established so as to persuade a court to express itself satisfied, to the requisite standard, of the occurrence of alleged events.
Counsel for the father also submitted that, given the very serious nature of the allegations and the grave consequences to the father if it was positively found that he had sexually abused Ms K, the Court would not, on the evidence before it and having regard to the matters emphasised above, be satisfied to the relevant standard that the father perpetrated the acts of sexual abuse he is alleged to have committed.
Having considered all of the submissions made by Counsel and having reflected significantly upon the evidence before me, I am left with the uncomfortable conclusion that Ms K’s complaint to police was credible.
The alleged abuse of C
The mother alleged that the father has sexually assaulted her daughter, C. The father denied ever having touched C inappropriately at any time.
It is accepted that C has not made any disclosures about being inappropriately touched by the father.
The basis for the mother’s assertion that the father sexually abused C was that when her daughter (who she said had not had a history of vulvovaginitis)[59] was about two or three years of age (that is, in 2015 or 2016), she had complained of a sore vagina; the mother said she noticed it was red and “more open “than normal”[60] and when she asked the father and the maternal grandmother to look at C, they both agreed that her vagina looked “stretched”.[61] The mother’s evidence included that, when she “confronted” the father about this, he told her had had not done anything and blamed C’s biological father for not washing her properly;[62] she also said that, when they took C to the hospital, she was told to take her to the police to follow up but she did not do so because the father had been very insistent that she not go to the police.[63] The father denied this.
[59] Affidavit of the mother filed 4 July 2023, paragraph 324.
[60] Affidavit of the mother filed 4 July 2023, paragraph 323.
[61] Affidavit of the mother filed 4 July 2023, paragraph 325.
[62] Affidavit of the mother filed 4 July 2023, paragraph 326.
[63] Affidavit of the mother filed 4 July 2023, paragraph 327.
The father’s evidence included that, after C returned from a visit at her biological father's house and complained of irritation, they observed redness of her genitals (although he denied saying she looked "stretched"[64]); he said the children had previously had hygiene issues on returning from their biological father’s care (for example, B had returned fungal infections on multiple occasions) and he had phoned his sister for advice; after she suggested taking C to the hospital, they did so; he said police based within the hospital accompanied them during her review and that, in front of them, the doctor concluded that the redness observed was, in fact, a cleanliness issue and that C was just unwashed and irritated on her vagina[65] and the redness and discharge had resulted from poor hygiene and, possibly, C scratching herself with dirty hands; the doctor had no other concerns. The father said that both he and the mother had been satisfied with the doctor’s conclusions, particularly given their previous hygiene issues upon the children returning from spending time with their biological father.
[64] Affidavit of the father filed 18 July 2023, paragraph 266.
[65] Affidavit of the father filed 18 July 2023, paragraph 268.
Reference to the hospital documents establishes that the examining doctor noted that the results of C’s assessment appeared normal and it had been recommended that she do a urine test and that contact be made with police and a forensic paediatrician.
On the evidence before me, I am not persuaded that the father sexually abused C in 2015 or 2016 when she was about two or three years of age.
X and B
The mother accepted that neither B nor X have ever made any disclosures that they have been sexually abused by the father.
The alleged abuse of Y
The mother’s evidence included that she believed the father has sexually abused Y. She said that, when she was bathing Y in mid-2021, Y said “Look Mummy, this is how” and inserted her fingers into her vagina; the mother subsequently contacted the Department.[66] On the mother’s evidence, Y did not say anything at that time to indicate that the father had done what the mother described her to have done.
[66] Affidavit of the mother filed 4 July 2023, paragraph 333.
The mother also said that, while they were driving in the car in early 2022, Y said “Daddy touched my bum and my privates and put his fingers in my privates”.[67] When cross-examined, the mother’s evidence included that Y had just spontaneously made this comment to her. This appeared to be the first time that Y made a comment which involved the father doing something and, at that time, Y had not had any unsupervised contact with him since prior to Christmas 2020.
[67] Affidavit of the mother filed 4 July 2023, paragraph 334.
The mother said that, when she subsequently took Y to the City T Police Station she was referred to U Counselling Service and told that police would interview Y if she made disclosures at U Counselling Service.[68]
[68] Affidavit of the mother filed 4 July 2023, paragraph 335.
The mother’s evidence included that Y has continued to say things about her father – usually when they are by themselves driving in the car; however, as time has passed, Y has also made disclosures in front of other family members and friends.
The maternal grandmother said that, in around mid-2022, Y was sitting on the mother’s lap at the dinner table whilst she and her grandson were standing at the kitchen bench; she said that, out of nowhere, Y stated loudly: “Mummy, Daddy touched my privates and it really hurt'”. The maternal grandmother said she saw the mother give Y a cuddle and reassure her that she was safe now.[69] At the time this comment was made, Y had not had any unsupervised time with the father for about 18 months.
[69] Affidavit of the maternal grandmother filed 3 July 2023, paragraph 14.
The mother said that, in mid-2022, she took Y (then nearly four years of age) to the City T Police Station where, after she spoke to a male officer Y was interviewed by police. I accept that Y did not make any disclosures that she had been sexually abused by her father during this interview.[70]
[70] Exhibit 2.
A friend, who had met the mother through Mr E, said that, when he and his partner visited them in early 2023, Y made a number of comments that caused concern: when she showed him a rash she had between her thighs from her water jacket, she motioned to her genital area and said: “That’s where bad Daddy touched me”. The adults changed the subject as they did not want to press the issue.
The mother said that, in early 2023, while she was swimming in the pool, Y started talking about the father; the mother recorded this comment; she said she knew she should not have recorded Y but had done so because she felt like everyone thought she was a psycho and making it all up.[71] The recording is in evidence before me.[72]
[71] Affidavit of the mother filed 4 July 2023, paragraph 342.
[72] Exhibit 3.
When cross-examined, the mother did not accept the suggestion that the recording includes Y saying “Old Dad just touched my privates”. However, on viewing it, it seemed that Y, wrapped in a towel, looked to the camera and said what sounded like “the old dad just [?] touched my privates”, following which the mother asked, “Did he?”, to which Y responded “Yes”. When cross-examined about this conversation, the mother’s evidence included that she had heard Y make a comment and then asked her, in essence, to repeat it so that she could record it.
The mother’s evidence included that, after she provided the police with a copy of the recording taken in early 2023, they wanted to interview Y[73] but the child refused to speak with the officer who was available that day so they had to return on another day to speak to a different officer.[74] She said that, when her sister (Ms N) and the maternal grandmother took Y to City T for an interview with police in early 2023, Y told a police officer “my old daddy touched my privates” but was unable to show where or how.
[73] Affidavit of the mother filed 4 July 2023, paragraph 343.
[74] Affidavit of the mother filed 4 July 2023, paragraph 344.
The mother’s evidence included that, she had been told to have Y continue with therapy and that the police would do repeated interviews until Y was able to go into further details;[75] she also said she had been told that Y had told the police that X had also been touched – but he had never made any disclosures to her to that effect.[76]
[75] Affidavit of the mother filed 4 July 2023, paragraph 345.
[76] Affidavit of the mother filed 4 July 2023, paragraph 346.
Mr E said that, in early 2023 Y said “my old Daddy touched my privates with his fingers”.[77]
[77] Affidavit of Mr E filed 3 July 2023, paragraph 9.
The maternal grandmother said that, in mid-2023, she was driving Y home from her counselling at U Counselling Service; Y said to her “Nanny nobody can touch my privates, can they Nanny?”; the maternal grandmother said ''no, your privates are for you only"; Y paused and then replied "Daddy is not allowed to touch me in my privates anymore, that's right, isn't it Nanny?" The maternal grandmother agreed and reassured Y she was safe.
The maternal grandmother said that, at the end of mid-2023, she was driving Y home from U Counselling Service; Y was telling her about her session with her therapist and that they had been talking about secrets and some secrets being good and some being bad secrets and said: “I have a very bad secret, don't I Nanny?”[78]
[78] Affidavit of the maternal grandmother filed 3 July 2023, paragraph 20.
The father’s evidence included that:
(a)despite the mother saying she had reported Y’s disclosures to police in early 2022, there are no police records to confirm this was the case; and
(b)the Department had noted having spoken to police and that there was no information about a report being made in early 2022; and
(c)as at mid-2022, the Department’s position had been that it had received information which stated that the police service had no recorded information in relation to him sexually abusing Y, although it had also noted that the maternal grandmother was adamant that the mother had reported the disclosure to the police; and
(d)he had first heard about allegations relating to Y when the mother’s lawyer sent an email to his solicitor and the other parties on 19 July 2022, the day before a mention of these proceedings; and
(e)when he went to the Town P police station in mid-2022 and asked if he could check if he was being investigated about any allegations regarding sexual abuse towards Y and assault of the mother, he was told that a search of the records revealed no record of him being investigated about any of these incidents and that there was no open police investigations into him or his alleged conduct; and
(f)the alleged disclosures made by Y about him are untrue and he had never done anything of a sexual or non-sexual nature to hurt Y; and
(g)he did not understand when the alleged acts could have occurred and how Y could have said such horrific things and noted that she did not appear to have made any disclosures to police; and
(h)he had recently been advised by the Department that it was closing its intervention and did not intend to open an investigation into Y’s allegations; and
(i)he had not been spoken to by police or questioned in relation to any of the allegations raised by the mother, had not been charged with any offence of sexual abuse or assault/stalking and there were no pending investigations into him being conducted by either the police or the Department.[79]
[79] Affidavit of the father filed 30 June 2023, paragraphs 95 & 96.
Conclusions about the allegations that the father sexually abused Y and/or C
Counsel for the Independent Children's Lawyer submitted that the Court may find it difficult to make factual findings in relation to the allegation in relation to C; it was submitted that resolution of the differences in the parents’ accounts of what occurred at the hospital (with the mother alleging that the father pressured her not to make a complaint to police, whilst the father denied exerting such pressure) may be able to be resolved by a comparative assessment of the parents’ credibility generally. In a not dissimilar fashion, Counsel for the mother noted during his submissions that the mother did not quibble with there being significant challenges to the Court making a positive finding that the father had sexually abused Y and/or C.
Counsel for the father submitted, in essence, that:
(a)there was a very high standard to be met for the Court to make positive findings that the father sexually abused Y and/or C; and
(b)given the very serious nature of the allegations and the gravity of the consequences flowing from making a finding that the father sexually abused Y and/or C, the Court would need substantial proof of the matters alleged in order to be satisfied, to the requisite standard, that they occurred; and
(c)insofar as the allegations involving the child Y are concerned:
(i)the Court would not accept the mother’s allegations given that the same are based on “hearsay evidence” given by her and members of her family, to which very little weight should be given; and
(ii)the asserted disclosures began in about mid-2022, at which time Y was about four years of age and the father had not been living with the mother and children for about two years and given that this was when the father last spent unsupervised time with her, allegedly related back to when the child was under two years of age; and
(iii)prior to mid-2022, there had been no allegations of sexual abuse by the father or observed occasions of what was descried as “sexualized behaviour” by Y; and
(iv)given that the disclosures were made “out of the blue” and absent any prior discussion about the father before they were made, limited weight could safely be placed on the same given Y’s age at the time of the reported comments; and
(v)the Court would be persuaded that those who gave evidence about Y’s reported comments to them simply invented the same in order to support the mother’s case or for unknown reasons; and
(vi)despite being interviewed twice by police, Y made no disclosures at those times about any abuse allegedly perpetrated against her by the father; and
(vii)the comments reported to have been made by Y happened, on the mother’s case, only after she had commenced to live with a new male partner in late 2022 (in particular, the comments reported to have been made in early 2023); and
(viii)the presence of the mother’s partner in a shared residence since late 2022 meant that, in interpreting Y’s reported use of the word “Daddy”, the Court was being asked to conclude that it was a deliberate reference by the child to the father – and not to the mother’s partner; and
(ix)the fact that there had been multiple discussions over the years in the family home between family members about the allegations first made by Ms K, the Departmental involvement with the family and the current proceedings, meant it was more likely than not that the children had been, at the very least inadvertently, exposed to the same and were, consequently, aware of the nature of the allegations that had been made against the father and the content of these proceedings, such that the Court could not safely be persuaded that the reported disclosures were in the nature of “true” and accurate accounts of events that had actually happened as opposed to recitations of things which had been overheard; and
(x)given the above, the Court would not be persuaded to the requisite standard that the father has sexually abused Y.
(d)insofar as the allegations involving the child C are concerned:
(i)the Court did not have the benefit of evidence from her biological father; and
(ii)the content of relatively contemporaneous medical notes included that her biological father had previously told the mother that C had been injured in her genital area when she fell off her bike; and
(iii)C had not made any disclosure to her mother, or to Departmental officers when interviewed, that she was a victim of sexual abuse perpetrated by the father; and
(e)when the Department undertook its investigations, none of the mother’s four children made any allegations of harm to the Departmental officer and, on that person’s assessment, none displayed any outward indicators of abuse; and
(f)when interviewed by Ms J, none of the mother’s four children displayed any behaviours which might be regarded as indica of sexual abuse.
On balance, I think it much more likely than not that the mother’s capacity to fulfill the myriad of duties, tasks and obligations associated with being the children’s primary parent would be significantly deleteriously impacted by any requirement for her to support the children to have an ongoing relationship with the father and actively facilitate them spending time or communicating with him.
The father: his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood[118]
[118] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
Marijuana use
I accept that, when he was interviewed by Ms J, the father told her that he began smoking cannabis when he was around 16 or 17 years of age. He said he had a prescription for his cannabis use, previously smoked less than what was currently prescribed to him, had previously been a daily smoker of marijuana and used it as a relaxant and to help him sleep. [119]
[119] Family Report of Ms J filed 6 June 2022, paragraph 45.
I accept the mother’s evidence that, the father frequently smoked marijuana in the shed away from the children and was often under the influence of that drug around them; given the duration of his use and the extent of the same, I accept her evidence to the effect that he would be very aggressive if he did not have marijuana. I think it much more likely than not that the father has driven the children in a car whilst under the influence of marijuana – especially given that his evidence when cross-examined included that he had consumed two cones of marijuana before attending court that day.
Whilst the father’s evidence included that he had been taking medicinal marijuana for his anxiety since mid-2021, I was left with significant concerns about the prescribed dose and the manner by which the father said he was consuming the same, which included smoking. Whilst others may disagree, such concerns were not adequately addressed by the contents of correspondence written by the father’s General Practitioner, which advised, amongst other things, that the father was prescribed large doses of the different CBD and THC preparations.
I accept the submissions made by Counsel for the Independent Children's Lawyer to the effect that the father has a long history of cannabis abuse and that there is no evidence to suggest that he has been trying to reduce the amount he uses – a matter of particular concern given that there is no evidence from any appropriately qualified expert about the impact of the very high level of usage, revealed in the testing, on his functioning.
Threats to suicide
I accept the mother’s evidence (and that given by Ms O) about an event in 2019 during which the father, when in the shed on the property, picked up a weapon, put it to his throat and told her that he was going to kill himself. I accept that, when she told him to “stop”, he told her that, if she did not let him kill himself, he would kill her and then himself. Whilst I accept that the children were not in the shed at the time of this conversation, it seems to me to be quite unlikely that they could have failed to appreciate the subsequent attendance by police and members of the Queensland Ambulance Service, who took the father to hospital, where he was described as being aggressive and having difficulty managing his emotions.
I accept that, according to the records from the Queensland Ambulance Service and the S Hospital for mid-2020, the father experienced intrusive self-harm thoughts to himself and others but denied having a specific plan to harm himself or others – he did not disclose any specifics about his intrusive self-harm thoughts to the paramedics and, when admitted to hospital, confirmed that he had had thoughts of self-harm for a few weeks (although the mother had contended it was longer), after which he was placed in a consultation room (with the mother) due to staff concerns about his potential aggression in the crowded waiting room.
I accept that, in mid-2021, the father sent family members a message by which he threatened to commit suicide.[120] I accept that after this, the mother travelled 16 hours from her worksite to get home and that, after this event, members of the paternal family sought to accord blame for it to her and also pressured her to facilitate a supervised visit between the father and the children. I also accept that the hospital records of this admission record that the father had engaged in earlier self-harm/threat of self-harm in mid-2021 (described as a “similar incident”).[121]
[120] Affidavit of Ms O filed 3 July 2023, paragraph 71.
[121] Exhibits 23 and 24.
Mental health issues
The suicide threats summarised above make it clear that the father has longstanding mental health issues. Whilst he has previously said that he has engaged with treating therapists, the state of the evidence does not persuade that he has successfully addressed either his significant mental health issues or his anger management deficiencies. His evidence when cross-examined included, in essence, that he had been refused enrolment in a particular anger management course for men (the Men’s Behaviour Change programme) because he would not admit, in the manner required by the course, that he had previously been violent or aggressive. He also said, amongst other things, that whilst he had previously been prescribed anti-depressant medication and had taken this for a short time (two or three months), he stopped taking it because he found that prescription cannabis was more effective.
I note that the father also told Ms J that he had "two or three sessions" with a psychologist after mid-2021 and that this person had reportedly helped him to understand the hostile environment he had been living in with the mother and how she (the mother) was isolating, controlling and manipulating him. Rather than suggesting that this interaction assisted the father to gain insight into his own behaviour, his recounting to Ms J about what he took from it suggested that it did little more than buttress him in his own views.
In the absence of up-to-date expert evidence about the father’s current mental health functioning and to corroborate his assertions that, during his therapeutic interactions, he has been addressing his abusive conduct toward the mother and his associated failure to manage his anger appropriately, I accept completely the submission made by Counsel for the Independent Children's Lawyer to the effect that the father needs to do a lot more to address both of these issues and also to establish that he has, in fact, addressed them in a positive manner – especially given that his view clearly remained that he had not previously behaved abusively toward the mother.
Attitude toward the mother and her role in the children’s lives
I accept that, when interviewed by Ms J, the father said he had concerns about the mother's mental health (“mental health issues run in her family” and that she had paranoia because she had been worried about people being in their yard); he spoke of believing that her older brother was "schizophrenic, has multiple personalities and is bipolar"; he said he believed her sister (Ms N) has autism, although he also said he did not know if there was a diagnosis and, when asked how he made this assessment, said “I just know”.
None of the father’s contentions about the members of the maternal family were taken up with them during their cross-examination by Counsel for the father – perhaps this is explicable because there is no expert evidence to support any of these.
I also note that, despite the concerns noted above, the father also told Ms J that the mother was a "good mum" – although he went on to assert, in essence, that she had defrauded a fundraising account established by a workmate to seek assistance for Y’s medical costs. He also told Ms J that the maternal uncle had raped the mother when they were younger[122] – a contention specifically denied by the mother when she spoke with Ms J and one that was not advanced during Counsel for the father’s cross-examination of either the mother or her brother. Whilst the latter contention was not taken up with the father when he was cross-examined, I was left with the very real feeling that it was possible that, in making it to Ms J, the father was either trying to show how easily such a serious allegation could be made or to, in a sense, “balance” the consideration as between himself and the mother.
[122] Family Report of Ms J filed 6 June 2022, paragraph 65.
I also note, as mentioned elsewhere in these Reasons, that when asked by Ms J about the mother’s allegations that she had been assaulted in late 2021, the father’s first response was to say "I call bullshit" – hardly the basis for a trusting, future co-parenting relationship.
The likely effect on the children of any changes in their circumstances, including if the orders sought by their parents are made[123]
[123] Family Law Act 1975 (Cth) ss 60CC(3)(d).
I accept that, if the mother's proposal for the children to have no time or communication with the father is accepted, the children will likely feel safe and continue to have the stability accorded them by remaining in their mother’s primary care. Obviously, they would not have the opportunity to develop and maintain a meaningful relationship with their father or members of the extended paternal family.
I accept that, if orders are made for the children to spend supervised time with the father (with a prospect of this changing over time to encompass unsupervised time), it is highly likely that the parenting they receive from their mother will be diminished as a consequence of what I accept will be her significant anxiety at being required to facilitate such interactions. Whilst such a regime may afford the children the opportunity to resume – over time – a relationship of sorts with the father (and members of the extended paternal family), the possibility that this will be further impeded by the children’s own expressed fears and concerns about the father cannot, at this time, be ignored and should not, in my view, be minimised.
Ms J’s evidence when cross-examined
I accept that, prior to giving her evidence at the trial, Ms J was provided with material by the Independent Children's Lawyer.[124]
[124] Exhibit 32.
I accept that none of this material caused her to change the recommendations she expressed in her report.[125] Whilst she said she had been concerned about the disclosures she read of Y as having made, this did not really change her recommendations – because they included that the children only spend time with the father if the Court was persuaded that they were safe.
WHAT PARENTING ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
[125] At paragraphs 120 to 122 inclusive.
Allocation of parental responsibility
Given the findings I have made about the father’s violence toward the mother, the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply.[126] Consequently, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’[127] (albeit subject always to the children’s best interests being the paramount consideration).[128]
[126] Family Law Act 1975 (Cth) ss 61DA and 61DA(2).
[127] Cox & Pedrana (2013) FLC 93-537 at [19].
[128] Family Law Act 1975 (Cth) ss 60CA and s 65AA.
If there is an order that the children’s parents are to share parental responsibility for them, and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by their parents[129] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[130] I am not remotely persuaded that these parents have the capacity or the desire to make decisions about the children jointly. They have not communicated since prior to June 2021; I accept Ms J’s assessment of the co-parenting relationship between them as “non-existent”.[131]
[129] Family Law Act 1975 (Cth) s 65DAC(2).
[130] Family Law Act 1975 (Cth) s 65DAC(3).
[131] Family Report of Ms J filed 6 June 2022, paragraph 67.
I also accept the submission made by Counsel for the Independent Children's Lawyer to the effect that there is a complete absence of trust between these parents and that there is no established foundation of communication and/or trust which would render it likely that an order according them equal shared parental responsibility for the major long-term issues relating to the children could be effectively implemented. As noted earlier, during the course of her final submissions on behalf of the father, Counsel who appeared for him placed on the record that the father did not seek an order for equal shared parental responsibility and was content for the same to be accorded to the mother; it was also submitted that the father accepted that the parents were not in a position where they could successfully co-parent.
Given all of the above, I consider an order for equal shared parental responsibility is not an order which is in the children’s best interests – rather, their best interests are met by according the mother sole parental responsibility for the major long-term issues relating to them. Whilst such an order is often accompanied by an order requiring the parent possessed of sole parental responsibility to consult with the other parent in order to obtain that parent’s views about a major long-term issue to be decided, I am completely unpersuaded in this case that such an order would be in the children’s best interests because I am easily satisfied that it would significantly increase the mother’s anxiety in a way that would be likely to impact deleteriously upon them.
Time orders
I accept the evidence given by Ms J unless indicated.
In particular, I accept her opinions that:
(a)if what the mother said about the father’s behaviour was true, the children would be at considerable risk if they were to be in his care;[132] and
(b)until the father demonstrated to the Court (and provided it with the necessary evidence) that he does not pose a risk to the safety of the children, the mother or to himself, she was reluctant to recommend any contact between him and the children.
[132] Family Report of Ms J filed 6 June 2022, paragraph 98.
In addition to those submissions which have already been the subject of discussion in these Reasons, Counsel for the Independent Children's Lawyer also submitted that it was clear from the father’s evidence that, given the unknown location of each of the parents, there were likely significant practical difficulties associated with the father’s proposal for the children’s resumption of spending time with him, including: the impost of travel on the children, the absence of financial means to afford the costs associated with supervised time and the like.
Counsel for the mother submitted, in essence, that regardless of whether the Court made positive findings in relation to the allegations that the father:
(a)sexually assaulted Ms K and/or Y and C; and/or
(b)was responsible for the physical assaults perpetrated against the mother in late 2021; and/or
(c)behaved in such a manner toward the mother as constituted coercive and controlling family violence,
it would still be persuaded that the father represents an unacceptable risk of harm to the children. It was submitted that such risk is impermissibly high and that there is no practical way it can be managed and/or ameliorated such that it could be concluded to be in the children’s best interests to have any time of any sort or in any manner with the father. Counsel for the mother submitted that the Court would be persuaded that, until the father had taken steps to address his addictive behaviours and poor mental health, the children remained at an unacceptable risk of suffering harm if they were to spend any time with him.
Counsel for the mother also submitted that the Court should not fail to note that, despite being the victim of the father’s abusive behaviour, the mother initially wanted the children to have some form of contact with him and that it was only with the benefit of hindsight – and, I suspect, the impact of the Department’s actions in removing all of her children from her care – that the mother’s position became that the children’s best interests will not be served by having any interaction with their father at all. It was submitted that requiring the mother to facilitate and support the children to spend time with the father would so adversely impact her parenting capacity that the children’s safety and wellbeing would likely be adversely impacted and that the Court would not be persuaded that this would be in the children’s best interests.
Counsel for the father submitted that the Court would not be persuaded, particularly given the children’s ages, that it is in their best interests for there to be an order that they have no contact and communication with their father. In advocating for orders which would permit the children to be reintroduced to the father and to spend time with him, initially under supervision, Counsel emphasised that:
(a)since the protection order was made, there had been no breaches of the same alleged or found against the father – albeit that, until a witness called by the mother misspoke, the father had not known where the mother and the children were living since about late 2021; and
(b)the mother’s evidence included that those who assaulted her at her home in late 2021 were unknown to her and, therefore, the father was not the person who assaulted her so viciously; and
(c)whilst it had been submitted on behalf of the Independent Children's Lawyer and the mother that the father had displayed no insight whatsoever into his own behaviours, he:
(i)accepted on multiple occasions that he does get aggressive and that he had yelled and shouted at the mother; and
(ii)accepted on multiple occasions that he has a lot more work to do in terms of addressing his admitted aggression – although the absence of evidence from his treating psychologist makes it impossible to assess the true extent of what is required; and
(iii)had demonstrated insight by:
(A)advancing that, if his time with the children in the future became unsupervised, he could collect the children at an agreed location situated away from the mother’s residence; and
(B)accepting that it was appropriate for the mother to have sole parental responsibility for the major long-term issues relating to the children; and
(d)even accepting the mother’s evidence that she was fearful and had concerns about the children spending time or communicating with the father, she had said, when cross-examined, that, if the Court ordered it, she would be prepared to facilitate the children spending time with him; and
(e)despite submissions to the contrary, the father did accept that he had had significant mental health issues: whilst it was also accepted that he needed to be much more proactive in engaging in psychological treatment, the father had said that he had been seeing a counsellor once or twice each month consistently for the past year – albeit that the Court did not have the benefit of any evidence from this therapist; and
(f)whilst it was accepted that the father needed to do more in terms of whether or not he sought medication other than medically prescribed marijuana to treat his mental health issues, the Court would note the nature of his current use of marijuana and that, even on the mother’s case, he had used marijuana consistently whilst he was the primary carer for the children and she was working away from home; and
(g)despite what had been said about his behaviours by the mother and those who gave evidence in her case, the Court would be persuaded by his presentation, when cross-examined, that he was capable of managing his emotional responses; and
(h)the father’s evidence that he was willing to engage in psychological or psychiatric treatment and to take medication other than medically-prescribed marijuana to treat his mental health issues if doing such things would allow him to spend time with the children; and
(i)the father’s response that “it’s a start” when asked by the Court, in essence, if seeing the children would fix all of his problems, should be regarded as an acknowledgment that not spending time with the children was not the only problem in his life; and
(j)the children should not be denied the opportunity to spend time with the father simply because he suffers from mental health issues and/or is relatively impecunious; and
(k)whilst it was accepted that there are serious risk factors in this case, adequate protective measures could be incorporated within the orders to be made so as to ameliorate such risks to a level where they were acceptable – such measures included that:
(i)supervision be imposed over the children’s time with the father, at least initially until, after what was described as “some adequate period”, the time changed to occurring during a few unsupervised hours each weekend, which could then eventually increase to weekend time after “some extended period”; and
(ii)there would be no increase in the children’s time with the father unless he could demonstrate positive interactions with them during their supervised time together and could demonstrate that he had engaged with mental health services and received appropriate treatment.
Despite the submissions made by Counsel for the father and given that I have accepted the mother’s accounts of the father’s conduct, I am persuaded that the children would be at an unacceptable risk of harm if they were to spend unsupervised time with the father. Whilst I accept that the risks posed by the father to the children could – at least theoretically – be addressed by him engaging in therapeutic counselling aimed at educating him about the risks and impacts of domestic violence on children's safety and wellbeing and designed to assist him to redress his previous patterns of abusive behaviour (which, I accept, have significant elements of control and intimidation), the reality is that he has not done anything meaningful to address these issues – despite Ms J’s recommendations about the same having been made well before the trial began.
On the evidence before me, I am not persuaded that the father can meet the children’s need for a stable and emotionally available parent and attentive and responsive parenting – his conduct to date has been, I consider, emotionally and physically abusive of the mother and, indirectly, of the children; there is nothing in the evidence to persuade that such conduct is likely to be different in the future.
I consider that orders which required the mother to bring the children into contact with the father would result in them being emotionally destabilised, whether as a direct result of such interactions or consequent upon the mother’s inevitable anxiety. I am not persuaded that such an outcome is something that is in the children’s best interests, even taking into account their ages and the potential long-term consequences for them of no longer being able to develop meaningful relationships with their father. Given the impact on the mother’s parenting of being required to facilitate even supervised time between the father and the children, I am not persuaded that the same – or any communication – is now in their best interests.
For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, on the evidence before me, are orders which are now in the children’s best interests and proper.
I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 24 May 2024
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