Daldron and Daldron

[2016] FamCA 950

FAMILY COURT OF AUSTRALIA

DALDRON & DALDRON [2016] FamCA 950

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests – Where the proceedings were heard in two tranches – Where there are three children aged 16, 13 and 10 – Where the mother made a sexual abuse allegation against the father in respect of the youngest child – Where since that time the children have spent no time with the father – Where the mother sought orders that the children live with her and that she have sole parental responsibility for them – Where the father sought orders that the youngest child live with him and that he have sole parental responsibility in respect of her – Where the Independent Child Lawyer sought orders that the mother have sole parental responsibility for the children, that they live with her, and that the youngest child spend supervised time once per month with the father – Where the parents each made complaints in respect of family violence against the other – Where there was some level of family violence –Where the mother says she no longer holds the belief that the child was sexually abused by the father but has not conveyed that to the children – Where there is no basis to the allegations of sexual abuse by the father against the child – Where the mother has engaged in some level of emotional abuse towards the children – Order made that the mother have sole parental responsibility for the children and that the children live with her – Order made that until the youngest child is 14 years of age she spend supervised time with the father once per month and that the two older children accompany her in accordance with their wishes.

Family Law Act 1975 (Cth) – s 4AB, s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA, s 65AA, s 65DAA

Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Daldron

RESPONDENT: Mr Daldron

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: PAC 2876 of 2011

DATE DELIVERED: 9 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta and Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 3, 4 & 5 November 2014 (Parramatta) and 14, 15 and 16 June 2016 (Sydney)

REPRESENTATION

FOR THE APPLICANT: Mr Weaver of counsel (on 3, 4 & 5 November 2014) and Ms Daldron in person (on 14, 15 & 16 June 2016)

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers (on 3, 4 & 5 November 2014 only)

COUNSEL FOR THE RESPONDENT: Mr Campton, SC (on 3, 4 & 5 November 2014) and Ms Spain of counsel (on 14, 15 & 16 June 2016)

SOLICITOR FOR THE RESPONDENT: Caldwell Martin Cox

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea, solicitor advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales Sydney Central Family Law

Orders

1. That the following parenting orders are made in relation to the children E born on … 2000, B born on … 2003 and T born on … 2006.

2. That all previous parenting orders are discharged.

Parental Responsibility

1. That the mother have sole parental responsibility for the children.

Live With

1. That the children live with the mother.

Spend time with

1. That until T attains the age of 14 years, she is to spend time with her father on the last Sunday of each calendar month on the following basis:

   5.1      The time is to be supervised by F Group;

   5.2      On the first occasion, the period of time will be one hour;

   5.3      On the second and third occasions, the period of time will be 2 hours;

   5.4      Thereafter, the period of time will be 4 hours.

   5.5On the first three occasions the time is to be spent away from the father’s home but thereafter the time may be spent at the father’s home.

2. The Court NOTES that the supervision is not required because of any finding that T would be at an unacceptable risk of harm in the father’s care, but rather the purpose of the supervision is to support T and the father in re-establishing their relationship and to facilitate the interaction between them.

3. That within 7 days of the date of these orders, the mother and father shall each contact F Group (telephone number …) and do all acts and things necessary to complete all intake procedures to enable supervised time to commence.

4. That the mother and father each request and authorise F Group:

   8.1To provide to the father (only) a copy of all written reports prepared in relation to supervised time between T and the father;

   8.2To notify the mother in writing in the event that any of the following conduct is observed during supervised time:

   8.2.1If the father behaves in an aggressive, abusive, threatening or intimidating manner;

   8.2.2If the father denigrates the mother, the children, the mother’s partner or any member of the mother’s family;

   8.2.3If the father consumes alcohol or appears to be affected by alcohol;

   8.2.4If the father questions T in relation to her wishes regarding her living arrangements;

   8.2.5If the father initiates discussion with T regarding these Court proceedings or any of the allegations raised in these proceedings.

5. That the father provide a sealed copy of these orders to F Group prior to the commencement of supervised time.

6. That the costs associated with the supervised time be paid by the parents in equal shares.

Changeover

1. That time spent between T and her father is to commence at a time and place to be nominated by F Group and the mother is to deliver T to the place at commencement of the time and collect her from the same place at conclusion.

Therapy

1. That the father continue to attend upon Dr C for the purposes of therapy to support and assist him in relation to the re-establishment of his relationship with T.

2. That the father provide a copy of all reports prepared by F Group to Dr C as soon as practicable after receipt by him.

3. That the father attend sessions with Dr C at such frequency, and until such time, as recommended by her.

4. That the father have leave to provide to Dr C a copy of Dr D’s report dated 5 November 2015 and a sealed copy of these orders and reasons for judgment.

Cards, letters and gifts

1. That the father shall be at liberty to send the children cards, letters and gifts and the mother shall do all things necessary to ensure that such cards, letters and gifts are provided to the children unopened.

E and B

1. That E and B may accompany T to spend time with their father in accordance with order 5 if they wish to do so.

School

1. That the father shall be entitled to contact the children’s school(s) and request information regarding the children’s schooling, including but not limited to copies of school reports, school photograph order forms and information regarding any change in school (including the details of the new school).

Courtesy

1. That each of the parents shall keep the other informed of their current residential address and contact telephone number(s) and shall notify the other parent within 72 hours of any change.

Health

1. That the mother shall notify the father as soon as practicable in the event that any of the children suffers a major illness or injury or is hospitalised.

Restraints

1. That the father is restrained from consuming any alcohol at any time when T is spending time with him and for the period 12 hours prior thereto.

2. That the father is restrained from coming within 500 metres of the children’s home or schools and from approaching the mother or the children other than in accordance with these orders.

3. That both parents are restrained from denigrating the other, or any spouse of the other, to or within the hearing of the children.

Alleged contravention

1. That if either parent files a contravention application such application is to be listed before Johnston J by arrangement with his Associate for directions and allocation to another judge for expeditious hearing.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2876 of 2011

Ms Daldron

Applicant

And

Mr Daldron

Respondent

REASONS FOR JUDGMENT

1. These are final parenting proceedings in relation to three children E born in 2000, B born in 2003 and T born in 2006.  The children’s parents are Ms Daldron and Mr Daldron.  For convenience I shall refer to them as “the mother” and “the father”. 

2. The parties commenced cohabiting in 1992 and married in 1998.  They separated in December 2010, when the mother left the former matrimonial home.  Initially the children lived with their father at that home.

3. From approximately April 2011 the children lived in a week about arrangement with each of the parents.

4. In May 2013 T said something to E which apparently caused the mother to have a belief that the child had been sexually abused by her father.  The mother then stopped the previous shared time arrangement and she has had the sole full-time care of the children since that time.  The father has not spent any time with the children or communicated with them since that time. 

5. These proceedings were listed for hearing at Parramatta for four days from 3 to 6 November 2014.  The mother was seeking orders which in effect would have preserved a continuation of the parenting arrangement which she had put in place at that time.  This was that the children live with her and spend no time with their father.  The mother also sought an order that she have the sole parental responsibility for them.  On the other hand the father was seeking a restoration of the shared time arrangement. 

6. The mother presented her case over 3 and 4 November 2014.  On 5 November 2014 the parents agreed to adjourn the remainder of the hearing to enable them and the children to undertake family therapy with Dr C for the purpose of attempting to re-establish a relationship between the children and their father.  Orders were made on that occasion to provide for this and also to appoint a single expert to prepare a report in relation to relevant matters which were specified in the orders.  Dr D, psychiatrist, was appointed in that capacity. 

7. In early 2015 the family commenced therapy with Dr C.  The mother and the three children attended three appointments.  The father attended five appointments.  Dr C subsequently discontinued the therapy.  Suffice it to say that there appears to have been no change in the attitudes on the part of the mother and the three children towards the father.  The children informed Dr D that they had a “horrible attitude” to the therapy.  By late 2015 it became clear to me that in the best interests of these children the hearing ought to be resumed and I set three further days for the hearing to resume on 14 June 2016.

Applications

1. Upon resumption of the hearing Ms Shea for the Independent Children’s Lawyer (“ICL”) tendered a minute of orders proposed by the ICL.  This was to the following effect:-

   ·That all previous parenting orders in relation to the children be discharged;

   ·That the children live with their mother;

   ·That the mother have sole parental responsibility for the children;

   ·That the father shall be at liberty to send the children cards, letters and gifts and the mother shall do all things necessary to ensure that such cards, letters and gifts are provided to the children unopened;

   ·That the father shall be entitled to contact the children’s school(s) and request information regarding the children’s schooling including but not limited to copies of school reports, school photograph order forms, information regarding any change in school (including the details of the new school);

   ·That each parent keep the other informed of their current residential address and notify the other parent within 72 hours of any change and that the mother notify the father as soon as practicable in the event that any of the children suffers a major illness or injury or is hospitalised.

2. The mother, who was self-represented at the resumed hearing, indicated that she agreed with each of the orders proposed by the ICL but in addition sought two further orders as follows:

   ·That the father be restrained from denigrating the children or the mother or the mother’s partner and their extended family in public;

   ·That the father be restrained from coming within 2 kilometres of the residence of the children and their mother and that he be restrained from approaching the mother or the children in public.

3. On the other hand the father seeks orders to the following effect:

   ·That the child T live with him and that he have sole parental responsibility for her;

   ·That there be no time spent, or communication, between the child and her mother for a period of six months;

   ·That after the said six month period the child spend time with her mother each alternate weekend and half school holidays together with reasonable telephone and other communication.

   ·(The father also indicated that he would submit to an order that he not drink any alcohol at any time when the child was in his care.)

4. However after cross-examining Dr D, the ICL indicated that they had decided to change their application and submitted a different Minute of Proposed orders which was as follows:

   1.That all previous parenting orders in relation to the children [E], born on … 2000; [B], born on … 2003 and [T] , born on … 2006, be discharged.

   2.That the children live with the mother.

   3.That the mother have sole parental responsibility for the children.

   4.That until T attains the age of 14 years, she is to spend time with her father on the last Sunday of each calendar month on the following basis:

   4.1     The time is to be supervised by [F Group];

   4.2     On the first occasion, the period of time will be one hour;

   4.3On the second and third occasions, the period of time will be 2 hours;

   4.4     Thereafter, the period of time will be 4 hours.

   5.The Court NOTES that the supervision is not required because of any finding that [T] would be at an unacceptable risk of harm in the father’s care, but rather the purpose of the supervision is to support [T] and the father in re-establishing their relationship and to facilitate the interaction between them.

   6.That within 7 days of the date of these orders, the mother and father shall each contact [F Group] (ph …) and do all acts and things necessary to complete all intake procedures to enable supervised time to commence.

   7.That the mother and father each request and authorise [F Group]:

   7.1To provide to the father (only) a copy of all written reports prepared in relation to supervised time between [T] and the father;

   7.2To notify the mother in writing in the event that any of the following conduct is observed during supervised time:

   7.2.1If the father behaves in an aggressive, abusive, threatening or intimidating manner;

   7.2.2If the father denigrates the mother, the children, the mother’s partner or any member of the mother’s family;

   7.2.3If the father consumes alcohol or appears to be affected by alcohol;

   7.2.4If the father questions [T] in relation to her wishes regarding her living arrangements;

   7.2.5If the father initiates discussion with [T] regarding these Court proceedings or any of the allegations raised in these proceedings.

   8.That the father provide a sealed copy of these orders to [F Group] prior to the commencement of supervised time.

   9.That the father bear the costs associated with the supervised time.

   10.That the father continue to attend upon [Dr C] for the purposes of therapy to support and assist him in relation to the re-establishment of his relationship with T.

   11.That the father provide a copy of all reports prepared by [F Group] to [Dr C] as soon as practicable after receipt by him.

   12.That the father attend sessions with [Dr C] at such frequency, and until such time, as recommended by her.

   13.That the father have leave to provide [Dr C] a copy of [Dr D’s] report dated 5 November 2015 and a sealed copy of these orders and reasons for judgment.

   14.The father shall be at liberty to send the children cards, letters and gifts and the mother shall do all things necessary to ensure that such cards, letters and gifts are provided to the children unopened.

   15.That [B] and [E] may accompany [T] to spend time with their father in accordance with order 5 if they wish to do so.

   16.That the father shall be entitled to contact the children’s school(s) and request information regarding the children’s schooling, including but not limited to copies of school reports, school photograph order forms and information regarding any change in school (including the details of the new school).

   17.That each of the parents shall keep the other informed of their current residential address and contact telephone number(s) and shall notify the other parent within 72 hours of any change.

   18.That the mother shall notify the father as soon as practicable in the event that any of the children suffers a major illness or injury or is hospitalised.

Issues

1. The agreed issues for determination by the Court and my findings based on the reasons below are as follows (although the mother was the moving party in respect of issues 1 – 7):

   1.Whether the father has perpetrated family violence against the mother and the children.  Yes probably, but limited and at the low end of the continuum.

   2.Whether the father has the capacity to meet T’s needs.  Yes.

   3.Whether the father’s use of alcohol and/or prescription drugs impairs his capacity to meet T’s needs.  No, provided appropriate restraints are imposed.

   4.Whether the father has sexually abused T, or whether T would be at risk of sexual abuse in the father’s care.  No.

   5.Whether the father’s personality traits impair his parenting capacity and/or place T at risk in his care.  No.

   6.Whether the father’s history of intimate relationships impairs his parenting capacity and/or places T at risk in his care.  No.

   7.Whether T would be at risk of physical abuse and/or neglect in the father’s care.  No.

   8.The likely emotional and psychological impact on each of the children if orders are made in accordance with the father’s proposal, including their relationship with each other and with each parent.  See below.

   9.The likely emotional and psychological impact on each of the children if orders are made in accordance with the mother’s proposal.  See below.

Background

1. The father was born in 1969 in the United States of America (“USA”) and he is currently 46 years of age.  The mother was born in 1972 and she is currently 43 years of age.

2. In July 1992 the father moved to Australia.

3. In 1998 the parties married.

4. In 2000 E was born.

5. In 2003 B was born.

6. In 2006 T was born.

7. On 17 December 2010 the parties separated on a final basis.  The mother moved out of the former matrimonial home and into her own accommodation approximately two blocks away.

8. From 17 December 2010 until approximately April 2011 the children lived with the father and spent time with the mother each Tuesday night, Friday night and alternate weekends by agreement between the parties.

9. The mother said that on 15 April 2011 the father screamed at the mother in the presence of the children.  The mother claimed that she left and the father followed her to her house and started bashing on the back door.  The police were called and after fifteen minutes the father left.  The mother claimed that at around midnight the father started calling her and called her a “slut” and a “whore”.  She claimed that the father called her 19 times.

1. The mother said that on 16 April 2011 the father again came to her home and started banging on the door. She said the children were in the father’s car within hearing of the father.

2. The mother said that on 17 April 2011 the father again came to her home and started banging on the door and yelled at the mother.  The mother alleged that the father told her he should have full custody of the children and that if she does not agree, when she goes to pick up the girls from vacation care the next Wednesday that the girls would not be there.

3. In April 2011 the parties attended mediation at Relationships Australia.  The children commenced living week-about with each parent by agreement.

4. On 30 June 2011 Consent Orders were made which include provision for the parents to have equal shared parental responsibility, for the children to live with the parents in a week-about arrangement and for them to live with each parent for half of school holidays.

5. In July 2011 the mother commenced a relationship with Mr G.

6. The mother claimed that following a “drunken tirade” she made a report to the police and an application for an Apprehended Violence Order (“AVO”) was made on her behalf.

7. The mother said that in August 2011, the children reported not having adequate food at the father’s home, the father calling them “fucking bitches”, the father kicking them and that the father told them “Your mother left you and doesn’t love you anymore”.

8. The father said that he was served with an application for an AVO on 22 August 2011.  The application was listed before Suburb K Local Court on 23 August 2011 and the matter was adjourned to 6 September 2011.

9. On 6 September 2011 the application for AVO was listed for hearing on 25 November 2011.

10. The father said that in October 2011 he observed a large bruise on E’s arm.  He said after asking E what the bruise was that she said “Oh, mum pinched me”.

11. On 25 November 2011 the application for an AVO was dismissed.

12. The mother said that on 25 January 2012, B called her crying and reported the father had been smacking her all day.

13. In February 2012 the mother and Mr G commenced cohabitation.

14. On 21 March 2012 the parties divorced.

15. The mother said that on 9 April 2012 B and T reported that they are “smacked and kicked all of the time and called ‘fucking bitches’” by the father.

16. The father said that in early May 2012 B said to him “It’s better at mum’s house.  I don’t have any fun here. I don’t want to do my homework tonight.”.  The father says that he replied “You have to choose.  You know what is right and wrong.  You have to choose your behaviour.  I expect you to behave well whether you are here or not.”

17. The mother said that on 13 May 2012 B said that the father asked, in the course of an argument whether she wanted to live with the mother full time.  The mother claimed B said she wanted to live with the mother.  The mother said that B told her that “a couple of times” the father had “picked her up (from one couch) and thrown her across the room to the other couch when he was angry with her” and that B said “she always felt scared around him”.

18. The father said that on 14 May 2012, B said to him “You know how you told me I had to choose between you and mum and where to live.  I went to mum yesterday to let her know I wanted to live with her… it’s not that I don’t want to live with you.  I just need to spend more time around my mum.”

19. The father said that on 14 May 2012 an incident occurred at Woolworths resulting in the mother leaving with B and T, E remaining with the father and the father calling Suburb K police station.

20. The mother said that on 14 May 2012 T said to the mother that “she felt she needed to come with me to work each day to make sure her Dad didn’t come to my work to hurt or kill me”.

21. The mother said that on 22 May 2014 B reported that the father drinks Jim Beam “all the time” and has “between 7 and 9 drinks every night”.

22. The mother said that a teacher from T’s school called her on 1 June 2012 and reported that she saw T “rubbing against some other students in a sexual manner… making gyrating motions” and when asked why she had done this T replied “I was thinking of Daddy”. The mother said that the teacher said T then “broke down and disclosed other issues to the teacher including being struck by her father and that he was always mean to her and her sisters”.

23. The next day the father received a telephone call from Constable H who had attended T’s school on 31 May 2012 and spoken with T about a complaint she had made that the father had smacked her on the hand or arm.  The father understood that the police proposed not to pursue the matter further.  The children remained in the father’s care for the weekend.

24. The mother said that on 7 June 2012 T told her that the thing she likes about the father’s house is that she gets to sleep in her father’s bed every night.

25. The mother filed her Initiating Application on 12 June 2012 seeking orders to discharge the 30 June 2011 consent orders requiring the week-about arrangement, for the mother to have sole parental responsibility for the children and for the children to live with the mother.

26. On 14 June 2012 orders were made by Registrar Bartlett including that DFACS were invited to intervene, DFACS to prepare a Magellan report, the orders of 30 June 2011 were suspended and the children were to live with the mother and the father was to spend time with the children for four hours on 23 June, 24 June and 1 July 2012 supervised by I Group.

27. On 23 June 2012 the children spent time with the father supervised by I Group.  This time spent went very well as I shall refer to below with lots of hugging between the children and father and T not wanting to leave.

28. On 28 June 2012 the father filed a response seeking that the mother’s application be dismissed.

29. On 5 July 2012 orders were made by Justice Stevenson adjourning the matter to 23 July 2012.  By consent orders were made for the father to have supervised time with the children on 3 further dates for up to four hours each day subject to the acceptance of a supervisor by the ICL and the supervisor giving undertakings.

30. On 15 and 21 July 2012 the children spent time with the father supervised by Mr and Ms J.

31. On 23 July 2012 orders were made by Justice Stevenson after an interim hearing.  Justice Stevenson discharged all interim parenting orders since 30 June 2011.

32. On 25 July 2012 the children were delivered to the ICL’s office by the mother for the purposes of the ICL explaining the orders of 23 July 2012 to them.  The father collected the children from the appointment however E refused to go with the father.

33. From 25 July 2012 until 5 May 2013 B and T continued to live week-about with each parent in accordance with the orders of 30 June 2011.

34. On 28 July 2012 E spent four hours with the father by agreement between the parties.

35. From 30 July 2012 until 18 September 2012 E communicated intermittently with the father by text and KIK messaging.  E has not spent time or had any communication with the father since this date.

36. The mother said that on 31 July 2012 E told her that the father watches her while she showers.

37. Between August and December 2012 the children attended counselling at Unifam as part of the Anchor program.

38. The mother said that on 10 November 2012 B had a tantrum at a restaurant and threw a chair “across the restaurant into a pram where a newborn was asleep” and that B said she did this as she didn’t “want to go back to Dad’s”.

39. On 13 November 2012 orders were made by consent that the children undertake family therapy with Dr C, that the mother and father participate in family therapy and that pending further orders, Order 2 made on 30 June 2011 be suspended regarding E.

40. The mother said that on 10 December 2012 B reported that the father “drinks every night and passes out on the couch”.

41. The mother said that on 26 January 2013 T said that the father “belts us with a wooden spoon… [and] hits us across the arms and back” and that B said “…we are either at vacation care or locked in our room”.

42. On 25 February 2013 the mother took B to Suburb K Police station to make a statement.  The mother said that she was told by Constable L that, “[B] spoke about her father belting her across the stomach and hips and throwing her across the room into furniture.  [B] said that [T] witnessed everything and wrapped herself in a blanket and sat in the corner screaming for the father to stop hurting [B].”

43. The father said that in March 2013 he was questioned by police over reports he struck B on the arm.  He said B admitted that she lied and said “mum told me too”.

44. On 8 April 2013 the mother met with family therapist, Dr C.

45. On 6 May 2013 the father returned B and T to school. B and T have not spent any time, or had any communication with the father since this date.

46. The mother said that at approximately 8.00 pm on 6 May 2013 E told her that T has said to E that “I had blood coming from my vagina on Sunday after Dad had sex with me”.  The mother claimed that T said the same to her and that “It happened about 10 times when I’m at Daddy’s… Please Mummy, I never want to go back to Dad’s place again.  He hurts me.”  The mother claimed that she subsequently called Suburb M police station and arranged to meet with Detective Senior Constable N at O Hospital.  The mother claimed she, Mr G and the girls were “sent home” from the hospital around 11.00 pm.

47. On 7 May 2013 T attended an appointment at the Child Protection Unit at O Hospital.

48. On 8 May 2013 T was interviewed by JIRT at Suburb P.

49. The mother said that on 29 May 2013 she was told by JIRT that allegations of sexual assault of T by the father were “not substantiated” and that T “said the father picks them up by their shirt collars and pushes them against the walls and carries them into corners for punishment, throws them onto furniture and belts them with a wooden spoon or a belt around the arms, back, stomach, bottom and legs”.

50. The mother said that on 4 June 2013 B said “Dad hit me on my bottom with a meat tenderiser”.  The mother also said that she overheard the children talking and E said to B “Does Dad still watch you in the shower” to which B replied “He watches us every night, he sits on the toilet and watches us wash ourselves.”.

51. On 6 June 2013 the mother filed an Application in a Case seeking among other things, to suspend the father’s time with the children.

52. On 25 June 2013 orders were made by consent by Registrar Tran including that the orders dated 30 June 2011 and interim orders dated 13 November 2012 be suspended, that pending further order the children live with the mother, that the matter be adjourned until after the release of the Family Report and noting that the father denies allegations of inappropriate and abusive conduct towards the children and consented to the orders on a without admissions and without prejudice basis

53. In June 2013 the father requested the mother to permit the children to spend time with their paternal grandmother during her proposed visit to Australia later that month.  The mother declined to give permission.

54. In September 2013 the father was made redundant from his employment.  He has not been in employment since then.

55. The mother said that on 23 September 2013 T told her that the father was wearing pyjamas and “his shorts were wet… His private parts were wet on my legs”.  The mother said she called JIRT to report this statement on 4 October 2013 on advice from T’s psychologist.

56. The matter was listed for final hearing and trial directions were made by Registrar Bartlett on 31 October 2013. The mother claimed the father had difficulty sitting still, speaking coherently, keeping his eyes open and appeared heavily intoxicated at Court.

57. The father said that on 4 March 2014 he was contacted by E’s homeroom and science teacher who informed him that “[E] is having issues with homework and her iPad use” and that “[E] is not socializing with other kids at school”.

58. On 3 November 2014 the hearing commenced.  On the third day, 5 November 2014 the Court was asked to suspend the hearing for a period to enable the parties and the children to resume family therapy with Dr C.  This was for the purpose of attempting to re-establish a relationship between the children and their father.

59. The mother said that at this time she no longer believed that T had been sexually abused by the father.  The mother did not think that T was at risk of sexual abuse in the care of the father.

60. As indicated above, the mother and the children attended three appointments of therapy in early 2015.  The father attended five appointments.  In my view, it is clear that the mother did not have any real commitment to assisting the children to endeavour to re-build their relationship with their father.  The children informed Dr D that they went to the appointments with Dr C with a “horrible attitude”.  It became clear during the subsequent cross-examination of the mother that she did not want a situation where the girls would have any further face to face time with their father.  The most the mother was prepared to countenance was that therapy might bring about a situation where there was some contact between the children and the father by letter or telephone. 

61. Once Dr C discontinued the therapy it became clear that the hearing would need to be resumed. 

Credit

The Mother

1. The mother appeared to have some difficulty with the process of cross-examination.  Time and again she was not very responsive with information relevant to the questions which were asked.  On many occasions she used the question as an opportunity to say something which was probably perceived by her to favour her case, rather than to provide a relevant and responsive answer.

2. So unrestrained was the mother in this that at one point she could not resist engaging in some argument with counsel who was cross-examining her. 

3. Early in her cross-examination by Ms Shea for the ICL, the mother said that on 5 November 2014, when she signed the consent orders she believed that the father had not sexually penetrated T, that T was not at risk of this and that T had not been sexually abused by her father in any other manner.  Nor did she believe that any of the three children were at any risk of sexual abuse by their father.

4. Yet later during cross-examination the mother said that three months later, by the time she saw Dr C, she believed that T had been sexually abused by her father.  The mother said that she changed her mind because she re-read her notes and saw an entry where T had told her that one night when she was in bed with her father his underpants were wet and the mother said she was also reminded that the girls had said that their father had watched them in the shower.

5. As Ms Shea pointed out to the mother, she knew of these allegations well prior to November 2014 when she signed the consent orders.  In my view this change of mind on the part of the mother strains credulity. 

6. There were many other instances where the mother’s evidence appeared to be unbelievable.  In all the circumstances I regard the veracity of her evidence with some reservation.

The Father

1. The father was most forthcoming and responsive to answers during cross-examination.  He gave succinct replies and on many occasions he was able to demonstrate considerable detail in explaining his denials of many allegations made against him by the mother. 

2. He did not give me the impression that he was using his cross-examination as an opportunity to further his own case.  On numerous occasions he made concessions and explained the context in which the particular point of criticism made against him had in fact occurred.

3. Having said this, it is probably the case that in respect of the allegations of violence he appeared to minimise the seriousness of such.  I suspect this was probably the case in respect of the level of verbal abuse between the parties.  The children informed Dr D that their parents argued every night and that this caused them to be scared.  The father gave me the impression that he thought the arguments were really no more severe than what would occur in most marriages.  Although I have doubts about the accuracy of many things which the children said, their observations to Dr D and others about the level of shouting between their parents are more likely to reflect a serious element to this rather than the likely minimised version offered by the father. 

4. But generally I regard the father as a witness of the truth.  Where his evidence conflicts with that of the mother, I have more confidence in accepting his version in most circumstances. 

Mr G

1. Mr G is the de facto partner of the mother.  He answered questions in a responsive manner. 

2. I regard Mr G as a witness of the truth.

Complaints by the Mother Against the Father

1. The mother has made numerous complaints against the father including the following:

   ·That he has verbally abused her in the presence of the children on many occasions;

   ·That he has sent numerous abusive text messages to her;

   ·That he tried to choke her;

   ·That he has neglected the children by not providing nourishing meals for them and each of B and T have been returned to her care suffering from head lice;

   ·That he threw her through the bathroom door and held her against a wall by her throat until she blacked out;

   ·He tried to smother her by forcing her head into the pillow

   ·In June 2009 he pushed her against a bedroom wardrobe and yelled into her face

   ·In October 2010 she arrived home late from work and the father went into a rage and called her “a …Whore”, a “slut” and a “cunt”.

   ·That he failed to spend time with T on her birthday in 2013 as provided by the orders

   ·In October 2013 at this Court, she observed the father to have difficulty sitting still, speaking in coherent sentences and keeping his eyes open. He appeared to her to be heavily medicated or intoxicated.

   ·That he has attended her home without invitation and argued with her;

2. In relation to the alleged verbal abuse, the father said that on the occasions when the parties have been arguing they have both sworn and yelled at each other.  He said that he regretted having behaved in such a manner.

3. With respect to alleged physical abuse, the father conceded that there was an occasion in 2009/2010 when the parties were sitting on their bed and the mother elbowed him in the nose. He thought his nose was bleeding and swore.  The mother started to punch him in his chest and shoulder.  He grabbed both her wrists for a few minutes to prevent her from punching him.  The mother left the house.  The father said that upon her return home the mother apologised to him.

4. The father said that there were other occasions when the mother punched him.

5. In relation to the bathroom door incident, I shall refer to this below.

6. The mother said that each of the children has made complaints to her about their father including the following:

   E

   ·In June 2012 E said that the father was drinking through the day as well as at night;

   ·In July 2012 E said that the father uses the toilet while she is in the shower;

   ·Since July 2012 E has made it clear that she did not propose to spend time with her father or communicate with him;

   ·On the night of separation, 17 December 2010, E said she was sitting in the driveway and her father grabbed her by her hair, dragged her back into the house and threw her into her bedroom without dinner.  E said he yelled at her “all this is your fault you fucking bitch”.

   ·In June 2013 E said that she had a dream in which her father caught her and stabbed her.

   B

   ·In January 2012 B informed her mother that the father had been smacking her all day;

   ·In early 2012 B (and T) said the father just yells and sends them to their room all the time and calls them “fucking bitches”;

   ·B said her father had “thrown her across the room to the other couch when he was angry with her”;

   ·In May 2012 B said her father has between seven and nine drinks of Jim Beam each evening;

   ·In November 2012 B had a tantrum at a Suburb K restaurant and later said she did not want to return to her father’s care;

   ·In December 2012 B had another tantrum and later apologised to her mother saying she gets angry when she has to go to her father’s home;

   ·In February 2013 B was complaining about having to return to live with her father and said the father says bad things about the mother, calling her a bitch and a whore and that the father does not assist her with her homework;

   ·In June 2013 B said that her father hit her on her bottom with a meat tenderiser. She then laughed and said he won’t use it again because it split in half. The same day the mother heard E ask her sisters “Does Dad still watch you in the shower” and E replied “He watches us every night, he sits on the toilet and watches us wash ourselves”.

   T

   ·In June 2012 T said her father lets her sleep in his bed every night and he cuddles her.  The mother asked whether any grown up person had touched any of T’s private parts and she said “No”;

   ·On 20 April 2012 T told her that she and the father have a secret but T would not say what it was;

   ·In late January 2012 T said that the father belts them with a wooden spoon across their arms and back;

   ·On 24 April 2013 T said words to the effect of “Dad doesn’t call you a fucking horse any more, he calls you the fat, mean pig”.

   ·In May 2013 T said that she had a really bad headache and had been worrying that the father would “pull them out of school like he did before “

   ·The mother said that T said she had numerous bad dreams that her father had tried to kill her, that he wanted to hurt the mother and wanted her to die,

Complaints by the Father Against the Mother

1. The father has made numerous complaints against the mother including the following:

   ·That she smacks the children;

   ·That she denigrates him in front of the children;

   ·That she would punch him during the marriage

   ·That her partner Mr G is an alcoholic;

   ·That Mr G, who is a tradesman, took T to a construction site (which the mother said was the home of a friend of Mr G at which he was doing some work).

Alleged Sexual Abuse

1. As indicated above, in May 2013 T said something to E which caused the previous shared parenting arrangement to be discontinued.  From that time the mother stopped that arrangement and the father has not spent any time with the children or communicated with them since that time.

2. In her affidavit the mother said as follows:

   209. On 6 May 2013 at approximately 8pm [E] told me that T said to her words to the effect of “I had blood coming from my vagina on Sunday after Dad had sex with me”.

   210.I entered [E’s] bedroom and saw both girls sitting on [E’s] bed crying.

   [T] said words to the effect of “I just told [E] that I had blood coming from my vagina on Sunday after Dad had sex with me”.

   I said to [T] “What is sex? Do you know what that means?”

   [T] said words to the effect of “It’s when the lady and man push their private parts together”

   I asked “Are you bleeding now?”

   [T] said “No it happened on Sunday”

   I said “How much? Was it in your underpants?”

   T said, “No it was on the paper when I wiped”

   I said to [T] “When did this sex happen?”

   [T] replied words to the effect of “It happened about 10 times when I’m at Daddy’s?

   [T] began to sob loudly and was stuttering during the conversation. I have never heard [T] stutter before. [T] said words to the effect of “Please Mummy, I never want to go back to Dad’s place again. He hurts me”.

   I told [T] to stay with [E] in [E’s] room whilst I made a phone call, so we could work out what we needed to do.

   211.I called [Suburb M] Police Station that night and spoke with Senior Constable [N]. We arranged to meet at [O Hospital].

3. The mother said that she, Mr G and the girls were “sent home” at 11.00 pm.  The following day they attended at O Hospital again where urine samples and swabs were taken from T.  On 8 May 2013 T was interviewed by the Joint Investigation Response Team (“JIRT”) at Suburb P and on 29 May 2013 the mother was informed that the investigation had not substantiated the allegations.  The mother’s solicitor was informed that Ms Q of JIRT had informed the father’s solicitor that the investigation would be closed.

4. Counsel for the father cross-examined the mother about this series of events.  Mr Campton asked the mother whether paragraphs 209 – 211 of her affidavit were inclusive of the whole conversation between her, E and T the night of the disclosure.  The mother agreed that it was not.  The mother said that on that night E said words to the effect of “Mum, you need to come in and hear this”.  T then said to the mother words to the effect of “I just told [E] I had blood coming from my vagina on Sunday after Dad had sex with me”.  She said that E confirmed that it was what T had previously told her.  The mother disagreed with counsel’s suggestion that she had to coax T into saying something or that E said “[T] has something she needs to tell you”.

5. Mr Campton suggested to the mother that she had provided a reconstructed version of the terms of the disclosure, and that the Court should therefore not consider paragraphs 209 and 210 of her affidavit.  The mother confirmed that it was exactly what E said to her; the mother denied that E told her what had happened before T did.  She maintained that E said words to the effect of “come here mum” and then T made the disclosure.

6. The mother conceded that she did not observe any blood coming from T’s vagina or in her urine at the time of the disclosure.  The mother denied that as at 6 May 2013 she knew T had experienced blood in her urine since 2011 and said she could not recall T experiencing blood in her urine in 2013.  Counsel for the father put to the mother that T had been complaining of a sore vagina for two weeks before the disclosure.  The mother agreed that she had a few times, but that it was usually when she had returned from the father’s house.  The mother conceded that she had omitted that fact from her affidavit.  The ICL cross examined the mother on this topic and the mother said that T had complained about a sore vagina approximately three to four times at different stages between February 2012 and May 2013.  The mother said that she could not specifically recall an occasion, in the two weeks prior to May 2013 where T woke up in the middle of the night and stated she had a sore vagina.  The mother said that she did not include those previous three to four occasions where T had woken complaining of a sore vagina in her affidavit because she did not think it was anything to do with sexual abuse.

7. Mr Campton put to the mother that during T’s interview with JIRT, that she said to an officer that she had blood in her wee since she met Mr G (presumably referring to the mother’s partner).  The mother said that she was not told of this.  Counsel asked the mother “If [T] had said that, it would be a surprise to you?”  The mother answered “Little girls get blood in their urine for a number of reasons …”.

8. The father denied any inappropriate behaviour with any of the children.  He caused his solicitors to inform the mother’s solicitors without delay that he appreciated the seriousness of the allegations and would co-operate with JIRT in any interview and investigation process.  He also agreed to suspension of the current orders pending results of medical tests and the JIRT investigation.

9. The mother said that on 4 June 2013 she overheard E, B and T talking about how the father watches them shower.

10. On 9 September 2013 the mother received a letter from Victims Services with whom she had arranged for T to have counselling.  She said that she said to T “[Ms R] the counsellor is going to talk to you about your nightmares and you can talk to [Ms R] about what happened in Dad’s bed”.  The mother said that T went on to inform her that “his shorts were wet” and “His private parts were wet on my legs”.  The mother asked T if the father was awake, to which she replied yes.

11. On 4 October 2013 the mother made a report to JIRT about this allegation.  She said that this was on the advice of T’s psychologist.

12. In cross examination, the mother accepted that T had told JIRT after the 6 May 2013 allegation that she and the father had their clothes on and that the father’s clothes were dry.  However, the mother disagreed that T had told them that he was asleep.  She maintained that T told her that he was awake.  The mother said that T later told her, in September 2013, that she told the JIRT officers that her clothes and the father’s clothes were dry because she was scared to tell them that they were wet because “grownups don’t wet their pants in bed … I told her they were dry because she was a stranger and I was scared of her”.

13. The mother said that on 10 January 2014 T was having nightmares, was difficult to console and asked “Mumma can you rub my thighs, like Daddy does”.

14. Dr D reported his interview with T about this alleged sexual abuse.  He said as follows:

    188.Coming towards the end of the interview with [T], I had asked [T] whether she ever felt “worried or sad”. [T] spoke about a nightmare regarding the father walking up her driveway at home, then spoke of feeling fear “even in the daytime”, when she is at school, “because he knows what school I’m at”. I then asked the question, “is there anything else you fear?”.

    189.[T] replied… “there is… but I don’t want to tell you”. I paused to wait and listen, and she continued. [T] said, “I’d go into his bed… I’d sleep in it… this happened to me… I had to go to hospital… when I woke up, he’d wet his pants, and he rubbed it all over my leg… I was bleeding… when I told my sister, we went to hospital… they checked for me… they were specialists, to see if I was alright”.

    190.    I asked whether [T] had been alright.

    191.[T] continued, “I forgot what the test results were… [she appeared apprehensive] I think what she said was bad… that I was bleeding too much… ‘cos that was Year 2… it’s not a problem now”.

    192.I asked [T] to tell me more about what happened when she woke up in dad’s bed.

    193. [T] said, I was sleeping, and… well… he had his undies on… and in the morning, I woke up, and his undies were wet, and I thought that… I don’t know if it actually happened… I thought he put a sperm into me, or something like that… my mum gave me a book about how I was made… the sperm goes to the ovum, and a baby creates”. [T] continued, “It was in Year 3… I discovered that he might’ve done that to me… and then I realised… cos I had a flashback”.

    194.I asked more about going to the hospital. [T] said, “they helped me… there were 2 doctors in the room, and they were… I had to get naked, and they checked everything… they took DNA from me”.

    195.I am concerned that [T’s] narrative appears to have been elaborated since the record of her JIRT interview of May 2013, when [T] spoke of the father’s penis having touched her vagina when both had clothes on, and with no wetness.

    196.I am concerned that [T’s] narrative may have been initiated from or at least been elaborated in the context of maternal concerns about T showing sexualised behaviour and being in dad’s bed dating back to May/ June 2012 [which were tested in the hearing leading to the interim judgement of July 2012], and [E’s] concerns about the same expressed to her counsellor in October 2012 and arising from [E] pairing her observation that “[T] sleeps in everyone’s beds” with what she was learning in school sex education.

    197.[T] appears to continue to carry an unease about what the doctors may have found when they examined her genital area, and about the possibility that the father has put a sperm into her, and [E] expressed uncertainty about “the complete extent” of [T’s] “sexual abuse”.

    198.The mother told me that at court in November 2014, she had been presented with “the medical evidence.. that her hymen was intact… so there was no internal sexual assault”, but it appears that the mother has not communicated effectively to [T] or to [E] any message of partial or full explanation or reassurance about paternal sexual intrusion upon [T].

15. The other material in Dr D’s report relevant to the allegations about sexual abuse was as follows:

    199.At interview, the mother and all three girls expressed a broader concern, that the father would watch the girls, when they were in the shower.

    200.The mother said to me, “he’d watch them take showers… [E] came to my place, and she hadn’t showered for a week…. She was too scared to have a shower at his place”.

    201.[E] said to me, “he’d watch us in the shower”. I asked [E] to elaborate about this. She said, “I would, like, lock the door, but he could get a 50 cent coin, and unlock it… and he’d come in, and sit… he’d have a magazine, and pretend to be reading, but I’d catch him looking… it was uncomfortable”.

16. The mother said that in July 2012 E made a similar complaint to her, that is, that when she was in the shower the father would unlock the door and use the toilet while she was in the shower.

    202.I asked how often this had occurred. [E] said, “it was every night… it was incessant… persistent”. This had occurred every night from the separation, until “he eventually stopped”.

    203.I asked what [E] would do… would she stay in the shower until the father left, or would she get out, and dry herself, with him there watching.

    204.[E] appeared hesitant in her response. She said, “he’d leave… or sometimes I’d get out of the shower”. As I sought to ask another clarifying question, [E] appeared agitated. She said, “I don’t know…. It’s one of the things I push to the back of my mind… like a lot of things… I know they happened, but I’m not clear… it’s hard for me to remember, and I don’t want to… I really want to move on”.

    205.It is possible that [E] was expressing distress at being asked to recall a traumatic experience. My impression was more that she was seeking reprieve from being questioned in detail about a constructed narrative.

    206.[B] did not spontaneously raise the issue of being observed in the shower. At the end of the interview with her, I asked about “privacy”. [B] said, “he’d sit on the closed toilet, and watch us in the shower”, and “he’d barge in, and want to know what we were doing”. Afterwards, “we’d get dressed in our rooms”.

    207.The father told me that he had been in the habit of putting the girls in the shower, but that the mother had said to him when [E] was aged about 11 [so, in 2011/12], “let [E] go first, and bring her stuff with her [to change]”, so the father had started that. The father said, “I’d start the shower, and she knew how to turn it off”. The father denied sitting on the toilet and watching the girls, as they showered.

    208.The father denied any sexual inclination towards the girls or towards any other children or adolescents. He denied any sexual intrusion upon [T] or any of the girls.

    209.Uncertainty is common when one is seeking to interpret disclosures of possible sexual abuse or sexually inappropriate adult behaviour made by pre-adolescent children, especially in a partisan and pre-emptively vigilant context such as in this case.

    210.I do not discern from the above narratives a likelihood that the father has been sexually abusive to [T]. [T’s] narrative appeared to be a mix of remembered events and extrapolations from information from the mother and [E] and a sex education book, and a “flashback” that occurred after the latter input. I note that a JIRT interview carried out soon after the disclosure did not lead to the substantiation of abuse.

    211.The three girls’ expressed unease about the father watching them in the shower is of concern if taken at face value.

    212.But, I would expect that a single father assisting children aged between 4 and 10 (at separation) would need to be present in the bathroom or at least in and out of the room when the children were showering, and I note the comfortable (not awkward or sexualised) ease with which the children appeared to engage physically with the father as described by the [I Group] supervisor when the children saw the father in June 2012.

    213.In my view, there is a significant likelihood that the girls are imposing a post-hoc sexualised interpretation onto what was at the time and what was experienced at the time as an ordinary process of the father assisting with the children’s showering.

17. Having read all the evidence about this allegation concerning the showers, and heard it tested during cross-examination, I have no hesitation in agreeing with Dr D’s conclusion that the girls have most likely placed an incorrect interpretation on a very ordinary activity.

18. In relation to T’s assertions on 6 May 2013 that her father had sex with her, it is clear that any sexual intrusion by the father against T or any other child is not supported by the evidence.  I accept Dr D’s view that what T said appeared to be a mixture of remembered events and extrapolating from information by the mother and E, a sex education book and a so-called “flashback”.  In any event, the mother, after having the benefit of all the relevant evidence and the experience of being cross-examined about this, accepted that on 5 November 2014, the third day of trial, that T had not been sexually abused by the father and that none of the children would be at an unacceptable risk of sexual abuse from the father.  The mother signed a minute of “Agreed Findings of Fact” to this effect on 5 November 2014.

Emotional Abuse by the Mother

1. Dr D said that he was concerned that the orders of November 2014 had been made on a false premise, this being that the mother no longer believed that the father had sexually abused the children or that the children were at risk of sexual abuse.  He said that he was concerned that the mother entered into those orders, including orders that the children would engage in therapy involving them and their father with the mother having no intention to facilitate the restoration of the children’s relationship with the father.  He said in fact it appears that the mother had the ongoing intention and need to maintain the current rift in the father/children relationship.

2. Dr D expressed concern that the mother was showing a willingness to put the children in what he described as “the front line” of the battle against the father.  He said that her strategy relied upon and required the children to resist and to scuttle this therapy.  He said that the children’s negative narratives about the father and escalations into displays of emotional distress about the father during the therapy with Dr C (and subsequently during the interviews with him) were not only expected by the mother, but relied upon by her. 

3. Dr D said in his view the mother entering into the orders and her subsequent partisan enactment of them was a perpetuation of a pattern of maternal emotional abuse of the children through her strategic involvement and enlistment of the children into these court proceedings and into her broader partisan agenda to “press restart” on her own and the children’s lives with her new man and without the father. 

4. The mother conceded during her cross-examination that she wanted to “press restart” and “have a better life (without) a violent man”.

5. In addition, Dr D said that the mother has not acted in any substantial or effective way to convey to the children a belief that T has not been sexually abused, nor that the children are not at risk of sexual abuse, nor to lessen the impact of such views upon the children.  He said that he thinks it likely that the mother has continued to express and perpetuate such views, and their impacts, in the context of a need to maintain the children’s exclusive and partisan inclination towards herself and away from the father.  He said that in that regard the mother’s focus appears to be upon the girls’ loyalty rather than upon their welfare.  He said that he is concerned that she may be perpetuating beliefs in the girls that are distressing and damaging for them and that she does not fully believe herself.  For example, T’s belief about sexual abuse and the nature and extent of that abuse and E’s belief about responsibility for the same.  He refers to the mother as having said earlier in the interview that E feels guilt that T got hurt in a sexual manner.  He said that the mother did not appear to have acted in any way to seek to relieve E of the burden of that guilt.  He said he also noted that Dr C had observed that E continued to carry that burden. 

6. Dr D said that the children have suffered psychological harm as a consequence of the mother’s behaviour.  This includes all three children having experienced grief and enactments of resistant distress which occurred in both his office and that of Dr C when the children were informed that they would be seeing their father.  He also said that all three children have experienced modelling by their mother of immature and partisan processes as well as having been involved in “elaborating narratives beyond their experience.”  That is, Dr D suspects all three children have ended up saying things that did not happen which he said can create complexity for them later on.

Family Violence

1. Family violence is defined in s 4AB of the Act as follows:

   4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

   4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)      an assault; or

   (b)      a sexual assault or other sexually abusive behaviour; or

   (c)      stalking; or

   (d)      repeated derogatory taunts; or

   (e)      intentionally damaging or destroying property; or

   (f)      intentionally causing death or injury to an animal; or

   (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

1. Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:

   4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

2. The mother has made numerous complaints against the father including the following:

   ·That he has verbally abused her in the presence of the children on many occasion;

   ·That he tried to choke her;

   ·That he threw her through the bathroom door and held her against a wall by her throat until she blacked out;

   ·That he tried to smother her by forcing her head into the pillow

   ·That he has attended her home without invitation and argued with her.

3. The mother said that on 4 August 2011 the father pounded on her back door.  She said two police constables attended and took a statement and made an application for an AVO.  The AVO was returnable on 23 August 2011 and the father did not appear so it was adjourned to September. 

4. The children made numerous complaints about the father.  At Dr D’s interview E said that the father went from one punching bag to another.  He said that B said “because Mum was not there to be hit anymore by my Dad he started doing that to us … taking out all his anger on us … we were sent to our room … pushed … he was pounding into us … he hit me with a meat tenderiser … he broke wooden spoons on us … he held [T] up by the collar, onto the wall … he was not a caring father like everyone else had.”.  When [E] spoke to the family consultant in September 2013 E reported that the father had hit her frequently ever since she could remember and that he had broken spoons on the children.

5. B told the school counsellor in June 2012 that Dad hits her and her sisters and had done so for four years.

6. When Dr D pressed the children for examples he said they gave the same examples as had appeared in the earlier family report, for example the meat tenderiser incident, B being thrown on the lounge and T being held up by her neck.  He said they were not able to provide the type of context or detail or immediacy of fragmentary information that he says are commonly part of recalled traumatic memories.  He said the children were inconsistent with regard to such acts being perpetrated on one or all of them, and on a single or multiple occasion.  He said that there was a rather vacuous and empty tone, an almost weary tone to those narratives. 

7. In relation to the meat tenderiser incident the mother said that in June 2013 B said her father had hit her with a meat tenderiser.  The mother said she then laughed and said “he won’t use it again because it split in half.”.  T informed Dr D that B got slapped on the bum by a meat tenderiser and the father broke it.  She said that “Dad started getting angry, and he got the meat tenderiser out of the drawer and whacked it on [B’s] bum and it broke.  She said her bum was sore and she cried.”.  When Dr D asked B about the meat tenderiser incident she said “He hit me … down my back … on my butt … maybe even my arm”.  Dr D said that B had told the family consultant in September 2013 that the father had also hit her siblings with the meat tenderiser, but did not report the same to Dr D. 

8. Upon Dr D raising the meat tenderiser incident with the father, the father had spoken of “tenderising” B’s “arse” as a jovial exchange between him and the children which was enjoyed by both and was not threatening.  The father had informed the family consultant that he did not hit any of the children with a meat tenderiser.  He said in his evidence that B had been behaving as a bit of “a smart arse” and he said that he would “tenderise” her “arse”.  He said that this was done in good humour. 

9. In my view it is more likely than not that the father’s version is more accurate. 

10. Dr D said that he was led to question the independence and objectivity of the children’s abuse narratives because all three children appear to have been immersed in the maternal narrative and to have become aware of much partisan information, including information in Court documents.  He said that the children’s views often mirrored maternal views and in doing so at times used adult language that mirrored maternal language.

11. In relation to the incident involving B being thrown onto the lounge, T said that B got thrown across the couch and broke her back.  In relation to this matter the father informed the family consultant that he did pick B up and throw her on the couch.  But he said that his house had two couches right next to each other and that B laughed when it happened. 

12. B informed Dr D that the father had held T up by the collar, onto the wall.  When Dr D asked T about being lifted up against the wall she said that she was the one lifted up because she was “the lightest”.  He said that she could not recall the reason or what had happened just before.  The father said that in fact he had lifted T up by the shirt and that this was in a jovial context. 

13. E had told the family consultant that she had seen the father hold a pillow over the mother’s face until she “passed out”.  Yet when Dr D mentioned a pillow to E and the father using a pillow, he said this did not lead E to recall the incident.  B also told Dr D that the father had put a pillow over the mother’s face until she fell asleep and was not alive.  She said she was present with her sisters but B later informed Dr D that in fact the mother had informed the children about this alleged incident “afterwards”.  Later in Dr D’s interview the mother had said that only E had observed the incident, not the younger two girls.  Dr D’s view about this is that over time this matter had become part of a shared narrative between the mother and the three children.  He said that the children’s accounts of who had been present appeared inconsistent.  He also said that the mother’s passive uncertainty about the experience of the alleged event appeared unusual. 

14. In relation to verbal abuse Dr D said that his impression was that the children had likely experienced loud parental arguments on some or many nights at least in the lead up to separation.  He said that at least two of the girls had observed intense physical argument between the parents during which they perceived that the father threw the mother into the bathroom. 

15. In relation to the bathroom door incident the father denied throwing the mother through the bathroom door.  He informed the family consultant that he and the mother had been having an argument, that she hit him, that he put his hand out and she put her hand against the bathroom door which was not properly closed, so that she fell backwards through the door into the bathroom. 

16. Having heard the father’s account of the bathroom door incident during his cross-examination, I accept his version of the event.  But it was clear that there had been an argument and that the children could have properly interpreted it in the manner which they have reported.  I accept the father’s explanation that this was really an accident.  In my view it is more likely than not that the incident has been used as part of what Dr D described as the general narrative of the mother and children against the father.

17. There was an incident on 25 February 2013 when B had alleged that the father had hit her on the forearm after she asked for help with her homework.  B also said that she tried to get out of the house and that her father grabbed her by the arm and dragged her away from the door.  The police spoke with the father about this complaint and they ultimately took the view that this was a lawful chastisement.  The father conceded to the police that he did grab B as she was trying to leave the home.  The police took no further action.

18. Dr D said that he thought it unlikely that the father has perpetrated an ongoing pattern of physical or emotional abuse of the children.  He said the I Group contact report of 23 June 2012 is informative.  He said that the children appeared to be very settled and interactive in the father’s care.  He said that they did not appear physically or psychologically cautious or vigilant.  He said that they are not placating and over-compliant.  E felt trusting enough to have somewhat of a “tantrum” when she feared that she had lost data from her electronic device.  He said that there appeared to be an easy familiarity in the engagement between children and father including their bodily engagement.  He said that he would be surprised to make such observations in the setting where there had been ongoing physical abuse and/or significant neglect.  He said that in his view the girls’ rapid reinstatement of being “OK” or positive about time with the father after just one visit would not be typical of a setting where children had experienced ongoing abuse in paternal care.

19. Dr D’s overall impression was that the children’s belief about recurrent father to mother violence arose from the shared narrative between the mother and the children rather than from the children’s lived experience. 

20. I accept that there has been some physical chastising of the children by the father.  But in my view, it is more likely than not that the children have exaggerated and distorted the various incidents consistently with what Dr D refers to as their shared narrative with their mother.  I do not accept that the father has engaged in a pattern of physical abuse of the children or the mother.

The Applicable Law

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”). 

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

3. The objects in this context are to ensure that the best interests of the children are met by:

   ·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   ·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   ·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   ·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·Parents should agree about the future parenting of their children; and

   ·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

6. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

7. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

8. Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.

9. Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

10. If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

11. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. In my view, it would not be in the best interests of these children for their parents to have equal shared parental responsibility.  The parents have an extremely poor relationship which has been characterised now for a long time by conflict and hostility.  The mother has not permitted the father any role in parenting the children for several years.

3. The view that I have arrived at for the reasons largely set out below, is that the best interests of the children will be served by all three children living with their mother.  Because of the poor relationship between the parents it would not be in their interests for their father to be involved in major decision-making about them.

4. But there is another reason why it would be in the children’s interests for the mother to have sole parental authority.  This is Dr D’s view that if the mother had such authority this would be likely to contribute to her feeling more secure and settled as the children’s primary parent rather than as he suspects, feeling some apprehension about the father’s capability as a parent and his power to connect with and engage the children which Dr D thinks the mother feels quite threatened by because of some insecurity within herself.  Such improved security and settlement would, in Dr D’s opinion, more likely lead to compliance by the mother with Court orders.

Section 60CC Considerations

1. How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in s 60CC(2) of the Act. These are:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.

3. Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. E expressed a strong view to Dr D that she would live with her mother, would not see or communicate with her father and would probably never again do so. 

2. B informed Dr D that she would want to make the decision, and wanted to live with her mother. She “never” wanted to see her father again and would not imagine that she might decide to do so at age 13, 15 18 or any age.  She would be “sad and scared” if she had to see her father.

3. Dr D said that T said “I wanna choose who I live with…dad wants us to live there, and mum wants us to live with her…but I go with mum…but, maybe…I’m glad that I don’t have to decide…I just want the judge to…but I want to go with mum”.   He said that T would “keep it like it is”, and not see her father.  But Dr D also said that there was “an element of tornness and definitely a hesitation” in T saying this.

4. Dr D also had the impression that the children’s “homogenous and polarised desire” to be exclusively with their mother and not with their father has been “an adaptive mirroring of this adaptation within the mother”.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

Mother

1. Dr D said that the three children have a positive relationship with their mother.  He said that this is an attachment relationship in which the children look to their mother to meet their basic needs for food, shelter and protection from harm, and their more complex emotional intellectual, relational and developmental needs.  Dr D described it as a “mostly secure attachment relationship, in that the children experience the mother as mostly meeting their needs, and as non-dangerous.  He said the children spoke positively about their mother and also about their mother’s partner Mr G.

2. But Dr D also found that the children’s descriptions of their relationship with their mother were rather empty and stereotyped.  He said that each child appeared to be stressing how “good” the mother was in comparison with their “bad father” rather than the children providing any texture or context to a description of close affinity with the mother.  E described to her school counsellor in March 2014 that when she compared her relationship with her mother with her relationship with her friends, she felt disappointed with her relationship with her mother.

3. Dr D viewed the mother’s and children’s “shared globally negative, rejecting, blaming and fearful narrative about the father, and their matching idealised narrative about their father – minus family life”, to be more a feature of the children’s relationship with the mother than that with the father.  As indicted above, he thought the mother feared the father’s capacity to engage or connect with the children which would disrupt their current loyalty to her and that such fear extended to the power of the father to do the same, even in a single interview in his office.  He thought it likely that the mother’s true fear is of the re-kindling of what she knows to be a past strong and positive bond between the children and the father.  He said he thought the mother’s fears in this regard have been amplified by the supervised contact between T and her father reported on by I Group of 23 June 2012, the relevant report describing natural and positive connection between the children and their father.  He said that the supervisor fed back to the mother that T had not wanted to leave the visit with the father and noted that the mother appeared surprised or confused by this.  Dr D thought it likely that the mother would have found such a result threatening as would have been the case with regard to the subsequent court decision in July 2012 to reinstate the previous “week-about” orders.

Father

1. Dr D said that the children’s relationship with the father does not currently exist at an interpersonal level.  He said the relationship exists in the memories, narratives, attributed meanings, dispositions and intentions of the father and of each of the children.  Dr D said that he needed to piece together a view of what the relationship might have been like before mid-2013, what it is currently like within the minds and hearts of the father and of each child, and what it might look like in the future. 

2. He said that the father spoke warmly and with detail about his past relationship with the children and his role in raising them.  Dr D regarded this as genuine.  Dr D noted that the father appeared to have been able to step into the role of sole parent without apparent marked dysjunction following separation in December 2010 when the children were aged 10, 7 and 4 years.  He also noted the “broad positive responsiveness of [B] and [T] to school counsellor enquiry about their time with the father once they had reconnected with him.”.  He also noted that Dr C had concluded that there was probably a past positive relationship between children and father, which is now disavowed.  He said he thought it likely that the children’s relationship with the father was positive overall but there were some negatives which he thought have been amplified in the children’s current narrative.

3. Another complexity is that notwithstanding E being implacably opposed to any contact with her father, he thought that she was still grieving, years later, from a sense that her father had abandoned her.

4. He thought it likely that the father was drinking alcohol to excess and that the children may have experienced some neglect of their day to day and emotional needs and that E at age 10 may well have stepped into a parentified role including doing a lot of housework.  He said that the father, particularly if intoxicated, may have been more verbally derogative of the mother and more verbally and possibly physically aggressive to the children than he might have been if sober.  He said that the father’s immaturity in denying, rather than facing up to such matters, would have contributed to the difficulties which the children and both parents now face. 

Children’s relationship with each other

1. Dr D observed that the children have a strong bond with each other, know about each other, and encourage and connect with each other.  He said that he felt that each child benefits from the connection with her siblings and would feel a significant loss of identity within the family and of valued relationship, if required to live mostly separate from siblings. 

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

1. The father has not been in any position to be able to participate in any major decisions about the children since the shared-care parenting arrangement ceased in May 2013.

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. This is not a significant consideration.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. Dr D talked about the girls’ immediate wellbeing and sense of security, and emotional containment. He said that all three children had benefited from the sense of resolution that has come from firmly placing themselves with their mother and stepfather in their complex family dynamic and the sense of stability that has come with moving into their nice home with their mother and stepfather in 2013, starting new schools, new sporting circles, new friendships, new extended family and mostly getting on with their new and “better” life without the complexity of dad.  That is, that the children appeared to be enjoying and to value the uncomplicated nature of just living with Mum and being spared from being caught in the partisan disputes between their parents.

2. He thought that E and B would be “significantly buffered from the more long-term pathologising, polarising and destructive elements of the dominant mother-children narrative about the father”, by what he considered to be their solid foundation of memory of their actual relationship with the father over the years until for E mid-2012 when she was aged 12, and for B mid 2013 when she was aged 10, including memory of family life before parental separation.

3. Dr D said that there is a significant likelihood that sometime between age 15 and 25, each of these two older girls will reflect upon this solid foundation of balanced, and he thought probably quite positive, memory of time with the father, and will move towards a more balanced perspective upon their parents and upbringing, and towards reconnection with the father.

4. He was more concerned about T.  He said that T had less of a solid foundation of memory of her actual relationship with the father.  I shall refer to this again below. 

5. In relation to the father’s application that T would live with him initially for six months with no time or communication with her mother or sisters, after which T would spend time with her mother and sisters each alternate weekend and half school holidays, Dr D’s views were as follows.  He thought that for T to be removed from the stability and uncomplicated nature of her life in her mother’s care and her close attachment to her sisters would be a significant disruption of that stability.  He said that if required to live with her father T would be likely to readily connect with her father and pick up their previously positive relationship where they left off.  He said that a “blessing” would be that T would escape from the grief he thinks all three children are feeling about the damage that has been done by the mother’s quite deliberate behaviour in destroying the children’s relationship with the father.

6. But he said T would also experience a lot of grief about feeling disloyal to her mother and uneasiness about the future. 

7. He also said that orders as proposed by the father would not be “strong final orders” because during the six month period the girls would probably try and find ways to make contact with one another.

8. Dr D had various concerns about the father’s proposed period after the six month period of no contact with mother and sisters when fortnightly time with them would commence.  He said a risk was that the family would struggle at this point not to fall back into the messy partisan issues.  So the likelihood would be a return to the conflict, particularly because the mother would feel very much under threat. 

9. On the other hand Dr D thought that if the mother had the security of orders that the children live with her and all the parental authority and the Court made it clear that breaches of orders would have serious consequences for the mother, there was reason to think that the mother would facilitate time under the orders.

10. In relation to the longer term effects if T was not to have a relationship with the father, Dr D said he has various concerns. These include that T would miss out on all the richness that comes from connection with her father and that she would be at risk of taking on a very “black and white partisan and powers of co-ercive processes pattern of relating”.  He said that she is at risk of growing into a person who will enact those sort of behaviours or be very passive and compliant on the basis of others acting such behaviours. He said also there is the impact on herself as believing that she was abused in that absolute way by a person whom she has no connection with.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. 

1. This is not a significant issue in this case.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. There is no question that both parents have been highly involved in the parenting of the children. Both of them were in paid employment throughout their marriage, although at times the mother was employed part time and the father had a few months of unemployment between jobs on a couple of occasions.  Both have been very involved with the children’s education and with their extra-curricular activities. For example, the father took the children to swimming, dancing and piano lessons. His work commitments permitted this because for some years he finished work at 2.30pm.

2. In pre-school years he assisted with their bathing. He shared in the cooking.

3. And of course, the parents managed a shared care arrangement for a couple of years after separation.

4. Dr D said that the mother was providing “good enough” parenting for the three children in all respects other than in their relationship with their father.  He said that it is clear that the children are developing reasonably well in her care.  He said that she is able to adequately meet the children’s basic needs for food, shelter and protection from harm and their intellectual and developmental needs in terms of skills development and adaptation to society’s expectations.  The school reports for E and B are excellent.

5. But the mother has shown herself unable to facilitate the children having a relationship with their father.  As indicated above, Dr D described the mother as emotionally abusive towards the children.  He said that he believes that the mother has the capacity “to make things more civil” in terms of the children having a relationship with the father but said that she has shown no inclination to do so.  He said this is now an ingrained pattern of behaviour by the mother.  He described this behaviour by the mother as “dishonest, persistent and extremely damaging”.

6. Dr D said that in terms of personality strengths the mother can be a proactive, responsible, motivated, productive, independent person, who engages pro socially in society.  He said that the mother shows these strengths now in her work, having been recognised recently with a promotion, and managing her household including the children’s extra curricular activities and keeping an eye on their character development and behavioural standards of tidying rooms, homework, organisation and gaming time.  Dr D also said that the mother appears to be maintaining a positive partner relationship with her partner Mr G and positive relationships with the children in day to day life. 

7. But Dr D said that he is concerned that the mother has a particular area of personality vulnerability related to her inner working model of intimate and family relationships, when it comes to issues of loyalty, divergence of views, or management of conflict or difference.  He said that he thinks it likely that the mother experiences some persistent insecurity about her own adequacy and legitimacy and that this can drive her towards controlling, possessive and defensively aggressive behaviour. 

8. Dr D said that he would view this as a learnt pattern of relating in the mother, which mirrors how the maternal grandmother treated the mother when the mother in early adulthood disloyally connected with the father, and how the maternal grandmother treated the maternal grandfather after their marital separation.

9. Dr D said that he is concerned that these patterns of relating are being passed on now to the girls along with the insecurity of sense of self, contingency and coercion that go along with them. 

10. He said that at the level of intention, the mother has maintained a commitment to the children, and to the responsibilities of parenthood.  He said that in practice her partisan agenda to expel the father from her life has often ended up coming before the needs of the children, although at a conscious level she equates the needs of the children with her own needs in this context. 

11. In terms of emotional needs he said that the mother is able to meet the children’s basic emotional needs for acknowledgement, encouragement and kindness, and basic relational needs in terms of pro-social behaviour towards others.  But he said that the mother has a relative deficit in the area of meeting the children’s more complex emotional needs from reflective and emotionally attuned responses to their complex emotional and interpersonal experiences, and a relative deficit in modelling and enacting relational matters when it has come to adapting to the parental separation, as has been outlined above. 

12. In relation to Mr G, Dr D said that the mother’s partner has not had mental health problems or engaged in self-harm. 

13. Turning to the capacity of the father, Dr D described the father’s capacity to parent the children also as “good enough”.

14. He opined that the father has a generalised anxiety disorder the symptoms of which “are at least exacerbated by and possibly mostly caused by the father’s pattern of excessive alcohol use”.  Dr D described this as “an alcohol-induced anxiety disorder”, which he rated as probably moderate to severe.  The father takes Lexopro mostly for the treatment of anxiety and a small dose of Valium, a calmative, from time to time.  He also uses breathing and thinking strategies to overcome anxiety and panic symptoms. 

15. Dr D said that the father, in his current workplace, is not experiencing a lot of anxiety and is functioning well.  He said that anxiety had not significantly disrupted the father’s parenting capacity.

16. It is not easy to ascertain the father’s alcohol intake.  The father said that he usually consumes alcohol no more than 2 – 3 days a week.  If he drinks beer he would usually consume one longneck.  If he drinks red wine it would usually be 2 – 3 glasses and sometimes 3 or 4. 

17. Dr D recommended that the father undertake a period of abstinence from alcohol.  The father said that he considered this but formed the view that he did not have a problem with alcohol. 

18. A liver function test showed elevated GGT which Dr D said could be indicative of excessive alcohol consumption but can be seen also in persons who are overweight as is the father.  Dr D recommended four tests but the father chose not to undertake these.

19. The mother described to Dr D the father drinking “a bottle of scotch a night”.  The children informed the family report writer and Dr D that the father would drink Scotch Whisky and be drunk.  But in my view it would be unfair to place much weight on this. 

20. Dr D said that the father’s patchy performance in his worklife, his overweight and his raised blood pressure could be markers of excess alcohol consumption over time.    But Dr D also said that during the time that the father had shared care of the children it appeared likely he had a similar pattern of alcohol use but had been able to do a pretty good job of parenting.  Accordingly, Dr D did not regard the father’s failure to address his alcohol use as a critical component in terms of T spending time in his care.

21. In my view, it is unfortunate that the father did not act on Dr D’s recommendations concerning alcohol.  I propose to take a cautious and child-protective approach to the issue of the father’s use of alcohol.  Any orders for time spent will be accompanied by appropriate restraints on the father’s use of alcohol.  Dr D also thought such restraint would be appropriate.

22. Dr D said that in his view the father has a mix of personality strengths and personality vulnerabilities.  He said that the father presented as a man with reasonable interpersonal capacities, who enjoys and can be successful at engagement in play with peers and with the children and with interaction with adults in terms of friends, club memberships, and work in sales or other interpersonal domains.  He said that he showed some thoughtfulness, use of humour and understanding of people and how they work.

23. But Dr D went on to say that his impression was that the father may show some personality immaturity in terms of some lack of resilience in dealing with stress or conflict and a tendency to perceive a work or home situation as unfair or uncaring, rather than to look at what his own contribution might be to some interpersonal tension or dysjunction. 

24. Dr D said that if the Court finds it unlikely that there have been serious or extensive family violence or serious or ongoing violence, neglect or sexual intrusion towards the children, or a severe and functionally disrupting alcohol use disorder then it would appear to him that the father has adequate capacity to provide for the children’s basic needs for food, shelter and protection from harm, and their more complex emotional, intellectual, relational and developmental needs. 

25. As indicated above, the father has a track record of providing substantial care to the children prior to and since separation and appears to have done this adequately.  It also appears that the children have enjoyed living with him and being in his care and interacting with him.

26. As Dr D noted the I Group supervision report of June 2012 and the notes of the school counsellor in 2012 / early 2013 support the father’s adequacy as parent. 

27. Dr D concluded that if the father was the only available parent the children would most likely be best cared for, and adequately cared for, by the father rather than by some alternative carer. 

28. I accept those views.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. This is not significant.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;

1. This consideration is not relevant.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. Dr D said that the mother has quite good parental authority and has been able to be effective in achieving the children doing things.  That is, she has good parental authority.  So he thought that in fact the mother would be able to use her authority to bring about T spending time with the father.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

1. I have referred to this matter above.

Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

1. I have referred to this above.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Dr D was concerned that if the Court was to make orders for T to live with the father it would be likely that litigation between the parents would continue.  This would be because he thought that the parents would be likely to relapse into their pattern of overt partisan conflict.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

1. The mother lives in a four-bedroom home with the usual amenities at Suburb S.  Each child has her own bedroom.

2. E attends U School.  B and T attend W School.

3. Dr D recommended that T be required to spend a “minimum baseline time” with the father until she reaches 14 years of age.  He said this would be time which is regular enough to maintain a thread of connection with, and a knowing of, the father but infrequent enough that it does not compete with the child’s strong anchor in life with the mother, and that any emotional intensity surrounding the visit does not accumulate and come to dominate her life.  That is, there is space for settling and normal self between visits.  He said an example would be one Saturday or Sunday per month.

4. Dr D said that this should permit the father to take T to his residence or that of friends and to engage in ordinary day to day activities.

5. In terms of quantum, Dr D said that the times spent should be short enough such that T would be expected to stay right until the end of the time, even if distressed and resistant.  This would be so that T would understand that she must adapt to a form of repair of her relationship with the father rather than an arrangement where T develops a conscious and unconscious habit of escalating signals of distress in order to achieve a return to the mother.  In that regard Dr D recommended commencing with four hours, then after four visits, increasing to a full day.

6. Dr D said that the clear expectation, which he said should be reinforced by the mother, is that T is expected to be behaviourally compliant whilst with the father, for example to get into or out of a car or to stay inside a building or take a seat if she was opting out of an activity.

7. Dr D said at 492.8 as follows:

   For an initial period of time (at least 3 months, but continuing until the therapist recommends that it can stop) observation of the time (which would initially be half days) by a professional “supervision” agency that provides descriptive reports of the time.  A copy of this report be sent to the father and the therapist, to aid the therapist in assisting the father in this process, and assisting [T] if she has an abreaction to early visits and the mother or [T] are seeking assistance in that context.  I recommend that the mother not be sent this detailed report of the visit, as this will place too much pressure on T.

8. Dr D considered that this (somewhat complicated) process would only work if the mother felt strongly compelled to comply and feared the consequences of not complying more than her displeasure with the prospect of T engaging with the father.  He said that the order that the mother ensure that T engage in the time spent needs to be unequivocal.  The mother would need to understand that the force of the law, in terms of use of its full penalties, would be brought to address any breach of her obligations.  Dr D recommended that from the time when T reaches the age of 14, her time would become at her discretion, that is, her orders would be equivalent to the orders for the older two girls.

Primary Considerations

Meaningful relationship

1. Dr D thought it most important for T to have opportunity to have a meaningful relationship with her father.   He said that he was concerned about T.  He was concerned that she would have less of a solid foundation of memory of her actual relationship with her father.  He thought she likely has no solid recollection of life prior to parental separation (when she was aged four and a half years).  Dr D said that T would have memories of events post-separation until she stopped seeing her father at age 7 but these would likely not be well-connected nor carry the depth of observation and interpersonal context and understanding that come with later childhood.

2. So Dr D thought that T would be much more likely than her two older sisters “to fully integrate into her personal narrative the current shared mother/children narrative, and thus to grow up with a more integrated unbalanced and polarised perspective about the father.”  And he said that T has the additional burden of carrying a belief that her father has intruded sexually upon her, in a way that might have caused bleeding, impregnation with sperm, and abnormalities observed by doctors or on tests.

3. Moreover, Dr D said that T is more likely to carry fear and apprehension about her father and to develop within herself a more elaborated and frightening picture of the father because there is not what he described as the degree of quiet balance from lived experience that is felt by her elder sisters.

Protecting from harm

1. In relation to the second primary consideration, as indicated above, by the third day of the hearing there were no concerns that T or the other children would be at any unacceptable risk of sexual abuse by the father.  Despite the mother having subsequently voiced some recurrence of her concerns in this regard, I could not accept that she genuinely believes T would be at any risk of sexual abuse in the care of her father.  In any event, in my view, the evidence does not support such a finding.

2. In relation to violence, as indicated above, it appears to me to be more likely than not that the children experience a considerable amount of argument including some verbal abuse between their parents.  And there was the incident which involved the police referred to above.  But this should not stand in the way of appropriate orders for T to have opportunity for some meaningful relationship with the father.

Conclusion

1. Dr D expressed the opinion that the safest course for these children would be not to require T to have any contact with her father.  But he said that this would not serve the best interests of T or her elder sisters.  He said that for the girls to miss out entirely on a relationship with their father would be a huge loss for them.  He said that the father is very different from the mother and for T not to have the opportunity of being raised also by him would be a loss.

2. He also said that the girls have been exposed to a somewhat “black and white” model of behaviour.  By this I understood him to mean behaviour in which one behaves as poorly as it takes to achieve one’s own way.  He said that this is the manner in which the mother has tended to behave, probably as a reflection of similar behaviour by her own mother in cutting the mother out of her life for a long period.  But he said that it would be more helpful for the girls to learn that it is better for family disputes to be resolved in shades of grey and learn about how family relationships work and how families resolve conflict other than by the very black and white manner to which they have been exposed in the mother’s home.

3. There was a very strong submission on behalf of the father that if the Court was to place T as living with her father, this would send a very strong message to the mother which would make her more likely to comply with the Court orders which would apply after the initial six month period of T living with her father.  Dr D accepted this but expressed the view that this would be a “high risk” approach.  He said if such an arrangement was ordered the mother might “(double) her efforts to show power” which he said might play out over the following period (with difficulty and distress for T which would be unhelpful).

4. In relation to the longer term impact of T living with the father, Dr D said that a likely return to the ongoing conflict between parents and possible changes of school could cause not only disruption of T’s development (and that of her sisters) but also disruption of her character development in terms of learning about family relationships.  This would cause concern about the children’s future relationships.  He said that if such an arrangement was tried but failed, so that all three children ended up living with the mother, this would send the message to the children that brutal interpersonal behaviour wins in the end.  That is, that even the law of the land cannot stand out against such brutal, dishonest, partisan behaviour.

5. In any event, Dr D did not think the father’s proposal that T’s residence be transferred to him would work for the reasons referred to above.  He said that the father’s proposal to work, it would be necessary for T to have no contact with her mother and her sisters for some years.  He said that this would not be in T’s interest because of the close relationships she has not only with the mother but also with her sisters.

6. As indicated above, Dr D also said that orders that T spend time with the father would only work if the mother feels a strong compulsion to comply.  And he said that it is very important to send a signal to T that the Court considers on the evidence that it is in her best interests to maintain connection with her father.

7. It was submitted by the ICL that the father’s proposal would place all three children back into the partisan dispute which would be very confronting and emotionally difficult for them.  As Dr D said (para 474), if providing time with the father for T or the older girls put them back into the middle of the unsecure “tug of war” between parents, and forced them to recurrently enact their loyalty to their mother, this would be damaging to their mental health and to their relationships with each of their parents.  It was submitted for the ICL that for T to live with her father would confirm the very thing that the girls have expressed fear about namely that their father would take them away from their mother.

8. But Dr D also said that if the mother and the girls were able to be secure in the knowledge that they were able to stay long term in the maternal “camp” living with their mother and having parenting decisions made by her, enforced regular but infrequent time for T with her father would be of great benefit to her but not draw her into the “tug of war”.

9. Dr D thought it would be likely that T in particular, but probably also B and E, if helped or “pushed over the hump” of their resistance to connecting with the father, would likely “soften” quite quickly and connect positively with the father.  He thought that this would particularly be the case if T could see her father without the presence of either of her siblings. 

10. I accept the thrust of Dr D’s recommendations. 

11. I have referred above to the objects of the legislation including that children have the benefit of both of their parents having a meaningful involvement in their lives.  Dr D has opined that it is important for T to have opportunity for a meaningful relationship with her father.  I accept his opinion and agree for all the above reasons that some regular time, sensitively structured, would provide T with opportunity for this. 

12. In my view, arrangements similar to those proposed by the ICL would strike an appropriate balance for T, bearing in mind all the challenges presented as referred to above.

I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 9 November 2016.

Associate:

Date:9 November 2016