Deane and Deane

[2014] FamCA 869

FAMILY COURT OF AUSTRALIA

DEANE & DEANE [2014] FamCA 869

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Allegations of sexual abuse – finding not sought of a positive nature but rather of unacceptable risk –  risk so found – supervised time necessary, possible and supported by wife – allegation of rape not sustained – orders made.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
M v M [1998] HCA 68; (1998) 166 CLR 69
Moose & Moose [2008] FamCAFC 108

APPLICANT: Ms Deane

RESPONDENT: Mr Deane

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8505 of 2012

DATE DELIVERED: 15 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25, 26, 30 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brustman QC with Ms Lane

SOLICITOR FOR THE APPLICANT: Caroline Counsel Family Lawyers

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. All existing parenting orders are forthwith discharged.

2. The children Y DEANE born … 2007 and H DEANE born … 2011 live with the wife.

3. The husband and the wife forthwith do all acts and things necessary, sign all required forms, pay all required fees and attend such introductory programs as may be prescribed at the contact centre nearest to the place of residence of the wife.

4. The children not spend any time with the husband other than as provided by these orders.

5. Unless the parties otherwise agree, the children spend such time with the husband under supervision at a contact centre for such hours and on such days as the contact centre can accommodate and such supervision continue indefinitely.

6. For the purposes of paragraph (5), the contact centre is requested to provide all such time as the resources permit for the husband to have time outside of designated weekends for such occasions as would enable the husband and the children to celebrate Christmas, their birthdays and Fathers’ Day.

7. For the purposes of paragraph (6), the wife deliver the children to, and collect them from, the contact centre at the times and days designated by the contact centre.

8. For the purposes of paragraph (5), the husband and the wife be at liberty to provide the contact centre supervisor with a copy of these orders and the reasons for judgment this day.

9. That save as to the matters that follow, the Wife has sole parental responsibility for the children.

10. Before the wife makes any major long-term decision concerning the care, welfare and development of the children, she shall tell the husband by email of her proposal including details of schools to be considered and the names and addresses of medical and other health professionals to whom one of the children is being referred and give him at least 7 days to consider his position and respond.

11. If the husband responds within the 7 days, the wife shall consider his views and advise him of either her acceptance or rejection of his views and her relevant reasons.

12. That the husband shall be at liberty to attend all school events and functions at which a parent would normally be entitled to attend unless the Principal determines otherwise after consultation with the wife but at all times, the provisions of paragraph (4) of these orders shall apply.

13. That the husband shall be at liberty to attend all medical and health practitioners attended by the children and to be given such information as a parent would normally be entitled to receive but at all times, the provisions of paragraph (4) of these orders shall apply.

14. That if the wife becomes aware of any significant injury or illness of any of the children, she shall advise the husband by telephone immediately.

15. The Independent Children’s Lawyer provide a copy of this order and the reasons for judgment this day to Mr P.

16. The husband be at liberty to provide a copy of these orders and the reasons for judgment this day to any psychologist or counsellor that he attends.

17. The Independent Children’s Lawyer be otherwise discharged.

18. That save as to any issues of costs, all outstanding applications are otherwise dismissed.

19. That should any party desire to seek costs, they do so by written submission filed and served no later than 4 pm on 14 November 2014 and any party receiving such submission shall have 14 days thereafter to file and serve a response and the determination shall thereafter be made in chambers.

20. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8505  of 2012

Ms Deane

Applicant

And

Mr Deane

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In this parenting dispute between Mr Deane (“the husband”) and Ms Deane (“the wife”), serious allegations have been made concerning violence and sexual abuse.  The allegations involved the parties’ two children Y aged almost seven years and H aged three years.  The other allegations include that just before the separation of the parties in January 2012, the husband raped the wife.  All allegations were strenuously denied by the husband.

2. In M v M [1998] HCA 68; (1998) 166 CLR 69, the High Court of Australia set out the test to be applied. The court said:

   19.…In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to "regard the welfare of the child as the paramount consideration" (s.60D)...

   In 2006, the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) were changed such that the reference by their Honours is now contained in s 60CA.

3. The High Court went on to say:

   20.…The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child…

4. As for the allegations, their Honours said:

   21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…

   …

   23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.  

5. In respect of the standard of proof of what findings the Court should make, the High Court said:

   22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

   …

6. Turning to the task of the Court, their Honours said:

   24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare… 

7. In determining what is in a child’s best interest, s 60CA referred to above directs the Court’s attention to s 60CC. The risk of harm referred to has been clearly encapsulated in s 60CC(2)(b) which reads:

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

8. As senior counsel for the wife put to the husband in cross-examination, in respect of the sexual abuse allegations, there were only three people who knew what happened; the husband and the children Y and H.  In this case, I am not confident that the Court can find that the husband perpetrated the sexual abuse alleged by the children.  However, because of the totality of the facts, I do find there is an unacceptable risk of harm to the children unless the husband’s time is supervised into the foreseeable and indefinable future.

9. Sadly, the husband’s family, who perhaps understandably have an unshakeable faith in the husband’s truthfulness, are so partisan that I have no confidence that they would be objective if a significant role such as that of supervisor were granted to them.  They have had that opportunity in the past but the evidence provided by the husband about what role they did fulfil was not satisfactory.

10. It is also important to observe two things about the wife.  First, the husband and his father expressed the view that the wife maliciously made up the allegations even to the extent that there was a denial that the children were said to have made the statements attributable to them.  I reject that.  Secondly, despite her explicit belief in her daughters, the wife still desired that the children have a relationship with their father.  To that end, she wanted them protected from harm.  I accept her evidence about that as being reasonable because, absent the risk of abuse, the husband and the children seem to enjoy a relationship which has strength and enjoyment.  The children do not fear the husband yet the allegations continue.

11. The background facts of the marriage were uncontroversial until its very end at separation.

12. The husband was born in 1968 and is therefore now 45 years of age and the wife was born in 1979 and is aged 35 years.  They married in December 2000.  By occupation, the husband is a manager and the wife, although a professional, is engaged in home duties.  In 2007, the child Y was born and in early 2011, the child H was born.

13. Until the close of the 2011 year, it would seem that the parties lived as a family in harmony.  As the year ended, the husband indicated that he felt “down, unappreciated, unloved” and was trying to come to terms with the loss of his mother who had died that year.  He conceded the relationship with his family had fallen away but he indicated that was really about a problem over the Christmas period in which there had been a dispute arising from his mother’s death.  It was his view that it was more about what was to happen at Christmas rather than the death of his mother.  He thought that it was a relatively short term problem more related to contacting this extended family over that period of time.  However, he felt on Christmas Day that he could just walk out of the lives of his family including his wife and children and no-one would notice.  He conceded that the wife’s family had not been involved in putting him down or contributing to this particular problem.  Indeed, he conceded that the wife’s parents were decent people.  He felt that he had been bottling up his grief and to use his words, his marriage was going down the “gurgler”.  There was no sexual relationship with his wife and his only solace lay with his two children.  As for his relationship with his wife, he said that she had been “going crook” at him for not doing various things.  It was hard to get a sense of just how the husband perceived the cause of his problems at that time.  I find he was a troubled man.

14. In a curious question that he asked (because there was no indication of the problem in his affidavit) he put to the wife that during that same 2011 year, she had rung him at work numerous times requesting that he come home to look after the children.  To that end, the wife agreed.  The husband then asked whether this was due to her incapacity “to cope”.  The wife’s unequivocal approach was that that was absolutely incorrect and the only reason that he had been called at work was because she had a need to call an ambulance or there was an injury to one of the children needing his assistance to care for the other child.  It must be remembered at that stage that H was just a baby.

15. Having received that answer from the wife, the husband did not pursue the issue.  The wife took the issue up in re-examination and gave a number of elaborate examples all of which were plausible.  Rather than indicating that she had been unable to cope, they showed the exact opposite.  To the extent that the husband had wished the Court to draw an adverse inference against the wife, I would do the exact opposite.  All of this seemed to indicate that the husband was the one having the problems consistent with those to which I have earlier referred.

16. When the husband gave evidence, he did not elaborate on the problem.  I am left with a clear picture of the wife managing two young children and, as 2011 drew to a close, the husband was anxious, sad and not contributing much to family life.  It was in that setting that Christmas Day came and went and very quickly thereafter, the relationship between the parties ended.  That gave rise to a number of issues over the ensuing days after Christmas that led to the physical separation.  I deal with each of those issues in turn.

17. The allegations of the wife are serious. They fit into three categories as follows:

    (a)That the husband assaulted the child Y by throwing her against a wall;

    (b)That the husband raped the wife; and

    (c)That the husband sexually abused both Y and H.

18. Senior Counsel for the wife opened the case on the basis that, save for the assault on Y mentioned in (a) above and the rape of the wife, this was not a case in which the Court was being asked to make positive findings about sexual abuse. He submitted that the Court should find on the evidence that in respect of those allegations, there was an unacceptable risk of harm to the children. For different reasons, the Independent Children’s Lawyer agreed with that approach. The husband maintained a denial in respect of all three categories of complaint.

19. Counsel for the Independent Children’s Lawyer submitted that there was a need for supervision of the husband’s time with the children because the wife was utterly convinced of the children’s versions of events and as they were to continue to reside with the wife, more allegations would likely come.

20. Senior Counsel for the wife submitted that there was an unacceptable risk because of what had happened to the children and what would possibly happen if there was no supervision.

21. Little was said about the burden of proof and the requisite standard of the Court’s satisfaction about the allegations. The husband seemed to understand the standard of assessing the unacceptable risk to the children and that the allegations were to be proved on the balance of probabilities. That is a well-worn phrase and it requires consideration in a case as serious as this.  The husband’s understanding arises because, although without legal representation, he had been through (or partly through) two criminal prosecutions where the Crown did not proceed because they could not prove their allegations based on the limited evidence available.

22. Section 140 of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. There is a caution to that statement found in subsection (2) which provides that without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

    (a)the nature of the cause of action or defence; and

    (b)the nature of the subject-matter of the proceeding; and

    (c)the gravity of the matters alleged.

23. The nature of these proceedings is an inquiry into whether certain events occurred which affect the welfare of children and whether, based on those findings, there is an unacceptable risk of harm to them. There are grave consequences for the children as well as their parents arising from these findings about behaviour which is completely inconsistent with the very nature of a parent and child relationship.  A finding of sexual abuse but also a finding of unacceptable risk have damaging consequences for parents and their reputations but also for children whose relationships with the affected parent must be limited and monitored.  A natural and free relationship is often not possible.  This is such a case.  

24. But how should the Court approach the determination of these findings in the light of those consequential and significant restrictions on a parent and child relationship?

25. In Briginshaw which was the forerunner of s 140 of the Evidence Act, (and mentioned in paragraph 5 above) the Justices of the High Court of Australia discussed the concept of the distinction between the criminal law standard and the lesser burden in civil cases. They agreed there was a difference because of the words used in the legislation they were contemplating. Those words were: “it shall be the duty of the court to satisfy itself, so far as it reasonably can”. The current standard of “balance of probabilities” can be seen in those words.

26. Latham CJ said there was no mathematical scale according to which degrees of certainty of intellectual conviction could be computed or valued but there were differences in degree of certainty which were real. The Chief Justice cautioned that:

    No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.

27. I have already referred to what Dixon J said but it bears repeating more fully:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. 

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. Rich J said:

   The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.

2. Starke J added that civil causes may, not must, be decided on a balance of probabilities. That description has now been overcome by the Evidence Act.

3. Therefore, the important considerations in approaching the balance of probabilities test are that the Court must be comfortable beyond mere suspicion, surmise or guesswork and the correct and just conclusion can only be arrived at after a close examination of facts proved by direct testimony and reasonable inference. As the outcome urged by the wife has very serious consequences for the children, particularly having regard to s 60B of the Act, the level of satisfaction should also be produced by clear evidence and plausible inferences. I am satisfied in this case that what follows satisfies those requirements.

The husband throws the child Y against a wall

1. Of the three categories of incidents, the first was perplexing.  Because there were final parenting orders agreed between the parties in 2013, some of the issues that occurred prior to those orders were not included in the wife’s trial affidavit in 2014.  The husband said generally, in relation to allegations by the wife, that in so far as allegations were made against him about Y, the police “withdrew the charges”.  When cross-examined, the husband denied “tossing” Y but acknowledged that he was interviewed by the police who charged him with an offence of assault but that they ultimately “dropped” it.  Senior counsel for the wife put to the husband that his view was that this allegation was “all made up” and the husband agreed.  It was then put to him that it was “ridiculous” to say that he had ever acknowledged having assaulted Y and again he agreed.  He acknowledged that when interviewed by the police, he made a “no comment” record of interview.  It seems that as the matter progressed through the Magistrates’ Court, a summary case conference was held at which he attended represented by a lawyer.  To senior counsel’s cross-examination, the husband denied ever making any admissions but was unable to explain how police records showed that during the pre-trial conference, he had conceded that he threw his four year old daughter after “she jumped onto his testicles while playing”.  He was said to have told the police that he had no intention of assaulting his daughter and the police reported that as a consequence of that, there were “minimal prospects of conviction”.  The police authorised the charge to then be withdrawn.  In cross-examination, the husband was adamant that he had not said those words and more importantly, that he had not changed his story.  On the balance of probabilities, I find he did and he has.

2. A significant piece of evidence about what occurred that day came from the wife.  The husband asked her in cross-examination why, if she saw him throw Y, she had not gone to the doctor.  She gave the plausible explanation that they each discussed what had happened at the time and that Y seemed fine.  The husband cross-examined no further.  However, when he completed his evidence, he volunteered that there had been an incident in which Y had jumped on his testicles and he had rolled with her and she hurt her shoulder.  Throughout the proceedings, he was at pains to point out that Y had made references to hitting a wall and a fireplace but maintained that none of that had occurred.

3. The child Y was interviewed by the Department of Human Services and the evidence from that interview was contained in the “Magellan report” admitted into evidence by virtue of s 69ZW of the Act. In the interview which took place on 13 January 2014 in the absence of her mother, Y told the interviewer that the husband had thrown her “in the wall, fire place and the TV cabinet”. The writer of the report who was not required for cross-examination said the following:

   [Y] was spoken to further about this and she spoke at length about the incident in which she was thrown against the wall but she could not remember any details of the other incidents. (My emphasis)

4. The only inference open to me is that Y was clear and unequivocal about the incident of being thrown against the wall even though she may not have remembered other matters.  In a subject that I shall return to below, there was no indication in any evidence from any expert that Y had been coached, manipulated, enticed or inappropriately cross-examined by any person to obtain the statements she made.  There was no evidence that Y, in January 2014, was not able to remember an incident that occurred in January 2012.

5. The approach that the husband took to the criminal law proceedings at the time of police intervention was to simply make no comment in circumstances where he must have known that the only person who would otherwise have given evidence was the wife.  He did not explain his position other than that he had had legal advice before he was interviewed.  If it was as simple and plausible as he proffered in re-examination, why did he give such an explanation as the one that he gave in re-examination?  Having said no such incident occurred, why make reference in re-examination to Y jumping on him in a way that was consistent with the denied police report?  I am very conscious that the husband had every citizen’s right of silence but it must have occurred to him that if he ultimately had to give evidence about what did occur, his silence would provoke an accusation of recent intervention particularly where he had had legal advice at the time.

6. When considering the evidence of the police withdrawal report, I accept that the officer who took part in the conversation and any relevant lawyer who may have appeared for the husband, were not called for the purposes of cross-examination on that evidence. The husband was unable to explain how that report could have been so inaccurate having regard to his version that he never made a statement to that effect. The probative value of the statement, based on its admission into evidence because of s 69 of the Evidence Act, lies in the fact that it was the husband who volunteered in re-examination that Y had jumped on his testicles. In his re-examination, the husband went on to acknowledge that Y had hurt her shoulder but that had occurred when he rolled with her.

7. I find that an incident did occur in which Y was thrown by the husband and the precise details of what occurred do not matter.  The truthfulness of the husband and his reticence to tell the whole truth about what occurred puts his truthfulness in doubt.  Bearing in mind the unprompted statement of Y to the Department of Human Services, I find that the wife’s version of what happened to the child that day is the more probable one.

The rape of the wife

1. It was the wife’s evidence that in this difficult period between Christmas 2011 and the separation in January 2012, the husband raped her in the master bedroom of the family home.  He was charged by police and committed for trial.  The wife’s evidence was tested in the Magistrates’ Court committal hearing but that evidence was not put before me nor did the husband endeavour to use it in cross-examination of the wife.  The husband’s response to the wife’s allegation was that he denied ever behaving in an “aggressive manner” towards the applicant.  He incorrectly said that the applicant laid a charge of rape against him but I understood him to mean that it was police who had done that.  The proceedings were ultimately discontinued after his committal to the County Court of Victoria.  In his affidavit, he said: “The charges were in fact withdrawn because of lack of evidence”.  As was observed by senior counsel for the wife in final address, the absence of evidence does not mean that the incident did not occur.  I agree with that summation.  As with all prosecutorial matters, the Crown has to decide whether or not it can establish its burden of proof beyond reasonable doubt.  No explanation was given other than the fact that the discontinuance occurred and the husband’s statement has to be viewed with some scepticism.  Whilst he said there was a lack of evidence, this Court certainly had the evidence of the wife.

2. When the husband was cross-examined, he responded vehemently that he did not rape the wife.  He said that had not been in the bedroom on that day because he was on the couch with H trying to settle the child who had just been breastfed by the wife.  This was an unusual answer because in the committal proceedings at which the wife was cross-examined, it would seem that that question was never put to her.  At least the husband could not remember it but senior counsel for the wife cross-examined the husband on the basis that he was reading from the transcript and the husband did not deny it.  The husband told the Court after being warned about his privilege of confidentiality, that he told his lawyer on that day what occurred that night.  He was adamant that he did not have sex with the wife on that night and it appears that there was no sexual intimacy thereafter. 

3. I am very conscious that this case is about the welfare of children and the focus has and continues to be on the question of any risk to the children in the husband’s care. The question of any sexual impropriety can only be relevant to the issue of credibility of both parties and the question of violence between them. Family violence is a relevant issue for the purposes of s 60CC to which I turn below. Whilst the wife bears the onus of proof and the standard is the balance of probabilities, for the reasons I set out earlier, I am not prepared to surmise or guess as to exactly what happened that night when the wife said she was raped. The parties continued to live under the one roof for some time thereafter and it was not until July 2012 that any application for an intervention order was sought by the wife. Notwithstanding my concern about the wall incident, this is not a case in which I would be prepared to make a general finding of lack of credibility by either party such that I could determine the wife’s allegation simply based on the preference of one version over another. In respect of this incident, I am not prepared to make a finding that the husband raped the wife.

The allegations of sexual abuse

1. In June 2012, by which time the parties had been separated for six months, the wife said that Y demonstrated to her what she called “exercises” that the husband did with her when in his care.  The wife’s description was of the child gyrating groin to groin whilst lying on top of her.  Inquiries by the wife of the child indicated that some of these exercises occurred at the husband’s home but that they had also been done prior to separation.  Y said that they occurred when the wife was at church.

2. The wife took Y to the police where she was interviewed and later that night, the wife said that the child told her that the husband had put his hands in the child’s pants and inserted his finger into her vagina.  This resulted in further contact with the police who then arranged for a forensic examination at the Victorian Forensic Paediatric Medical Service at the Royal Children’s Hospital the following day.  There is a conflict in the evidence about the findings of that examination.  The wife said that there was no physical evidence that the husband had digitally raped Y but they did identify a scratch or cut in her mouth consistent with Y’s statement that the husband had hurt her mouth with his finger.  The conflict arises because the Department of Human Services’ statement indicates that the examination did not reveal any abnormalities and the allegations could not be supported or refuted by the forensic examiner.  The wife was not challenged about this particular incident so it seems probable that her version is correct.  Added to that however, the police then followed up the interview with Y and arrested the husband.  That occurred the very same day as the examination of the child.  Throughout his evidence, the husband indicated that at no stage had he ever sexually or physically assaulted either of his children.

3. When the cross-examination of the husband began, he maintained that his children had not made the statements alleged.  He altered that moments later to indicate that if they were saying it, he had to accept that that was so.  That must be the case bearing in mind that statements have been made to other sources including the wife’s mother who gave evidence in support of her daughter.  The maternal grandmother’s evidence was not challenged by anybody.

4. Consistently, the husband was unable to give any plausible explanation as to why the child Y might say what she did.  He made no denial of the wife’s evidence that the forensic examiner saw a cut in the child’s mouth from which the wife concluded that it was consistent with the allegation that the child made.

5. When the husband was interviewed by the police, he said that the incident could not have happened because the children were in the one room and as a consequence, they would have either been aware of each other or, at least have said something to each other.  It was put to the husband that the children were not in the one room until Christmas Day immediately prior to separation.  It was the wife’s case that Y’s sleeping arrangements were altered on Christmas Day and she was moved in with H but up until that time, the children were in separate rooms.  It was put to the husband that he had been conscious of the fact that an allegation had been made by his daughter that he had sexually assaulted her in her bed and that he was looking for an alibi to show that that could not have happened.  The husband maintained that the children were not in the one room from December 2011 but earlier.  He thought that it was October.  There could be little confusion about that simple event because of the reference to Christmas Day.  I take into account the vagueness of the husband’s evidence about the date but also the fact that around this time, he was distracted, unwanted and not himself.  I accept on the balance of probabilities that the wife’s version about the bedroom changes is more likely.

6. During this time, proceedings were on foot in the Federal Magistrates Court and in September 2012, further allegations were made by the wife (said to have been made by Y) that the husband had “kissed and sort of licked” Y’s vaginal area with his tongue.  Ultimately, the police chose not to do anything about any prosecution and the husband’s position was that all allegations against him made by the police had either been discontinued or “withdrawn”.  The husband seemed to take some comfort from the fact that there was, in his view, no evidence against him but I accept that having regard to the ages of the children and the lack of corroboration of any of these events, the police had little choice but not to proceed. 

7. In the middle of 2012, because of the allegations relating to the children, the wife was granted an intervention order against the husband and both children were listed as affected family members.  That order was granted for one year on 6 October 2012 and was later extended for a further year and is soon to expire or has already expired.  The husband’s position was that he was very suspicious about contacting the wife with that intervention order extant but in any event, senior counsel for the wife made clear that the wife intends to seek an extension.

8. The proceedings begun by the husband in the Federal Circuit Court were transferred to this Court in October 2012 because they were deemed to be part of the Magellan assessment.  As a consequence, in addition to the benefit that the Court then had of the Department of Human Services involvement, there were also examinations of the husband by Dr E and also the involvement of psychologist Mr P to whom I shall turn later in these reasons.  Dr E assessed the husband as unlikely to have sexually abused Y and Mr P felt the same way.  That culminated in orders being made by this Court by consent of the parties.  The wife’s explanation for the consent to those orders in 2013 was that the time was to commence on a graduated basis and build up until eventually the children were to spend four nights a fortnight with the husband in July 2014.  Orders were also made for the wife to attend counselling with Ms S and to follow her recommendations.

9. To all intents and purposes, those orders were final and the parties should have then moved on with their lives.  However, further allegations then surfaced. 

10. Only weeks after the final orders were made, the child H told the wife that the husband had “touched her bottom”.  The wife took the allegation seriously but acted cautiously and rather than go to the police, went to the Ms S.  She deferred to Ms S’s advice.  During that period of time the husband’s contact with the children was to have been undertaken with either of his sister Ms C or his sister Ms N being in substantial attendance up until 31 August 2013.  The wife said that Y told her that on a number of occasions she was uncomfortable because she was alone with the husband.  The child expressed concern that the husband would go into their room at night and hurt her sister H.  Again, the wife went to see Ms S to discuss those issues and took her advice.

11. By the end of November 2013 there were behavioural problems with H which the wife was unable to explain and on 3 December 2013, H said that the husband had put his finger inside her genitals.  The wife asked when this had happened and the child said that it had occurred whilst Y had gone to the toilet at the home of the husband.  The wife then described H simulating what had occurred and there was a remarkable similarity between the conduct described by H and that which had been described by Y a year or so before.  Y was present during this discussion and commented that it could not have happened because Y had only been in the toilet and away from H for a short period of time.  According to the wife, Y then asked:

    Did he use his tongue too?

    The wife said that H replied “No, just his finger”.

12. This discussion took place only in the presence of the wife.  There was no corroboration of it by any other source.  Albeit that the husband was without legal representation, he did not challenge the wife at all about this particular incident.  However, he said that in response to the wife’s allegation which he had read in her affidavit, he maintained a diary of events and that on the day referred to by the wife, H had a “big day playing with cousins and had become irritable”.  Apart from denying that he would ever behave inappropriately with his children, he simply referred to the diary entries.  Thus I am left with the perplexing problem of trying to work out whether he was disputing the particular facts that might have given rise to the situation as alleged by the wife.  He did not say that there was any situation in which the children were separated while Y went to the toilet.  He did not say that there was no occasion on which he was alone with the children.  He did not say whether or not his sister was present and undertook the responsibilities of the toileting of Y and/or H.

13. When he was cross-examined by senior counsel for the wife, the husband acknowledged that he did not see the wife as a person prone to lying.  In fact, he described her as a religious person.  His mantra throughout the proceedings was that he could not explain why it was that the children were saying what they were.  Most importantly, he did not point to any evidence from any expert to indicate that these children had been coached, manipulated or bribed in such a way that such a statement might be made.  The significance of this event is that on the basis that I accept that the wife accurately reported what was said, I must find that both children participated in the discussion.  Something happened but just exactly what, remains a mystery.

1. In his affidavit to which I have referred, he made reference to the children playing with their cousins.  No evidence was led by the husband about what occurred that day that might give some insight as to why this all occurred. 

2. As a consequence of the statements of the children, the wife terminated the husband’s time and an application was filed in this Court to suspend the orders that had been made in June 2013.  The hearing came before Senior Registrar FitzGibbon on 18 December 2013 at which time the husband was represented by counsel.  Pragmatically or otherwise, on that day, the husband consented to orders that his time with the children be supervised (as distinct from requiring the persons to be in substantial attendance).  The supervisor was to be a professional person.

3. Shortly after the allegations had been made in early December 2013, the wife attended on police to indicate what the child H had said.  The Department of Human Services reported that the wife told uniformed police that she had taken H to the general practitioner where the child was examined and the doctor had discovered that H’s “hymen had been ruptured”.  The Department expressed concern that the wife had not mentioned that to the specialist police squad undertaking the investigation.  The allegation of the wife having made that statement to uniform police was put to her in cross-examination by counsel for the Independent Children’s Lawyer.  The wife denied ever making such a statement.  Importantly, no evidence was led of any examination by a doctor under which such a statement was made nor was any evidence called from a police officer or any file produced under a subpoena, to indicate that such a statement had been made.  Absent the leading of such evidence, I am very cautious about making any adverse finding against the wife in circumstances where she bluntly denied having said it. 

4. The Department of Human Services involvement in December 2013 occurred on more occasions than one.  At no time did the child Y make a statement that gave rise to any concern by the Department.  In January 2014, Y was interviewed by the Department of Human Services and it was at that time that Y volunteered the evidence about being thrown by her father.  The Department was not able to elicit any details of any other incidents.  However, the worker from the Department then asked Y whether there as anything “not so good with Dad” and the child reported:

   He did something disgusting.  He did some exercises without clothes on and he quickly put his clothes on when he heard a car that sounded like Mum’s.

5. The worker endeavoured to ascertain from the child just what these exercises were and Y demonstrated by holding herself by the waist and wriggling her hips backwards and forwards while sitting on the chair.  The remarkable and concerning aspect of that demonstration was that it was consistent with the evidence of the wife of what had occurred to her with Y quite a long time before.  The child told the worker that the husband had thought he heard a car and went back to his room and put his clothes on.  Y then described that this incident occurred when the wife was at night church and H was asleep so it must have occurred prior to the time of separation.

6. Undeterred, the Department of Human Services worker then sought further indications from Y as to whether there was anything else that concerned her about her father and she made reference to the fact that H had said that there was something disgusting that had been told to her and her mother whilst sitting on her mother’s bed but she was unable to remember exactly what it was.

7. The disconcerting part of this evidence is the use of language.  The child L aged six was describing “disgusting” things.  Again, no evidence was put before the Court to indicate that the child had been manipulated or that she was not old enough to be using the language described.  The Department of Human Services certainly did not indicate that they thought Y had been manipulated.

8. The Department of Human Services officers then spoke to Ms S who confirmed that the wife had contacted her about the allegations that H had made and she had advised the wife to “slow down and not overreact and to put things into context”.  Ms S told the Department that she thought that the wife had challenged Y about whether or not things said by Y had indeed occurred and that the wife was following her advice. 

9. The Department then spoke to the husband who denied the allegations and could not give any explanation as to why Y might say that he was naked in her bedroom. 

10. The Department of Human Services’ file shows that when the husband was interviewed, he indicated that at the time that the last contact occurred in November 2013, he was never left alone with H but at the same time, he did say that he had taken the children together shopping.  He produced no detailed evidence about all of this.

11. The uncharacteristic behaviour of H in December prompted the wife to attend her medical practitioner.  According to the wife, the child made statements about what her father had done but the doctor simply said that the matter should be investigated by the police.  In the meantime, the doctor ordered tests to assess whether H had a urinary tract infection.  The discussions with Ms S were in the knowledge that the tests had been taken but their outcome was not then known.  It was Ms S who suggested that the wife wait for the outcome of those tests.  Ultimately, they came back clear.

12. Throughout 2014, further statements were made by the children including relating to periods when the children were with the husband at a time when, under the orders, they should have been supervised.  The wife queried the children and was told that neither the husband’s sister nor father was present.  On a subsequent occasion, Y told her mother that she had fallen outside the house whilst climbing on a slide and had hurt her arm.  The child told the wife that the husband was there with them but that her grandfather was inside cooking.  The child’s aunt was not there according to Y because she was at work.  The husband responded to these allegations by insisting that his time with the children was always supervised by either his father or either of his sisters.  He then asserted that the words used by the wife were a “fabrication”.  He again denied that he had been sexually inappropriate with the children.

13. However, in relation to Y being hurt on the slide, the husband agreed that she was hurt as she described and in relation to his father, the husband said that he was watching the girls through the kitchen window overlooking the backyard.

14. This is another example of the disconcerting accuracy of the reporting by the children.  Throughout his evidence, the husband said that the wife had made the statements up or fabricated things and that included the complaint by the wife of lack of supervision.  However, there is no doubt that Y reported the slide incident, hurting herself and her grandfather being inside cooking.  The accuracy of these statements as reported to the wife, combined with what seems to be a very clear recollection by Y of a variety of events, is very concerning.

15. In relation to the accuracy of Y, whilst investigating the protective issues, the Department of Human Services expressed concern about the inconsistency in Y’s statement about the “exercises”.  The child reported that she was told at kindergarten to do the exercises so she could be in the kindergarten concert at the end of the year.  The child reported that she and her father had their clothes on when they did the exercise.  The Department was concerned that the complaint by Y was that the exercises were occurring at a time when the child was with her father under court orders but she also seemed to be referring to the incident I have earlier mentioned that was said to have occurred at the home where the parties lived together.  Y told the Department that the exercises were something that she had learned from kindergarten.  The Department raised concerns as to what the child had reported was valid having regard to the inconsistencies. 

16. Ultimately, the Department of Human Services said that the repeated nature of these statements caused concern.  They were unable to substantiate any concerns.  What that does not explain is why the statements were consistently made.

Mr P

1. Mr P is a clinical psychologist who was engaged to provide an expert report to the Court.  He filed his affidavit through the Independent Children’s Lawyer in April 2014.  No party required him for cross-examination.

2. Mr P had prepared a report for the earlier proceedings which culminated in the orders of June 2013.  He spoke to the wife who gave a vivid description of all of the problems including the allegations.  When the husband spoke to Mr P, he indicated his dismay at the allegations particularly having regard to the fact that he had taken the precaution of always having a family member present and one of his sisters was always present at times of toileting and bathing.  None of those sisters gave evidence in these proceedings.  Indeed, one of the sisters had, no doubt at the request of the husband, filed an affidavit on his behalf in which she was very supportive of him.  On the first day of the hearing, the husband indicated that he was not relying on that affidavit.  It became a subject of some controversy.  It transpired that the husband had not spoken to his sister about not giving evidence but had unilaterally chosen not to call her.  No adequate explanation was given for that.  The husband’s statement was that he had been conscious of the help that he had received from his family including his sister.  The sister had apparently only recently joined the Victoria Police and he felt it inappropriate to impose upon her to come away and attend court.  It was put to the husband that the statements by his sister to Mr P and the Department of Human Services were all supportive but the wife was making an allegation of the absence of the sister despite her responsibilities to supervise.  The wife made the allegation and the husband well knew it was a controversial issue.  It is hard for me to accept that the sister would not have been able to be called away from a training program in such a serious matter as this.

3. At the time that Mr P saw the husband, he was contemplating proposing that the children live with him.  He made clear to Mr P that he thought the wife had no awareness of the enormous trauma she had imposed upon the children and the damage that was being caused to them emotionally.  That statement is entirely inconsistent with the husband’s concession in evidence that the wife was not a person prone to lying and his further statement that he thought perhaps the children were making all of this up.  That too was inconsistent with paragraph 17 of the P report in which the husband said that he genuinely doubted whether H had said anything of a sexual nature to her mother at all and there was nothing about H’s behaviour to suggest even remote discomfort.  All of that now has to be seen in the context of the wife being the unchallenged future carer of these children.  When asked why the husband had changed his position, he indicated that he had to work.

4. Mr P saw no reluctance on the part of the children who approached their father with ease, confidence and certainty.  They showed him an abundance of physical affection and conveyed no hesitation around him.  The husband’s behaviour too towards the children was unremarkable.

5. When Mr P interviewed Y, the child told him that while she saw her father on Saturday and Wednesdays, her aunts and her grandfather were always there watching to make sure that her father did not hurt them. The child had a very clear understanding of what was being said about her father.  That said, Mr P noted that Y was not worried or concerned about her father but that the child understood that her mother was concerned.  Mr P clearly examined whether or not Y had been coached.  He said:

   [The child Y] seemed aware of some of the details, explaining that her mother did not tell her or [H] what had happened because the police had told her that she was not allowed to.  Gentle probing around these matters produced nothing of significance; in reality, [the child’s] presentation was unremarkable.   

   Mr P then said that one could only ponder what was communicated to the children about their parents and their respective families.

6. Mr P opined that it was extremely important to corroborate whether the supervision as described by the husband his family occurred at the level of diligence they claimed.  It is with reluctance that I find that it has not been as diligent as it could have been.  I make that finding on the basis of a number of matters including that the evidence of the husband’s sister Ms C was not available to be tested.  It was not so much that she as unavailable or unwilling, I find she was not even consulted about the issue.  For someone who no doubt is entering into a career in law enforcement, one would have thought that she would have been very keen to be involved.  Further, I find that whilst the husband’s father was certainly looking through the window whilst cooking, I am left with the impression that there may have been other occasions when the closeness of the supervision was not great.  That is particularly so when the relationship between the paternal grandfather and the wife is poor.  He described her in evidence as “evil”.  He made clear to the Court that he did not accept that there was any foundation for the allegations against his son.  It is understandable that families would stick together and would find the allegations against one of their own as revolting.  But the grandchildren too are part of that family.  The lack of objectivity and the absence of the sister makes me unsure as to whether the supervision was diligent.

7. Mr P was referring particularly to the diligence of supervision around the children’s toileting and general hygiene but the allegations of the children persisted during that period of time and there is the very unusual description of Y relating to the events that may or may not have occurred prior to the separation when her mother was at church.  The preciseness of the detail about her father being naked and hearing a car and scurrying away to redress, adds to the intrigue.

8. Mr P found no reason to believe that the wife was not reporting accurately what her children had said.  Obviously, Mr P was not in a position that I have been in where the evidence has been tested.

9. Mr P said that when dealing with very young children it was difficult to assess the accuracy.  He saw nothing to support the concerns of the wife.  He noted there was nothing particular about the children’s behaviour other than that which had been reported by the wife which was of concern.  What concerned Mr P was that the allegations continued to be raised and because of the ages of the children, it gave rise to the very real risk of them being consolidated as fact even if they were not true.  It concerned Mr P that the children may come to believe that their father was the perpetrator of the abuse that they believed had happened to them and that there was commensurate emotional and psychological fallout as well as implications for later psychological interpersonal functioning of the children.  I accept that but it must be weighed against the issue of risk.

10. Mr P opined that the matter needed to be treated carefully and thoroughly.  Much of the evidence of the wife has only been peripherally tested but as I observed in the hearing, there was no indication that the allegations were not made by the children nor was there any indication that the wife had manipulated the situation in some way despite the criticisms of the husband and his father.  Mr P was concerned about the serious consequences if it was found that the wife continued to pursue “false beliefs” to the detriment of the children if there was compelling evidence that what the children had reported to her could not possibly have happened.  It is that sentence that troubles me.  On the balance of probabilities, I find these things could have happened.

Conclusion about the facts

1. In addition to the more precise matters mentioned above, there was considerable evidence that was not tested by the husband.  I cautioned him and explained the testing process.  He said he had been given legal advice and assistance but admitted he had been told he would not have to question his wife.  When I disavowed him of that view, he had some time to collect his thoughts and write out his questions.  His cross-examination was still perfunctory.  Much of the testing of the wife’s evidence was left to counsel for the Independent Children’s Lawyer.  I have dealt with some of the more explicit issues but there were others.  The following observations can be made from the evidence including in addition to the matters set out above:

   ·The allegations continue to be made even after supervision orders were made;

   ·There is the evidence of the consistency between the description by Y of what her father did with his fingers and the scratch inside her mouth;

   ·The child’s description of what the husband did was age appropriate and the child’s reporting of the husband saying that no-one was to be told because he would go to “gaol” is not something that I accept a child could make up.  It is an adult concept.  There is no evidence that this child was “schooled” and there is no evidence that I can find to suggest that the wife just made up these allegations;

   ·I have the evidence of the maternal grandmother which is consistent in detail with what the child said to her mother and concepts again of an adult nature which are inconsistent with child fantasy;

   ·The evidence of the demonstration of the “exercises” in the absence of schooling was consistent with what the child told her mother when she was asked to explain what she was doing;

   ·There is the evidence of the children speaking about where each of them was relating to Y being in the toilet but each acknowledging conduct on behalf of the husband which related to sexualised behaviour involving the husband’s tongue;

   ·There is the evidence of H telling a doctor what had happened to her;

   ·There is the consistency in each girl of the nature of the allegation of digital penetration followed by what senior counsel described as the husband “licking” his finger.  The wife gave evidence that this conduct had also been observed in her personal relationship with the husband much earlier in their respective lives.  This too shows a pattern which, if the allegations are not made up or coached, must be seen to have a ring of reality about them;

   ·The consistency of the allegations which rarely seemed to vary except in relation to the description by Y about conduct before or after separation may very well be explained by Mr P’s view that the children have come to think of these matters as fact but the husband conceded that he did not know how they could continue to tell such vivid stories.

2. For the reasons earlier articulated, it is not appropriate that a finding be made that these events did occur but it is conceivable that there is no other plausible explanation as to why the children would make these things up.  No motivation was put before the Court as to why the wife would say these things other than Mr P indicated that there was some “overlay” between these allegations and the wife’s own experience of her allegation of sexual assault by the husband.  In my view that might be a plausible explanation to explore but the husband did not do so and there is no other evidence to indicate that the wife has some motivation.  One might expect a person in the wife’s position who believed that her children were being sexually abused, to strongly resist any contact at all.  She was challenged about that in cross-examination and I accept that she genuinely believes that absent this conduct, the husband has much to offer the children and they enjoy his company.  In her view, that time needed to be supervised and the children would otherwise enjoy the benefits of a relationship.

1. Examined from the opposite perspective, for the wife to perpetrate such a monstrosity on her own children would require significant planning and almost indoctrination of the children.  Apart from the husband’s statement that the children have told him that their mother says these things, there is no such evidence.  These children have been interviewed by many people and Y has undergone medical examinations.  It would be impossible to expect that she does not understand there is a dilemma.  She clearly told Mr P that her father’s time with her was being supervised to prevent her being hurt.  I accept senior counsel’s submission that it is not possible for the Court to accept that the wife simply made this up.  In addition, it was not the Independent Children’s Lawyer’s position that the wife had made these allegations up.

2. There were some minor matters which add to the intrigue of how truthful the husband was.  In brief, those were:

   ·the throwing against the wall incident indicated that the husband had the perfect opportunity right from the outset to indicate that it was an accident.  He did not do so and his version only emerged in his own re-examination;

   ·there is the evasive response about his own unilateral action in not calling his sister who could clearly have answered questions about just how much time these children were alone with the husband;

   ·over a simple incident relating to a text message from the wife to the husband, he was challenged about whether or not he could produce the response he sent.  He was emphatic that he had responded but was unable to produce that response on his mobile telephone.  He broke down in the witness box murmuring that it was not there.  He subsequently said that he found the messages but they were never accepted by the wife as having been received.  It was not a decisive issue nor one that went to the husband’s credit but the stressors of the proceedings as indicated by his distress in the witness box suggest that he is constantly vigilant about criticism of his role as a parent.  During the proceedings, when I suggested to the husband that he needed an alternative proposal if I found there was an unacceptable risk, he bluntly said that he would walk away from the lives of the children.  It was only after encouragement that he thought about that and changed his mind over the ensuing days but his impetuosity was concerning.

3. Whilst I accept there is insufficient evidence to make positive finding that the husband has done what has been alleged against him out of the mouths of the children, the totality of the facts indicates that absent some close monitoring of the children in his presence, they are at risk of abuse and I find that risk unacceptable having regard to the nature and extent of the allegations. 

Supervision

1. The Independent Children’s Lawyer and senior counsel for the wife both promoted future time to be supervised and in discussion with the husband, he reluctantly accepted that it was probable.  His view initially was that it should be for six months but after discussion, he conceded that H would still be very young and vulnerable and that it should be much longer.  Sadly, the husband came to court (for the purposes of final address) with two women whom he had said had offered themselves as those supervisors.  When I stood the case down for the purposes of some discussion between the parties about whether or not those people were suitable, it appears that they withdrew their support.  In discussion also, senior counsel for the wife indicated that his client was prepared to do two to three hours per fortnight but after contemplation, that too was withdrawn.  The wife’s initial position was that there should be supervision by a professional agency but the reality is at the estimated cost of $80 per hour, that prospect must be seen as limited, if not unlikely, having regard to the limited financial circumstances of the parties.  The husband was criticised at some length in cross-examination about the fact that he had acquired a home in which there was no equity because of the extent of his borrowing.  The commitment to the mortgage apparently takes up a significant part of the husband’s wage.  Accordingly, a “professional” supervisor seems unlikely.

2. The parties were otherwise unable to come to an agreement as to who should be the appropriate person.  That is a matter that they can continue to deal with in the future.  At this stage however, limited as it may be, the only alternative I can consider appropriate is a contact centre.

The legal issue

1. Section 60CA requires that in deciding whether to make a particular parenting order, the Court must regard the best interests of the children as the paramount consideration. Those best interests are determined under s 60CC of the Act. That particular provision is a mandatory provision requiring the Court to consider primary considerations and additional considerations.

2. In determining the primary considerations, the Court is required to look at the benefit to the children of having a meaningful relationship with both parents. It does not follow that a restricted, if not very limited time, between a parent and child prevents the child from having the benefit of a meaningful relationship with that parent. It must obviously be accepted that such a restriction makes it very difficult for parents to engage in many activities that they would otherwise enjoy if those restrictions were not present. It is clearly understood by the Court that limited and controlled time in a contact centre does restrict the benefit that the child can have within the relationship. However, the second of the primary considerations relates to the need to protect a child from harm and subsequent to 2012, the legislation removed any doubt about any conflict between those two primary considerations. Section 60CC(2A) now provides that the Court is to give greater weight to the consideration of protection of the children over the benefit of a meaningful relationship. Having regard to the finding of unacceptable risk, that provision must apply here.

3. Additional considerations must also be considered. Those are set out in s 60CC(3). I find the following:

   ·    The children are too young to have a view to be given any weight albeit that they are quite excited about the prospect of spending time with their father;

   ·    The relationship between the children and their mother is a very sound and protective one and their relationship with their father is good save for the concern expressed earlier about protection.  The husband’s role in the lives of the children has been limited since separation and unfortunately, that will have to continue in the future because of the unacceptable risk issue;

   ·    There can be no suggestion in this case that the husband has not endeavoured to continue participating in decisions about the children but the parties cannot reach agreement on such issues as the future schooling of H.  There can be no dispute in this case that the husband wants to spend as much time with the children as possible and that will have to be curtailed because of the unacceptable risk factor;

   ·    There is little doubt that the husband has fulfilled his obligation to maintain the children and he seems to be au fait with the child support system because he takes their advice in relation to such issues as the dispute between he and the wife about private schooling;

   ·    The Court is aware of the problems for these children who will be inquisitive as to why there is a supervisor or a very limited area in which they can move but whilst that impact on the children may very well be negative, much will depend upon how the husband addresses those problems and ensures that there are activities to distract the children from their curiosity;

   ·    There are no practical difficulties in the husband spending time with the children save that there is a significant problem in getting a placement at a contact centre but the parties still have the opportunity to come up with alternate propositions and absent agreement, the matter can be determined by the Court in the future;

   ·    There is no question about the capacity of the wife to care for the children as her primary caring position was not challenged.  I do not fully understand what the husband’s position is in relation to his capacity to provide for the emotional and intellectual needs of these children.  In any event, it is not a significant determining factor in this case;

   ·    In cases where the attitude to the children and the responsibilities of parenthood are contemplated, a finding of unacceptable risk must reflect badly on a parent.  In this case, there are too many factors of a concerning nature to ignore.  Perhaps the husband could have avoided some of those matters by dealing with the issues at a much earlier time than he did and by a more responsive approach to the criminal law charges that he was facing which might have overcome the problem of the cynicism of the wife in relation to his answers at trial about what happened to Y at the time of separation;

   ·    I have found that there is no specific issue of family violence in relation to the wife but I have serious concerns about the protection of the children and therefore family violence is relevant.  In addition, there is a family violence order in this case which is current until October 2014 and I am informed that the wife intends to seek an extension of that order.  It is an order that also relates to the children and it was made in circumstances where the husband conceded its necessity and the allegations that gave rise to the order were those that founded the evidence in this case.  I am unaware of any findings made by a magistrate in relation to those particular issues;

   ·    In this case, I have no real option other than to make a final order leaving the parties to their own devices because otherwise there will be consistent litigation and that is not in the interests of these children.

4. Section 61DA of the Act provides that when making a parenting order of the nature that I have just contemplated, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. Whichever way the evidence is viewed in this case, there are reasonable grounds to believe that the husband has engaged in family violence and the presumption must be rebutted. Even if that was not right, s 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests for the children to have a shared parental responsibility. The husband conceded in final address that he has no communication with the wife and there is certainly no trust between the parties. As I observed, the provisions of s 61DAC of the Act require the parties who have equal shared parental responsibility to actually consult with one another and make a decision about major long term issues. On any view, that cannot occur. One good example of the problem at the moment at the moment which would delay the question of education related to which school H should attend in the future. Whilst the husband endeavoured to explain that away as being his concern arising from advice by the Child Support Agency about his future responsibilities to bear half of the costs, that had a hollow ring about it.

5. In my view, the presumption of equal shared parental responsibility in this case is rebutted.

6. It is in the best interests of these children that they get on with their lives albeit that their time with their father is going to be restricted and the decision will be difficult for he and his family to bear.  I have determined on the balance of probabilities with all of the descriptions I have earlier mentioned that there is sufficient evidence here for the Court to be seriously concerned about the protection of the children.  I indicated earlier the submission put by the Independent Children’s Lawyer that the extensive array of allegations in the past leads to the conclusion that there will be more.  I do not accept that situation on the basis that I accept that the wife heard the allegations and reacted appropriately to them.  I consider that the preponderance of all of the factors in this case leading to the conclusion that there was an unacceptable risk of harm to these children means that the only solution for the Court to enable the children to benefit from a relationship with their father in the future is to have it seriously supervised.  It is impossible for the Court to contemplate the duration of that supervision at this stage.  In Moose and Moose [2008] FamCAFC 108, the Full Court contemplated a complaint that a trial judge had made an order which was effectively for permanent supervision and that such an order if not impracticable, would become impracticable. Boland J said the following at para 119:

   The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia).  In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).

7. The wife is supportive of a relationship with the children and the only issue is protection.  There is no other alternative and there is therefore a clash of ideology here.  For the children to get to the point in their lives where they can have an unrestricted relationship, they have to be much less vulnerable than they are at the moment.  The parties were unable to come up with any other solution but I accept that the courtroom is hardly the environment for any negotiation on that sort of issue.  The fullness of time may solve that problem and if it does not, one or both of the parties will have to come back to court with a variety of proposals and show that they have been unreasonably rejected by the other person.  Accordingly, this is not a case in which the court should simply say that long term supervision is counter-productive and potentially causing emotional harm because it is the only way in which what is otherwise a reasonable relationship between the husband and the children can be cemented.  Accordingly, I find that it is in the best interests of the children for that supervision to be indefinite at this stage.

8. I raised the question of whether there would be any application for costs.  Whilst all parties thought that that was unlikely, I shall make provision that the parties have 28 days in which to make an application in writing and the matter can be determined in chambers.

I certify that the preceding Ninety Four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 October 2014.

Associate: 

Date:  15 October 2014