DOWNIE & BEECH
[2017] FCCA 1078
•24 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOWNIE & BEECH | [2017] FCCA 1078 |
| Catchwords: HELD – Mother have sole parental responsibility for the children, that the children live with the Mother and spend no time or communicate with the Father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995, s.140 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 |
| Applicant: | MR DOWNIE |
| Respondent: | MS BEECH |
| File Number: | MLC 6571 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 27 March 2017 |
| Date of Last Submission: | 4 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 24 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Korke |
| Solicitors for the Applicant: | CBD Family Lawyers |
| Counsel for the Respondent: | Ms Sudholz |
Solicitors for the Respondent: | Not Applicable |
| Counsel for the Independent Children's Lawyer: | Ms Boymal |
| Solicitors for the Independent Children's Lawyer: | Kenna Teasdale |
| Counsel for the Department of Health and Human Services: | Mr Jensen |
ORDERS
All previous orders in these proceedings be discharged.
The Mother have sole parental responsibility for the children
X born (omitted) 2007 (“X”) and Y born (omitted) 2008 (“Y”).
X and Y live with the Mother.
X and Y spend no time with the Father.
The Father is restrained from communicating with X and Y.
The Mother do all things necessary to cause X and Y to attend upon such mental health practitioners as may be agreed between the Mother and the Independent Children’s Lawyer or nominated by the Independent Children’s Lawyer (“X and Y’s mental health practitioner”) for the purpose of explaining these orders to X and Y, to assist in the implementation of these orders and to provide such other therapeutic support for X and Y as may be requested by the Mother or as identified by such mental health practitioner in consultation with the Mother.
The Independent Children’s Lawyer provide X and Y’s mental health practitioner with:
(a)a copy of this Order;
(b)a copy of the Reasons for Judgment;
(c)a copy of the Family Reports of Ms V dated 14 October 2016 and 10 March 2017; and
(d)a copy of the report prepared by Dr K dated 8 February 2017.
IT IS NOTED that publication of this judgment under the pseudonym Downie & Beech is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6571 of 2015
| MR DOWNIE |
Applicant
And
| MS BEECH |
Respondent
REASONS FOR JUDGMENT
Introduction
This difficult and distressing matter relates to the living arrangements for the children of the Father and the Mother, X born (omitted) 2007 (“X”) and Y born (omitted) 2008 (“Y”).
At the start of the final hearing of this matter the Father sought orders that the parties have equal shared parental responsibility for X and Y, that X and Y live with each of the parties on a week about basis and that they share school holidays and special occasions with each of their parents.
In his closing on behalf of the Father at the conclusion of evidence, the Father’s Counsel advised the Court that the Father now seeks orders that the Mother have sole parental responsibility for X and Y, for X and Y to live with the Mother and for them to spend time with him after school each week and from 10:00am to 4:00pm for two Saturdays out of three, such time to be supervised by any of Ms L, Mr T or Mr L.
At the conclusion of evidence, the Father’s counsel sought a further order that the Mother be restrained from relocating with X and Y interstate or overseas without leave of the Court or the written permission of the Father.
The Mother is seeking orders that she have sole parental responsibility for X and Y, that they live with her and do not spend any time or communicate with the Father. The Mother opposes the Father’s application that she be restrained from relocating X and Y without leave of the Court or the written permission of the Father.
The Independent Children’s Lawyer and the Department of Health and Human Services (“DHHS”) support the orders sought by the Mother. They too oppose the Father’s application for orders restraining the Mother relocating with X and Y.
Background
The Father was born on (omitted) 1964 and is aged 53 years. Whilst born in (country omitted), the Father grew up in or around (omitted) in (country omitted). The Father is employed as a (occupation omitted) at (employer omitted) (“(employer omitted)”). The Father has re-partnered and lives with his partner, Ms S, on her two acre property in (omitted).
The Mother was born on (omitted) 1986 and is aged 31 years. She is employed in the (omitted) industry. The Mother has repartnered and lives with her partner Ms J.
Between 1984 and 1992 the Father was married to Ms D with whom he has two children, Ms F born (omitted) 1988 (“Ms F”) and Mr L born (omitted) 1992 (“Mr L”).
The Mother’s mother, Ms C separated from the Mother’s father Mr B in or around 1991. There are three children of that relationship, Mr M born (omitted) 1982 (“Mr M”), Mr P born (omitted) 1988 (“Mr P”) and the Mother.
In 1992 the Father commenced a de facto relationship with Ms C. Their son Mr S, the Mother’s half-brother, was born on (omitted) 1993 (“Mr S”).
It is the Mother’s evidence that when her parents first separated, she and her brothers Mr M and Mr P remained living with her father. It is her evidence that in or about 1993 court orders were made in (country omitted) which resulted in she and her brothers living with her mother and the Father in these proceedings. She and Mr P spent alternate weekends and holidays with her father.
It is the Father’s evidence that the Mother and her brothers lived with their father and spent alternate weekends and holidays with he and Ms C for the majority of his relationship with Ms C.
It is the Mother’s evidence that the Father started sexually abusing her from the age of approximately nine years and that this abuse continued throughout her teenage years.
It is the Mother’s evidence she became pregnant to the Father and had an abortion at the (omitted) Hospital in or around 2002. It is her evidence she was 14 years old at the time. It is noted she would have been 16 in 2002. It is the Mother’s evidence the Father took her to and collected her from the hospital and coached her to tell the hospital she did not wish to keep the child as she was too young to have a child and wanted to pursue a career.
Subpoenaed documents from (omitted) Hospital record the Mother had an abortion in (omitted) 2003 when she was aged 17 years.
The Father categorically denies the Mother’s allegations that he had any form of sexual relationship with her whilst she was a minor. He further denies any knowledge of the Mother having an abortion at age 17 or at any time.
Ms C was diagnosed with cancer in 2002 and died on (omitted) 2005.
It is the Father’s evidence that the Mother only came to live with he and Ms C in the period leading up to Ms C’s death. It is his evidence that it was during this period he and the Mother became close.
It is the Father’s evidence that some 4 or 5 weeks after Ms C’s death, he and the Mother went out for dinner. They returned to where they were then living and it was at this time that he and the Mother first had sex. The Mother was at that time 19 and the Father 42.
After Ms C’s death the Father, the Mother, Mr S and Mr L went on a holiday to (country omitted) for 5-6 weeks. Exactly when this holiday occurred is unclear as the Father’s evidence as to the timing of this holiday was contradictory. Initially it was the Father’s evidence the trip took place in mid-2005 shortly after Ms C’s death. He also gave evidence the trip was approximately eight weeks before he moved to live in (country omitted) in mid-2006.
The Mother fell pregnant with X in (omitted) 2006.
The Father and Mr S moved permanently to (country omitted) in (omitted) 2006. At the time the Father moved to (country omitted) he was not aware the Mother was pregnant. The Mother advised the Father of the pregnancy by telephone to (country omitted).
The Mother joined the Father and Mr S in (country omitted) in (omitted) 2006.
The parties and Mr S initially lived on a (omitted) farm in (country omitted) where the Father worked.
After their arrival in (country omitted), though precisely when is unclear, the parties, Mr S and X moved into a property owned by Mr T and Ms L. The parties worked in a (business omitted) owned by the Ms L. The Mr T & Ms L are described as being like grandparents to Mr S, X and Y.
In 2009 the parties, Mr S, X and Y together with Mr T & Ms L moved to (omitted), Queensland where they all lived together.
In (omitted), Queensland the Father, who had previously owned and run a (business omitted) in (country omitted) obtained employment as a (occupation omitted) with the (employer omitted). The Mother also worked for the (employer omitted), (duties omitted).
In September 2010 the Father’s son Mr L who had just finished high school moved from (country omitted) to live in the Queensland household.
In 2011 the Mother obtained a position as a (occupation omitted) with (employer omitted), a (omitted) company based in Melbourne. The parties, Mr S, Mr L, X and Y moved to Melbourne where they resided in a six bedroom rental property in (omitted).
The Father initially worked at (employer omitted) before obtaining a position as a (occupation omitted) at (employer omitted) in Melbourne. Mr S and Mr L also obtained employment at (employer omitted).
The parties separated in February 2012 when the Mother left the former matrimonial home.
It is the Mother’s evidence that during the parties’ “adult relationship”, the Father became progressively more physically and sexually violent towards her. It is her evidence on the evening of the separation the Father raped her. These allegations are currently being investigated by Victoria Police.
The Father adamantly denies the Mother’s allegations that he was either physically or sexually violent during the relationship. It his evidence there’s was a loving relationship. It is the Father’s evidence that on the night the Mother left the former matrimonial home they had been out together at the (omitted). When they got home the Mother told him “out of the blue” that the relationship was over and left. The Father’s evidence is that there was no fighting between them and definitely no sexual abuse on that night.
The Father believes the Mother left the relationship because she was having an affair with her now partner Ms J.
When the parties separated, X and Y remained living with the Father. The parties’ evidence as to the time the children spent with the Mother in the period immediately after separation differs. The Mother’s evidence is she saw them daily whilst it is the Father’s evidence the Mother saw them only intermittently because of the highly jealous and volatile relationship she had and still has with Ms J.
In (omitted) 2012 the Father, Mr S and Mr L moved from (omitted) to a three bedroom unit in (omitted).
In September 2012 the Father commenced a relationship with Ms S.
In November 2012 a report was received by DHHS in relation to the Mother having a black eye and of Y exhibiting sexualised behaviour at childcare, in that he was masturbating and showing other children how to masturbate.
The Mother explained the black eye as resulting from a fall down stairs and hitting her head on a book case. DHHS record Y telling them in interview a similar story to that of the Mother as to how the Mother got a black eye.
It is the Father’s belief the Mother’s black eye was caused by the Mother’s partner Ms J hitting her.
DHHS closed the report at intake.
By the end of 2012 the parties reached informal agreement for there to be a shared care arrangement whereby X and Y spend five nights with each of the parties.
On 15 February 2013 a second report was received by DHHS in relation to Y’s sexualised behaviours. He was reported to have exposed himself to other children, sucked another boy’s penis, asked several girls to show him their vaginas and when they said no he pulled a girl’s underwear to the side of her vagina exposing her.
At this time, DHHS spoke to both parents. Neither party advised DHHS the true history of their relationship. The parties told DHHS that they met on the Mother’s 18th birthday at a (omitted) in (omitted) and that Mr S was a child of the Father’s marriage to Ms D.
The parties arranged for Y to attend (omitted) given his ongoing concerning behaviour.
A third report was made to DHHS on 29 August 2013. It was reported that Y had made some concerning disclosures at (omitted) when during a section on feelings and emotions Y was exposed to “the scared face” and associated this with “don’t touch me”. When asked why he would feel scared by this, Y stated “something rude”.
At this time, X was also reported to be exhibiting sexualised behaviours in that she was persistently masturbating. She too was referred to (omitted).
On 29 October 2013, Y was involved in two further incidents of sexualised behaviour at childcare/kindergarten when he again pulled down the pants of two boys and kissed them on the penis.
(omitted) ceased their involvement with X and Y in February 2014.
On 9 April 2014 there was a fourth report to DHHS in relation to X and Y. It was reported the Mother had been sexually abused by the Father from the age of seven or eight. It was reported the Mother had disclosed she had been untruthful in previous child protection involvements when she told DHHS that she had no concerns about X and Y with the Father.
On 23 April 2014 the Father was interviewed by Ms K, Protective Worker from DHHS. The DHHS records of this interview, the accuracy of which is confirmed by the evidence of DHHS and the Father, indicate that the Father told DHHS:
·he met the Mother at the (omitted) where she was celebrating her 18th birthday;
·prior to his relationship with the Mother he had only been involved with his ex-Wife Ms D with whom he has three children, Ms F, Mr L and Mr S;
·he only met Ms C once and that was during his relationship with the Mother; and
·he denied he was previously the Mother’s step-father.
On 3 June 2014 the Mother was interviewed by Ms K. The DHHS records of this interview, the accuracy of which is confirmed by the evidence of DHHS and the Mother, indicate that the Mother:
·was unwilling to confirm or deny the allegations the Father sexually abused her as a child;
·was afraid to reveal any further information about her history because she feared DHHS would remove X and Y from her care because she had allowed them to spend time with the Father;
·allowed unsupervised time between X, Y and the Father because she believed he would never harm his own biological children;
·had lost contact with her father;
·was scared of the Father and called him a “manipulative paedophile”; and
·wanted DHHS to investigate the concerns raised by X and Y’s sexualised behaviours.
On 30 June 2014 DHHS again interviewed the Mother. On that occasion the Mother:
·was again unable to speak directly about the sexual abuse allegations;
·advised the Father had been in a relationship with “another woman” after his first wife and prior to their relationship but when asked who that person was, suggested DHHS ask the Father; and
·stated that all the Father’s children were “too loyal” to the Father and speaking to them to confirm or uncover information would be a waste of time.
On 26 July 2014 DHHS conducted a home visit with the Father, X and Y. It is the evidence of DHHS that the Father again told them he first met the Mother when she was 18. It is their evidence that it was only when the Father was advised that DHHS knew Mr S’s mother was not Ms D but Ms C and that she was the Mother’s mother that the Father conceded this was the truth. DHHS report the Father as telling them that all his children were fine about his relationship with the Mother and that “although it was immoral, it was not illegal”.
On 22 August 2014 a Protection Application was made to the Children’s Court in Melbourne by DHHS based on the following:
·for independent reasons Mr Downie and Ms Beech had either been untruthful or with-held information from Child Protection which prevented thorough assessments to be made, or thwarted the investigative process, which in itself had placed enormous stress upon the children;
·from the information obtained and from Ms Beech’s presentation (including her displays of fear, withdrawal, hypervigilance and self preservation) there was enough evidence to believe that Ms Beech had been sexually and emotionally abused as a child (at the same age X is now);
·
it is equally evident (in spite of the hypotheticals) that
Mr Downie is the alleged perpetrator of sexual abuse against Ms Beech;
·X and Y have both demonstrated significant sexualised behaviours since the parental separation and this has strengthened the likelihood that they may have been exposed to sexual harm.
On 22 August 2014 an Interim Accommodation Order to the Mother was made in the Children’s Court by Magistrate Gibson. An order was also made there be no time between the Father and X and Y.
The order for no time between the Father, X and Y was subsequently amended and thereafter the Father spent one hour twice per week with X and Y supervised by Ms L.
On 29 April 2015 the Children’s Court proceedings were withdrawn. The parties entered into a written undertaking that the Father was to spend no less than one hour twice a week with X and Y, with Ms L in attendance until parenting arrangements were agreed between the parties or family law proceedings commenced.
On the recommendations of DHHS, the Mother engaged with CASA and began speaking to SOCIT.
The Father filed an Initiating Application on 13 July 2015 seeking orders for the parties to have equal shared parental responsibility for X and Y and for them to live week about with each of the parties.
On 18 August 2015 interim orders were made by consent for X and Y to live with the Mother and spend time with the Father each Tuesday from after school to 5:30pm, each alternate Saturday from 10:00am to 1:00pm and each alternate Thursday from after school to 5:30pm, such time to occur with Ms L in substantial attendance.
The matter was again listed on 30 September 2015. Consent orders were made for the parties to attend on Dr S, the Father for a psycho-sexual and risk assessment and the Mother for assessment including a risk assessment. Orders were also made for the Father to continue to spend time with X and Y in accordance with the orders of 18 August 2015 and for the addition of Mr L and Mr T as approved persons with Ms L to be in substantial attendance when the Father was spending time with X and Y.
Orders were also made listing the matter for final hearing on
21 November 2016 and directions given for trial preparation and the preparation of a family report.
The matter again came before the Court on 1 February 2016. Interim orders were made for X and Y to spend time with the Father each Tuesday from after school to 5:30pm, each alternate Thursday from after school to 5:30pm and for the first two Saturdays in each three week cycle from 10:00am to 4:00pm with any of Ms L, Mr T and Mr L to be in substantial attendance.
On 12 October 2016 the Mother completed her statement to Victoria Police.
On 14 October 2016 family consultant Ms V completed her Family Report. Because of her concerns about the Mother’s presentation during the interviews for the report, Ms V recommended consideration be given to the Mother undergoing a trauma assessment by a female psychologist.
On 20 October 2016 orders were made for the Mother to undergo a trauma assessment. Because the assessment could not be completed by the trial date, on 9 November 2016 orders were made vacating the trial date and adjourning the matter for hearing to 27 March 2017.
After X returned from a visit with the Father on 14 February 2017, the Mother found two pictures in her diary. The pictures are of a highly sexualised nature. They are headed “my dream boyfriend”. There is a drawing of a male. The first drawing has an arrow pointing to the figure’s crutch with the words ‘cute crutch aohhhh *thinks*’. The second picture also shows a male figure. There is a drawing of a penis and scrotum with the words “nice dick ahhhhhhhh harder harder”. There is also a picture headed ‘vagina’ with a penis and scrotum over the vagina. The picture is accompanied by the words “in in get it in ahhhh harder so Good yay. Someone that will have sex a lot with me so it really hard”.
The Mother showed the pictures to the report writer and to DHHS.
At the commencement of the final hearing, DHHS sought and were granted leave to intervene in the proceedings.
At the conclusion of the final hearing, the Mother’s solicitors, supported by the Independent Children’s Lawyer and DHHS made oral application that X and Y’s time with the Father be suspended until further order of the Court. An order was made on 4 April 2017 suspending X and Y’s time with the Father.
The Evidence
The Father
The Father relies upon his affidavits affirmed 13 July 2015 and
17 August 2015. The Father gave vive voce evidence at the final hearing.
The Father also relies upon the following affidavits:
a)Ms S, affirmed 24 March 2017;
b)Mr S, affirmed 17 August 2015;
c)Mr L, affirmed 24 March 2017;
d)Mr T, affirmed 17 August 2015;
e)Ms L; sworn 17 August 2015;
f)Ms A, affirmed 24 March 2017’
g)Ms T, affirmed 24 March 2017; and
h)Ms G, affirmed 24 March 2017.
All of the abovenamed witnesses gave vive voce evidence at the final hearing.
The Father describes his relationship with X and Y as close and loving.
It is his evidence that he poses no risk whatsoever to X and Y and that they have never been exposed to any form of inappropriate sexual, physical or emotional abuse when in his care.
It is the Father’s evidence that at no time did he consider that he and the Mother had a step-father/step-daughter relationship. It is the Father’s evidence that up until shortly before Ms C’s death when the Mother moved in to the home that he and Ms C and Mr S shared to help care for Ms C, the Mother lived with her father Mr B and only spent alternate weekends and some of the school holidays with he and Ms C, save for a period of some nine months when she and Mr P lived with them during the Mother’s teenage years.
It is the Father’s evidence that he had little interaction with the Mother when she did spend time in his and Ms C’s home as he worked as a (occupation omitted) most weekends when the Mother was visiting them, as weekend work was when he was better paid in his employment.
The Father agrees that there were occasions where he would have had meals and interacted with the Mother. He described her as “just being there” for the majority of his relationship with Ms C.
It is the Father’s evidence that at no time prior to the death of Ms C did he have any form of sexual relationship with the Mother.
It is the Father’s evidence that he and the Mother got to know each other properly during the period that they were both caring for Ms C after she was diagnosed with cancer and was sadly dying.
It is the Father’s evidence that some four or five weeks after Ms C’s death he and the Mother had gone out for dinner, they had a few drinks but were not drunk and that when they returned to their home they had consensual sexual relations for the first time.
It is the Father’s evidence that their relationship developed after this time and he describes their subsequent relationship up until the date of separation as being a close, happy and loving one.
The Father denies the Mother’s allegations that during what I term the parties’ “adult relationship”, he was emotionally and financially controlling of her or that he was increasingly physically and sexually abusive of her. He is adamant in his denial that he ever raped the Mother at any time during the relationship and in particular on the night that they separated in February 2012.
It is the Father’s evidence that the Mother was a vivacious and social woman who went out with friends in (country omitted), Queensland and in Melbourne. He describes her as successfully establishing and running her own businesses and of managing her own finances and income.
In extensive and lengthy cross-examination of the Father by Counsel for the Independent Children’s Lawyer, it was put to the Father on numerous occasions that his relationship with the Mother, given their age difference, that he was her step-father and that, on his evidence he commenced a sexual relationship with her only four or five weeks after the death of her mother when she was intensely grieving that loss, he was both immoral and inappropriate. In response to each of the questions of the Independent Children’s Lawyer, the Father would indicate that he had been “stupid” in having a relationship with the Mother but at no time did he acknowledge that his relationship with the Mother was immoral or inappropriate.
When questioned as to why the relationship was “stupid”, the Father’s answer was because he had “been with” her mother before having a relationship with the Mother herself.
The Father was also questioned at length by Counsel for the Independent Children’s Lawyer as to how he would explain to X and Y that Mr S’s mother was also the Mother’s mother or that Mr S was their uncle as well as their brother. The Father was unable to provide an answer to these questions other than to indicate that at this time X and Y consider Mr S to be their brother and that this would perhaps be something to be explained to X and Y when they were older.
It is the Father’s evidence that he believes that the person at the root of the Mother making up the lies that she has about him abusing her is the Mother’s now-partner Ms J. He describes Ms J as being extremely jealous and of being the cause of the notification to DHHS in 2014 that led to the Children’s Court proceedings.
It is the Father’s evidence that he believes Ms J and the Mother are perpetuating the allegations and lies against him because they wish to keep X and Y to themselves and remove him from the children’s lives.
When it was explained to the Father that the notification to DHHS in 2014 was made by Ms J’s psychologist who was counselling Ms J in relation to issues that Ms J was struggling with, including her relationship with the Mother, the Father did not alter his views that Ms J is the primary instigator in the Mother making the allegations that she was abused by him.
In relation to his initial statements to DHHS that he had only met the Mother for the first time in the (omitted) when she was out celebrating her 18th birthday and that he did not know Ms C, it is the Father’s evidence that he told DHHS these lies at the specific request of the Mother. It is his evidence the Mother contacted him and told him that the Department were going to speak to him because of the notification about Y’s sexualised behaviour at childcare and that he needed to tell DHHS this history of their relationship so that it would accord with what the Mother had set out in her Visa Application when she had first gone to (country omitted) to join he and Mr S in 2006.
It is the Father’s evidence that the Mother was concerned that if he told the Department of Health and Human Services about his previous relationship with her mother, her Visa may have been cancelled.
It is the Father’s evidence that both Mr S and Mr L were made aware of he and the Mother’s relationship shortly after it commenced. It is his evidence that initially Mr L told him he was stupid because of the age difference between he and the Mother but that Mr S and Mr L accepted the relationship and had a positive relationship with the Mother whilst he and the Mother were together.
It is the Father’s evidence that when the Mother first left the matrimonial home, X and Y remained primarily in his care with the Mother only intermittently seeking to spend time with them.
It is the Father’s evidence that after separation the Mother regularly communicated with him in relation to arrangements for X and Y by text, telephone and by dropping into the work premises at (employer omitted). It is his evidence that the communication between he and the Mother was cordial and cooperative but the Mother would often cut short communication with him as her partner Ms J would become jealous and angry if she knew that the Mother was communicating with him.
It is the Father’s evidence that in January 2013 the Mother put forward a written proposal in email for a shared care arrangement whereby X and Y live with each of them on a rotating five-day basis. The Father agreed to the Mother’s proposal. It is the Father’s evidence that despite this agreement, X and Y remained predominantly in his care as the Mother would frequently request that they remain with him because of the Mother’s work or other commitments.
It is the Father’s evidence that he does not believe the Mother is scared of him.
It is the Father’s evidence that up until DHHS made their application to the Children’s Court in August 2014, he and the Mother had a cooperative parenting relationship and were able to communicate in a sensible and friendly way in relation to the arrangements for X and Y.
It is the Father’s evidence that the Mother has now dug a hole for herself such that she has found herself in a position that she has needed to repeat the lies she has made up about him to DHHS, the police, the report writer, Dr S, Dr K and to this Court.
It is the Father’s evidence he believes once these proceedings are over the Mother will again seek to have him care for X and Y, as was their arrangement prior to the Children’s Court proceedings as the Mother struggles to care for X and Y full time.
It is the Father’s evidence that it is not in X and Y’s best interests that they spend no time with him given their close and loving relationship and his importance to them as their father.
Ms S
Ms S is the Father’s partner. They have been in a relationship since (omitted) 2012. Ms S and the Father live in Ms S’s residence at (omitted).
Ms S met the Father when she commenced employment as the (occupation omitted) at (employer omitted) in 2011. Ms S continues to work at (employer omitted) and the Father continues to be her (employer omitted).
It is Ms S’s evidence that when she first started working at (employer omitted) the Mother would regularly drop into the work premises. She observed the Father and the Mother to have a close and loving relationship and they appeared to be a very happy couple. It is Ms S’s evidence that she was very surprised when the Father told her that the Mother had left him.
It is Ms S’s evidence that she has a very good relationship with X and Y. It is Ms S’s evidence that up until the Application by DHHS in 2014, X and Y were primarily in the care of the Father and herself. Despite the agreement between the Mother and Father for shared care, the Mother would often ask she and the Father to care for X and Y because of her work and other commitments.
Ms S was asked by Counsel for the Independent Children’s Lawyer when she was first made aware that the Mother was the Father’s step-daughter. Ms S indicated that she did not perceive the relationship between the Father and the Mother as that of step-father and step-daughter. It is her evidence that she viewed them as a normal couple.
Ms S was asked whether she thought the relationship between the Father and the Mother was morally wrong, given on the Father’s evidence that relationship commenced when the Mother was only 19 and he was 42 and that he had been in a 12 year relationship with her mother. It is Ms S’s evidence that she does not necessarily think that it showed very good judgment on behalf of the Father but that it was not morally wrong as the Mother and Father were not blood related.
It is Ms S’s evidence that she believes the Mother is lying when making the allegations of abuse of her by the Father, that she does not believe a word that the Mother says and that the Mother has been putting on a very good act for the last two and a half years.
Like the Father, Ms S is of the view that the Mother is making false allegations against the Father at the behest and encouragement of her partner Ms J in order to have X and Y live solely in the Mother and Ms J’s care.
Mr S
Mr S is the son of the Father and Ms C and therefore the Mother’s half-brother.
It is Mr S’s evidence that the Mother did not live with the Father, his mother and himself in (country omitted) until shortly before his mother’s death when the Mother moved in to assist in his mother’s care as he was at school and his father was working in his business.
It is Mr S’s evidence that the Mother and her brother Mr P would spend alternate weekends in his home and that the Mother and her brother Mr P shared a bedroom.
It is Mr S’s evidence that at no time did he ever walk in on his father in bed with the Mother when she was a child or that he ever observed them in any form of intimate relationship before his mother’s death.
It is Mr S’s evidence that he observed the Mother and the Father to become closer after the death of his mother and that when he, the Father, the Mother and his half-brother Mr L went on holiday to (country omitted) after the death of his mother, the Mother and the Father slept together in the same bed.
It is Mr S’s evidence that his father explained to him that he and the Mother were now in a relationship and that he was not upset by this as they were two consenting adults who were not related to each other.
It is Mr S’s evidence that after the Mother moved to (country omitted) to join he and the Father, she told him that she was pregnant and that he helped in the preparations for the baby’s arrival including assisting his father in building a crib and buying baby bottles.
It is Mr S’s evidence that the relationship between the Father and the Mother was a happy and loving one. He refutes the Mother’s evidence that she was controlled by the Father. It is his evidence that the Mother ran her own business, was socially active with friends outside of the home and that if anything, it was the Father who was a pushover and accommodated the Mother’s demands.
It is Mr S’s evidence that on the night the parties separated the Mother woke him up to care for X and Y. It is his evidence that at no time did he see the Father being violent towards the Mother but rather it was the Mother who slapped the Father and was yelling at him.
It is Mr S’s evidence that immediately after separation X and Y remained in the Father’s care.
Mr S gives evidence of an evening after separation where he was contacted by the Father to drive down to a hotel near to where he was to give the Mother some money. It is his evidence that when he arrived at the home the Mother was in her car with X and Y. She was in a dishevelled and he believes drunken state and told him that she and Ms J had had an argument and she had had to find alternative accommodation for the night.
Mr S also works at (employer omitted) where the Father is his manager. He has a three year old son, A, who he sees on alternate weekends having separated from A’s mother.
Mr S is adamant in his belief that there was no sexual relationship between the Mother and the Father prior to the death of his mother and that the adult relationship between the Mother and the Father was totally appropriate given they were not related and were both consenting adults.
Mr L
Mr L is the Father’s son from his marriage to Ms D.
Mr L also works at (employer omitted) where he is a (occupation omitted). The Father is his manager.
It is Mr L’s evidence that his parents separated prior to his birth. His mother remarried and he always looked upon his mother’s now husband and his son as his step-father and step-brother.
It is Mr L’s evidence that as his father and Ms C never married, he never considered Ms C to be his step-mother or the Mother in these proceedings to be his step-sister.
It is Mr L’s evidence that he became involved in (hobby omitted) at a very young age, playing most weekends. Because of this, he would only visit the home of the Father and Ms C six or seven times a year and that when this occurred the Mother was rarely in the Father’s home.
It was Mr L’s evidence that he was not told of X or Y’s births until 2010, shortly prior to the Father visiting him in (country omitted) at or around the time of his 18th birthday. He believes the Father did not tell him of X and Y’s births not because he was ashamed or embarrassed that he had children with the Mother, but because he did not want Mr L to disrupt his education by visiting the Father in (country omitted).
It is Mr L’s evidence that he first visited the Father, the Mother, Mr S, X and Y in (omitted) 2010 in Queensland for a three week holiday. He moved to live with them in Queensland on (omitted) 2010.
It is Mr L’s evidence that he, together with the other members of the Father’s household formed a “big, happy family” and that he only observed the Father and the Mother to have a close and loving relationship when living together.
It is Mr L’s evidence that after the Mother left the Father, X and Y stayed in the care of the Father, himself and Mr S and that the Mother did not spend any time with X or Y for several months. He alleges the Mother missed X’s fifth birthday.
It is Mr L’s evidence that when the Mother recommenced spending time with X and Y, they were in the Father’s care at least 80% of the time until the Children’s Court proceedings.
It is Mr L’s evidence that he and the Mother had a very good relationship prior to the parties’ separation and he described them as being very close.
It is Mr L’s evidence that until the Children’s Court application, the Mother would regularly pop into (employer omitted) to effect changeover and would chat easily and happily with he, the Father and other members of staff.
Mr L does not believe there was anything inappropriate with the relationship between the Mother and the Father as he does not view them as having been step-father/step-daughter and they were consenting adults.
Mr T
Mr T met the Mother, the Father and Mr S in (country omitted) just before X was born.
It would appear shortly after he met the parties, the Father, the Mother and Mr S moved in with Mr T. It is Mr T’s evidence that the Father bought into a partnership in the (omitted) business then owned and conducted by himself and his wife. Mr T, his wife, the Father and the Mother all worked in the business.
It is Mr T’s evidence that he considers he and his wife to be family, not just friends of the Downie family and that he is X and Y’s “grandfather”.
It is Mr T’s evidence that the Mother and the Father were a normal, happy and loving couple. He knew them in (country omitted), Queensland and Melbourne and their separation came as a shock to him.
He strongly refutes the allegations by the Mother that the Father was controlling of her. It is his evidence that it was the Mother who was the stronger partner in the parties’ relationship and it was she who called the shots.
It is Mr T’s evidence that it was the Mother who insisted in getting pregnant with Y. My understanding of the evidence of Mr T was that he discussed with the Father that it was not financially sensible for he and the Mother to have a second child so soon after X’s birth but the Father told him the Mother insisted on doing so.
Mr T was asked whether he was aware the Father was the Mother’s step-father. It is his evidence that the Father is not the Mother’s step-father, although he is aware that the Father had been in a relationship with the Mother’s mother.
When questioned about the appropriateness or otherwise of the Father having a relationship with the daughter of his partner and of commencing a sexual relationship with her only four or five weeks after the death of her mother, it is Mr T’s evidence that he has no view on this issue at all, nor any problem with it.
Ms L
Ms L met the Mother, the Father and Mr S in (country omitted) shortly before X’s birth.
As was the evidence of her husband Mr T, the Mother, the Father and Mr S moved in with Ms L & Mr T in (country omitted) and joined them in the running of their (omitted) business.
Ms L confirmed that they all lived together in Queensland and that after the parties and the children moved to Melbourne, she and her husband followed shortly thereafter.
Ms L currently works at (employer omitted) where she is a (occupation omitted). The Father is her manager.
It is Ms L’s evidence that she currently lives in the (omitted) property where Mr L and Mr S are residing and returns to the home that her husband, who is now retired, is building for them in (omitted) when she can.
Ms L describes the relationship between the Mother and the Father as close and loving. It is her evidence that it was the Mother who was the party in the relationship who called the shots and that if there was anything the Mother wanted, the Father would oblige her.
It is Ms L’s evidence that she did not know that the Father had been in a relationship with the Mother’s mother prior to commencing a relationship with the Mother until after the parties had separated. It is her evidence that she had never discussed the Mother’s background with her.
When asked about the propriety of the Father having been the Mother’s step-father, of he being 42 and she being only 19 when they started their sexual relationship on the Father’s evidence and of that relationship commencing only four or five weeks after the death of the Mother’s mother, Ms L was the only witness called by the Father who paused and acknowledged that such a relationship could be viewed as inappropriate. However, she immediately qualified this statement by indicating that knowing the Father as she does, the relationship between the Mother and the Father would not have been inappropriate.
It is the evidence of Ms L that she has a close and loving relationship with X and Y and that they see her as, and she considers herself to be, their “grandmother”.
Ms L has been in substantial attendance for all time that has occurred between X, Y and the Father since DHHS became involved in this matter save for one or two occasions when Mr L performed that task.
Ms L describes a very close and loving relationship between the Father and X and Y and it is her evidence that she has never seen any inappropriate behaviour by the Father towards either of the children.
In relation to the manner in which she is substantial attendance when X and Y are with the Father, it is Ms L’s evidence that their time with the Father predominantly takes place at the (omitted) property of Ms S. It is her evidence that this property is approximately one or two acres in size and that the Father, X and Y are often outside playing or undertaking chores. During this period she usually remains in the house. She indicates that when outside with the Father, she can neither see nor hear what takes place between the Father and X and Y.
Ms A
Ms A is a (occupation omitted) at (employer omitted). The Father is her manager.
It is Ms A’s evidence that she first met the Father when both she and the Father started working at (employer omitted) in (omitted) 2011. It is her evidence that she met the Mother shortly after she started working at (employer omitted).
It is Ms A’s evidence that the Mother was always calling in to (employer omitted) to see the Father. Ms A claims to have built a friendship with the Mother who was always friendly, polite and happy to “have a chat over coffee.”
When it was put to Ms A that the Mother could not remember who she was, she amended her evidence to say that “they were friendly”.
It is Ms A’s evidence that the Mother and the Father always seemed to be very happy and affectionate towards one another and that their separation came as a surprise to her.
Ms A describes having a very close friendship with the Father who she sees as somewhat of a father figure to her. It is her evidence that she became aware of the Father’s relationship with the Mother’s mother not long after starting at (employer omitted) as she and the Father had discussed their respective families when having a “d and m”.
When asked about her views as to the appropriateness of the relationship between the Father and the Mother given that on the Father’s evidence he had been her step-father, that she was only 19 when the relationship started and that it occurred only weeks after the Mother’s mother’s death, it is Ms A’s evidence that she has been 18 or 19 herself and believes that like herself, the Mother would be able to make up her own mind about whether to enter a relationship or not. Further, it is her belief that because the Father and the Mother are not blood relatives, there is nothing inappropriate about that relationship.
Ms T
Ms T is a (occupation omitted) at (employer omitted). The Father is her manager.
Ms T first met the Father when she commenced full time employment at (employer omitted) in (omitted) 2011 and the Father was the newly appointed (occupation omitted). It is her evidence that she met the Mother, X and Y later in 2011.
It is Ms T’s evidence that she observed the relationship between the parties to be a happy and loving one prior to their separation.
Ms T was asked whether she was aware that the Mother had been the Father’s step-daughter. It is her evidence that whilst she was aware the Father had been in a relationship with the Mother’s mother, she didn’t consider the relationship between the Father and Mother “in that way” as the parties were not blood related. When further questioned whether she had any views on the propriety of the relationship given the age difference between the parties and that the relationship started only weeks after the death of Ms C, it is Ms T’s evidence that she does not have any views at all.
Ms G
It is Ms G’s evidence that she met X and Y through the (omitted) children’s services in 2013 and 2014 when the Father and his partner Ms S were utilising that service for holiday care for X and Y.
It is Ms G’s evidence that she met the Mother and her partner Ms J for the first time when X and Y were enrolled in the 2014 (omitted) program.
In paragraph (7) of her Affidavit sworn 24 March 2017, Ms G deposes that the Mother and Ms J did not interact with staff when dropping off or collecting X and Y. When it was put to Ms G that the Mother had spoken with staff about concerns that Y was being rough with other children and also Y having severe sunburn on his shoulders after a day at the program, Ms G indicated she was not aware that the Mother had those discussions with the staff.
It is Ms G’s evidence that the Mother engaged her daughter B to babysit X and Y overnight on 3 October 2014 and that when the Mother arrived to pick them up the next morning she smelled strongly of alcohol.
It is Ms G’s evidence that for most of the summer holidays in 2014/2015 B babysat X and Y at the Mother’s request. It is her evidence the Mother failed to provide lunches for them and the Father dropped off groceries and brand new clothing for X and Y when X and Y were not present.
Ms G makes complaint that when her daughter babysat X and Y for the Mother, the clothing they presented in was dirty and did not fit well. Whilst she raised her concerns with the Father about their unkempt look, she did not raise her concerns with the Mother even though by this stage DHHS were involved in the matter and the Father was only spending supervised time with them.
Ms G explained the reason she contacted the Father rather than the Mother about her concerns was that it was he who was paying for their care and was the one who had dropped off food and clothing.
Ms G indicated that the last time she had anything to do with the Mother or the Father or saw X or Y was in January 2015. She conceded she was not able to tell the Court how X and Y present now.
The Mother
In these proceedings the Mother is self-represented. Given the seriousness of the allegations made by the Mother about the abuse she suffered at the hands of the Father, the Court requested that enquiries be made of the Victorian Bar as to whether arrangements could be made for the Mother to have Counsel appear at the final hearing on a pro bono basis. The Court is grateful that Ms Sudholz, then of Counsel, agreed to appear on behalf of the Mother at the final hearing.
The Mother is seeking orders that she have sole parental responsibility for X and Y, that they live with her and spend no time with the Father or the extended paternal family.
The Mother acknowledges that X and Y love their father, Ms S and their half-brothers Mr L and Mr S. It is the Mother’s evidence that because of the negative impact on her and her parenting capacity, that continued interaction with the paternal family has been arising from the trauma she experienced and continues to experience because of the serious sexual and physical abuse of her by the Father from childhood, and her concern that the sexualised behaviour exhibited by X and Y has at its cause abuse by the Father, time between X and Y and the Father is not in their best interests because of the unacceptable level of risk they would be exposed to if they were to spend time with the Father and the paternal family.
It is the Mother’s evidence that when her parents initially separated she and her brothers remained in the care of her father. It is her evidence that she and her brother Mr P moved to live with her mother and the Father in or around 1993 as a result of Court Orders that were made at that time.
It is the Mother’s evidence that she lived with her mother, the Father, Mr S and Mr P in a total of five different houses during her childhood and that she attended local primary and high schools proximate to her mother and the Father’s homes in the (omitted) area.
It is the Mother’s evidence that she and Mr P would spend alternate weekends with their father.
It is the Mother’s evidence that she made friends with children who lived near the family home of herself, her mother and the Father. Annexed to the Mother’s affidavit sworn 2 August 2015 is an email from Ms O addressed to the Mother dated 27 July 2015 that states as follows:
“You definitely lived in (omitted) when we were younger if I remember correctly you first moved into a house further up the street towards (omitted) and then moved into the house opposite me you used to knock for me on the way to school in the morning and we would walk to (omitted) together there was also a time when you knocked a little late and I had left and the dog we had at the time (an (breed omitted)) attacked you and bit your arm I’m sure you still have a scar on your arm…”
Ms O’s evidence was not put on affidavit and Ms O was not available for cross-examination in the proceedings.
Tendered into evidence was an email exchange between the Mother and her maternal aunt Ms W which was as follows:
the Mother to Ms W, 26 March 2017:
“Hi Aunty Ms W,
I’m really sorry to contact you again. I have court tomorrow against Mr Downie.
I just need you to confirm if I lived full time with my mum and him or full time with my dad.
I don’t want to lead you, I am just asking if you can confirm where I lived. It would help so much.
Thank you, and I understand if you don’t make contact.
Nobody will contact you or the family.
Ms Beech.”
Ms W to the Mother, 27 March 2017:
“Hi Ms Downie,
It’s ok yes I can confirm you lived full time with your mum and Mr Downie. I suppose saying good luck for tomorrow is not the right thing to say but I hope you can get some peace. Take care x”
Whilst the Mother completed a very detailed statement to Victoria Police in relation to the alleged abuse of her by the Father, both as a child and as an adult in October 2016, that statement was not put in evidence before the Court as Victoria Police have only commenced their investigations in relation to the allegations made by the Mother.
Given the allegations made by the Mother, at all times during the trial the Mother and the Father were in different court rooms which were video linked.
The Mother found the trial process extraordinarily distressing and there were multiple breaks during the hearing of the matter to allow the Mother to compose herself when her level of distress became overwhelming. The Mother struggled to discuss in any detail the alleged abuse against her and responded to questions for greater detail by saying that she was not able to talk about it.
Despite this, with some sensitive cross-examination from all Counsel, the Mother gave evidence that the abuse by the Father of her started as follows:
“I was sleeping in my bed and there was two other beds in the room, and he came into the bedroom and got in the other – one of the other beds, and asked me to come over. And then he put my hand on his penis and his hand over the top of my hand, and – I can’t say any more. I can’t say any more.”
It is the Mother’s evidence that the first time she and the Father had sexual intercourse where there was penetration was in the third house that the parties lived in when she was maybe nine years of age.
In response to a question from the Independent Children’s Lawyer as to whether the Father bathed her, it is the Mother’s evidence as follows:
“He would bath me and my two brothers together and send them out the room so he could touch me, and then there was other instances of him forcing me to shave. He would get in the bath with me. There was a time that he sent my mum out the bathroom when I was in the bath because he wanted me to be shaved. I can’t think of any more right now.”
Also tendered into evidence was an email sent to the Mother from Ms B nee (omitted) (“Ms B”) dated 27 March 2017 which was in response to a request sent to her by the Mother in the following terms:
“…Can you send me an email of anything and everything that you remember at the (employer omitted)? I have court tomorrow and need to give it to my lawyer xx”
Ms B provided a four page email response to the Mother’s request.
In cross-examination the Mother explained that Ms B worked at the (employer omitted) which was owned by the Father and it was here that Ms B met the Mother and the Father. It is not clear from the Mother’s evidence nor Ms B’s email what year it was that she met the parties. In the email sent by Ms B she states in part the following:
“…I always remember thinking that Mr Downie treated Ms Beech differently to what a fatherly figure would and at first I thought they where just really close (sic).
I noticed different things like he used to be really touchy with her when they were talking like sometimes he would stroke her arm or be really close to her when he talked to her.
…
I remember how if Mr Downie went anywhere he always wanted Ms Beech to go with him and vice versa...
I remember going out on new years eve qith (sic) Ms Beech Mr Downie and my mum Ms J. We went to the (omitted) club which I think was just before (omitted) and Mr Downie took over the (business omitted). I remember me and Ms Beech having drinks and we were talking ro (sic) men and women that I knew locally. Mr Downie kept glaring at Ms Beech and he kept asking me how everyone was that she was talking to. I remember other people asking if anything was going on between them because they said Mr Downie was acting like more of a jealous boyfriend than a step dad.
I also remember the same night myself, my mum and (omitted) all felt uncomfortable because Ms Beech had a dress on and Mr Downie had a note (money) in his hand and he started stroking it up and down Ms Beech’s leg…
I remember in 2003 i found out i was pregnant and i remember telling Mr Downie and Ms Beech’s mum Ms C that i was pregnant and they said congratulations but i could sense a look between them that i didnt understand until i told Ms Beech i was pregnant. When i told Ms Beech she seemed really upset and she opened up to me and told me that she had been pregnant with Mr Downie’s baby but she had a termination…
I remember going on holiday with Mr Downie , Ms Beech , Mr S and Mr L and my son C. We went to a holiday home but i cant remember exactly where it was. The home was a 3 bedroom and me and my son shared a room and Mr S and Mr L shared a room. Mr Downie said he would sleep on the sofa but he never did as i never seen any covers or pillows on the sofa and i got up during the night and he was not on the sofa. So i knew he was staying in Ms Beech’s room as I popped my head in to Mr L an Mr S’s room to check on them and Mr Downie wasn’t in with them…
…we went to the (omitted) (sic) and Ms Beech were sharing a room but Mr Downie would always find an excuse to come into our room. He would come in and say ‘Ms B go and get us (me and him) two deinks (sic) each before we get ready for tonight. The bar was quite far from the roomso (sic) i didnt like to go but he would insist and he would make me feel like i was in the way and he wanted me to leave the room.
…
A couple of weeks after the fight (between the Mother and Ms B’s sister) (omitted) came to the (omitted) to talk to my mum and (omitted) about Mr Downie as he said he had stole money from him. (omitted) asked if Ms Beech and Mr Downie were sleeping together and my mum told him that Ms C had told her that Mr S had found Ms Beech and Mr Downie in bed together naked and told Ms C whi (sic) had seen them. She also said that Ms C had told her that Ms Beech had an abortion and it was Mr Downie’s baby. Mr O asked me what i knew and i told him what i knew to be true.”
When cross-examined about the contents of Ms B’s email, the Mother confirmed the contents of the email as being correct. She agreed that she had told Ms B about the abortion.
The Mother indicated that she couldn’t remember the particular night on New Year’s Eve described by Ms B when she saw the Father rubbing the money up and down her leg but recalled that this was something that the Father did on several occasions.
In relation to the holiday referred to by Ms B, it is the Mother’s evidence that they had gone to a friend of the Father’s farm in (omitted) and that she and the Father were sharing a bed. It is the Mother’s evidence she believes she was about 15 when this occurred.
In relation to the holiday in the (country omitted), the Mother confirmed that the Father would come to she and Ms B’s room and require Ms B to go and get drinks and whilst she was absent from the room he would sexually abuse her.
Ms B’s evidence was not on affidavit and the Father was not afforded any opportunity to respond to the contents of the email as it was placed into evidence after he had given his vive voce evidence.
It is the Mother’s evidence that during her childhood, despite the abuse by the Father, she considered him at all times to be her step-father.
It is the Mother’s evidence that the Father’s abuse of her resulted in a pregnancy. In her affidavit sworn 12 August 2015 and again in her affidavit sworn 20 March 2017 she deposes that the pregnancy ended in an abortion in or around 2002. She deposes that she was around
14 years of age. The Mother would have been 16 in 2002.
When giving her vive voce evidence, the Mother told the Court that after the Father and Mr S had moved to live in (country omitted) and whilst she remained in (country omitted), the Father’s former partner Mr O went to her maternal grandfather and told him that prior to the death of Ms C, the Mother had been having sexual relations with the Father, that she had become pregnant to him and had an abortion and that she and the Father had been seen naked together in the same bed.
The Mother gave evidence that after the Father and Mr S moved to (country omitted) the Father’s brother, also named Mr S, regularly visited her at her father’s home where she was staying. It is her evidence he was doing this at the behest of the Father to monitor her behaviour. On one occasion Mr Downie took her to her aunt Ms W’s home. Here he forced the Mother to tell her aunt that there had been no inappropriate sexual relationship between she and the Father and that she had never had an abortion.
It is the Mother’s evidence that despite her protestations to the contrary to her aunt, there was a general belief in the maternal family that the Mother had been in a relationship with the Father and this had undermined the relationship between the Father and her mother. Because of this she was ostracised by her family.
It is the Mother’s evidence that when she discovered she was pregnant with X she could not face the prospect of another termination. Given there was no supports available to her in (country omitted), she felt she had no other option but to move to (country omitted) to be with the Father.
It is the Mother’s evidence that the adult relationship between she and the Father was one where she felt controlled and isolated by the Father. It is her evidence that up until she commenced employment with (employer omitted), she only every worked in a business owned or managed by the Father and that all her social interactions were controlled and managed by him.
It is the Mother’s evidence that the Father was physically and sexually abusive to her throughout the adult relationship. It is her evidence that Y was conceived as a result of the Father raping her. She refutes the evidence of the Father and Ms L that it was she who insisted on having another child immediately after X’s birth.
It is the Mother’s evidence that the Father’s aggression and abuse of her escalated over the years. Counsel for the Independent Children’s Lawyer asked the Mother if she was able to tell the Court how the sexual assaults escalated over time. The Mother responded “he started using items”.
It is the Mother’s evidence that whilst in (omitted) she had to seek medical intervention as a result of one of the Father’s sexual assaults upon her. She explained her attendance to her local general practitioner on the basis that she and the Father had had consensual “rough sex”.
It is the Mother’s evidence that she left the Father in February 2012. She described that she and the Father had been out for the evening and when they got home the Father became really aggressive, that he raped her and punched a hole in the wall.
It is the Mother’s evidence that after moving to Melbourne and obtaining employment, she slowly developed a level of financial and personal independence as for the first time in their relationship she was not working with the Father. It is the Mother’s evidence that she had been preparing to separate from the Father but that the incident assault precipitated that separation.
It is the Mother’s evidence that since separating from the Father it has taken many years for her to work through the shame, embarrassment, distress and the trauma of her years of abuse at the hands of the Father It is her evidence that it has only been in the last 12-18 months that she has been able to make disclosures to DHHS and a full statement to the police.
It is the Mother’s evidence that when first questioned by DHHS about her relationship with the Father, she did not disclose the history of that relationship as she was ashamed and because she had a genuine fear that DHHS would remove X and Y from her care as she had continued to allow them to spend time with the Father knowing that he presented a risk to them.
When giving her vive voce evidence, the Mother explained that when X and Y first began living with she and Ms J at their home, X really struggled with not being in the home she had been used to living in. The Mother made the decision that at least for a short period of time X should stay with the Father and only spend day time periods with her. The Mother was asked by the Father’s Counsel whether at the time she agreed X should remain in the Father’s home she thought X would be safe at the Father’s home. The Mother responded as follows:
“I don’t believe Mr Downie would ever hurt one of his biological children. I stand by that belief.”
The Mother was then asked whether she still felt that way. She responded as follows:
“I believe it is the wrong feeling to have, but I still have that feeling. Where I am right now, I don’t believe I have the tools to assess that feeling.”
Counsel for the Independent Children’s Lawyer subsequently cross-examined the Mother about these comments. In particular, she asked the Mother:
“So that belief that Mr Downie wouldn’t hurt any of his children is not one that you are committed to?”
The Mother answered quite firmly “No” and confirmed that she does hold a belief that there is a real possibility that X and Y will be abused by the Father when in his care.
In paragraph (11) of the Mother’s affidavit sworn 12 August 2015 she deposes to now understanding after many counselling sessions at (omitted) that isolation is part of the grooming process and was part of the abuse “I had endured”. The Mother was asked whether there was an example that she could give from what she had learned at (omitted) of the Father grooming her. The Mother replied as follows:
“Making – making me feel special than the other kids, or taking me everywhere with him. He brought me a bird once, when he said he was allergic to birds and kept it in the front room, and only I was allowed to play with it, but he will be in there with me. There was instances – a lot of instances where it was just me getting things from him.”
In the second family report prepared by Ms V she sets out in paragraph (25) that the Mother:
“…alleges that Mr Downie is “targeting X at the moment” that she “is getting a lot more attention”. By this she qualified “he’s promised her a horse, but says because she doesn’t live there she can’t have it”. She further stated that the same was said of the puppies Mr Downie’s dog recently had, in that, if she lived there she could have a puppy. Ms Beech said in addition X came home with two $5 notes recently and Y $1.60.”
The Mother was asked by Counsel for the Independent Children’s Lawyer whether there were any other examples of grooming of X or Y by Mr Downie other than those mentioned in the family report. The Mother responded as follows:
“Mainly with X. I think X’s the one that he has targeted, yes…
There was an instance she came home and said that they had gone to (hobby omitted) lessons and X was allowed to do it, but Y wasn’t allowed to do it. There has been other instances where she will bring money home, that is more money than what Y has got. From what I can tell from X’s talking, she – she seems to spend more time with him on the visits than what Y does. She has more interactions.”
In paragraph (12) of the Mother’s affidavit sworn 20 March 2017 she deposes as follows:
“This sustained abuse has had a great impact on my life both in childhood and adulthood”.
The Mother was asked by Counsel for the Independent Children’s Lawyer what impact this has had on her. The Mother responded:
“It has had a horrible impact.”
Counsel for the Independent Children’s Lawyer noted that people use words like “horrible impact” and “depression” yet can function very well with those symptoms. The Mother was asked how the abuse affects her in terms of her day-to-day functioning. The Mother responded as follows:
“I can give you examples if you want…
Before the court this week Ms J bought tickets to go and see the (omitted) concert on the Sunday night. And when we got there – we were with two of her friends and when we got there we sat down and there was too many people, and then it went really dark because the concert was starting and I had to leave because I couldn’t take that – that environment. Day-to-day I will check the front door numerous times to make sure it’s definitely locked. I sleep with the hall light on. I can’t sleep with the lights off. I can’t sleep in the dark. I wake up terrified if the wardrobe doors are half open. I will wake up terrified. Generally don’t drive with my windows down in the car in case I stop at the lights and he’s there.”
The Mother also gave evidence that she recently gave up her previous employment because:
“…there was too many people in the building and people could come and go who didn’t work there, and it was getting too hard to monitor who was there. I kept thinking I was seeing Mr L. I thought I had seen him many times. So I don’t want him to turn up to this workplace as well.”
The Mother was asked did she mean Mr L or the Father. She explained she meant the Father.
The Mother was asked that given the assessment of all the professionals that despite the trauma she suffered there has not been an impact on her parenting, why a continuation of the current arrangements whereby X and Y spend supervised time with the Father couldn’t continue. It is the Mother’s evidence that:
“it has been getting harder and harder … because of the reality … that I would see him three times a week sometimes, or six times if you count pick-up and drop off. Reading all these reports and these witnesses and these affidavits and stuff, it’s making things escalate.”
It was put to the Mother that arrangements could be put in place that changeovers take place such that she would not have to see the Father. The Mother responded that she would still know the children are going to spend time with the Father.
The possibility of X and Y having supervised time four or five times a year at a contact centre was put to the Mother. The Mother indicated that she did not believe that she would handle such arrangements very well as the anxiety that would build up in the months leading up to that time would cause her to feel anxious and “not good”.
It is the Mother’s evidence that having heard the evidence of the Father’s witnesses and in particular those who are being proposed as possible supervisors of time between the Father, X and Y, she does not believe they would properly supervise any time between the children and the Father given their clear belief that he does not pose any risk whatsoever to X or Y.
The Mother was asked about the possibility of the Father being able to send gifts, letters and cards to X and Y even if there were no face-to-face time ordered. The Mother was visibly distressed at this suggestion. She indicated that these items would smell of the Father and would mean he would be coming into her home.
The Mother gave evidence of the impact on her of Y coming home with a (omitted) top that a friend of the Father’s had given him. Because that top carried the smell of the Father upon it, she became very distressed. She also indicated that X and Y come home from spending time with the Father and use gestures that are similar to those of the Father, as well as (country omitted) slang that could have only come from the Father. It is her evidence that this is very distressing for her as this brings back memories of the Father and his abuse of her.
The Mother also gave evidence of an incident where X came home with a tin in her bag after spending time with the Father. Because the tin was identical to a tin that the Father used to bang on the table in a very aggressive manner when he was angry with her the Mother became very distressed.
It has been the strong recommendation of the professionals that have seen the Mother that she is in need of intensive therapeutic counselling. It is the Mother’s evidence that she has been reluctant to undertake any counselling to date because of concerns that the Father would be able to subpoena her counselling records for the purposes of these proceedings.
In relation to the sexualised behaviours exhibited by X and Y, the Mother is unable to offer any explanation as to why those behaviours occurred other than they had been exposed to inappropriate behaviour by the Father. X had just returned from time with the Father when she did the very confronting drawings in February this year.
The Mother was questioned about the impact on X and Y if orders were made in the terms sought by her given their acknowledged close and loving relationship with the Father. It is the Mother’s evidence that she believes they would be confused and distressed. She was quite clear that she would seek professional assistance for herself, X and Y to initially explain to them why they weren’t seeing the Father and extended paternal family in an age appropriate and supportive way and for any ongoing support they may need.
Ms T
Ms T is the team manager of child protection investigation at the Department of Health and Human Services in Preston.
Ms T prepared the section 69ZW response dated 24 September 2015 that was placed into evidence before the Court pursuant to Order (5) of orders made 3 August 2015. Ms T also gave vive voce evidence at the final hearing.
It is Ms T’s evidence that she personally interviewed X, Y, the Mother and the Father over the course of the investigations undertaken by DHHS.
It is Ms T’s evidence that she first spoke to the Father on 10 October 2013 at the DHHS office in (omitted) in response to the reports received of sexualised behaviour shown by Y at childcare and because of Y’s responses at (omitted).
It is Ms T’s evidence that the Father initially suggested a cause for Y’s behaviour was a boy in the street where he lived who used bad language, behaved inappropriately and possibly exposed Y to things that were inappropriate.
It is also Ms T’s evidence that when asked for other possible explanations for Y’s behaviour the Father alleged that the Mother sold pornographic material door-to-door and possibly had sex toys lying around the house.
It is Ms T’s evidence that the Father lied to DHHS about his relationship with the Mother. It is her evidence that he totally refuted that he knew the Mother’s mother, that he was the Mother’s step-father and was adamant that he did not meet the Mother until she was 18 at her birthday party at the (omitted). The Father told Ms T that Mr S was one of three children from his marriage with Ms D. He refused on several occasions to provide DHHS with contact details for Ms D so they could speak to her.
It is Ms T’s evidence that the Father would continuously tell her that they needed to speak to the Mother who would verify what he was telling them in relation to their past relationship.
It is Ms T’s evidence that she, together with Ms K, attended upon the Father’s home at (omitted) to interview he, X and Y on 4 July 2014.
It is Ms T’s evidence that initially the Father again denied that he had been in a relationship with the Mother’s mother, that he knew Ms C and that he was therefore the Mother’s step-father. It is Ms T’s evidence that it was only after the Father was told that DHHS knew the truth of that relationship that the Father conceded he was the Mother’s step-father, had been in a relationship with Ms C for some 12 years and that he had met the Mother as a child.
Ms T described the Father during the visit on 4 July 2017 as becoming quite “escalated” at times, often getting “heightened” and that there were multiple times when she needed to calm him down. She described him as raising his voice, of getting out of his chair and of challenging the necessity for DHHS to be further interviewing him.
When interviewing X and Y, Ms T describes the Father as becoming more escalated. Despite having initially agreed to allowing DHHS to interview X and Y in their bedrooms whilst he remained in the lounge room, the Father proceeded to pace up and down the hallway making his presence well known by speaking very loudly into his mobile telephone.
It is Ms T’s evidence that after approximately 15 minutes of discussions with X and Y, the Father came into their bedroom and requested that she and Ms K leave the premises.
Whilst conceding that being interviewed by DHHS can be quite a stressful and difficult circumstance for a parent, it is Ms T’s evidence that she has never seen anyone respond and behave like the Father did on this occasion.
It is Ms T’s evidence that whilst the Mother was most reluctant to discuss her history with DHHS, she was always very keen for DHHS to be involved in investigating X and Y’s behaviours and pursuing their underlying cause.
It is Ms T’s evidence that once the Mother was aware that DHHS knew the full details of the relationship between she and the Father and the allegations that he had abused her from a young age, the Mother advised that she was simply not ready to face talking to strangers about what had happened and became genuinely distressed at the thought of having to do so.
It is the evidence of Ms T that DHHS believe the Mother’s allegations that she was sexually abused by the Father from a young age because of the consistency of the Mother’s story and her presentation over the entirety of their involvement with the Mother.
Ms T conceded that DHHS has not been able to speak to the Mother’s family in (country omitted) in order to confirm the Mother’s allegations and history in terms of where she says she primarily lived as they had been unable to locate the Mother’s father. It is her evidence the Mother was reluctant to involve her family in the investigation given her estrangement from her family and her concern that her family might be at risk due to the Father still having members of his family living in (country omitted).
It is the Father’s evidence that he arranged for his former wife, Ms D and daughter Ms F to come to Australia in order to be able to speak to DHHS and that DHHS declined to speak to them.
It is Ms T’s evidence that up until DHHS ascertaining the truth of the relationship between the Mother and the Father, the Father had repeatedly refused to provide them with contact details for Ms D.
It is Ms T’s evidence that when Ms D and Ms F came to Australia, they advised the Mother of this fact. It is Ms T’s evidence that the Mother asked DHHS not to discuss her history with Ms D and Ms F as it was too personal. Ms T explained that as a matter of policy, DHHS try to respect the wishes of those who have been victims of abuse.
It is Ms T’s evidence that DHHS spoke to Ms D and Ms F but they were not aware of the reason why they were asked to speak to DHHS or of the allegations being made. This meant there was little DHHS could discuss with them.
In the case note prepared by Ms K on 20 August 2014 which records an interview had by DHHS with the Mother on that day, it is recorded that the Mother told of a phone conversation between herself and the Father the day after Ms K and Ms T had visited the Father in (omitted). It records the Mother indicating the Father had told her that they had both told DHHS that X and Y are safe in the other parent’s care and that the phone then dropped out. The Mother told Ms K that the following text messages were sent:
Mother to the Father: “Don’t act like I’m doing you a favour, remember this was child sexual abuse”
The Father responded with a text message saying: “I know that”.
In the section 69ZW response dated 24 September 2015, there is a copy of the Confidential Court Report, Application and Disposition Report dated 9 September 2014 prepared by Ms T that was provided to the Melbourne Children’s Court on 12 September 2014 in relation to the Protection Application brought by DHHS in respect to X and Y. Page 7 of that document sets out the text exchange between the parties set out above and notes that the Mother provided DHHS with a copy of those text messages.
It is the evidence of Ms T that DHHS is of the view that there should be no time spent between X, Y and the Father. Whilst neither X nor Y have made any disclosures of abuse by the Father, DHHS hold a concern that whilst they are currently spending time with the Father in what they consider to be an unsafe environment, X and Y may well be reluctant to disclose any inappropriate behaviours by the Father.
It is Ms T’s evidence that DHHS believe that X and Y need to be engaged with a professional to work with them in a more holistic way which is possible only if they are not having contact with the person they believe is a perpetrator of abuse.
It is Ms T’s further evidence that given DHHS’ belief that the Father was a perpetrator of abuse against the Mother, it is not a long bow to draw that the Father could also have abused X and Y.
Counsel for the Independent Children’s Lawyer referred to the evidence that the Mother had an abortion whilst a minor. As she eloquently put it:
“…whether it occurred between the … ages of 13, 14, 15, 16, 17, that’s minutiae. That’s detail. What we do know is there was an abortion and there is no other hypothesis presented to your Honour, or any other alternative, that it was Mr Downie who was the person who impregnated Ms Beech. There is no evidence about her sexual activity, over and above or in addition to or in the place of Mr Downie, of any sexual activity other than with Mr Downie.”
It is submitted on behalf of the Independent Children’s Lawyer that even if the Court were to accept the Father’s evidence that his sexual relationship with the Mother did not commence until four or five weeks after the death of his partner and the Mother’s mother, this action by the Father of itself must be considered with genuine concern.
Somewhat acerbically, Counsel for the Independent Children’s Lawyer described the Father’s decision to deal with grief “by way of sexual intercourse” as being quite reprehensible.
Counsel for the Independent Children’s Lawyer made reference to the strong evidence of Dr K that even if the Father’s evidence is accepted as to how the relationship commenced, the Mother’s consenting to that relationship is incomprehensible and ignores the complex and unequal relationship dynamic and the imbalance of relationship power.
Dr K refers to that relationship (i.e. one that commenced after the Mother turned eighteen) as being exploitative and abusive given the stepfather/stepdaughter relationship in circumstances where the stepfather is also the father of the Mother’s sibling.
Counsel for the Independent Children’s Lawyer also expresses the Independent Children’s Lawyer’s concern about the sexualised behaviour of X and Y. She makes reference to that behaviour significantly subsiding after X and Y’s time with the Father was restricted and raises concerns about the inadequate supervision of X at the time she made the very sexually explicit drawings and comments in February this year after time with the Father.
The Independent Children’s Lawyer does not support that there be orders made for a continuation of the current spend time arrangements.
It is the submission of the Independent Children’s Lawyer that having heard the evidence of the persons proposed by the Father to supervise his time with X and Y, the Court could not be satisfied that if orders were made for X and Y to spend time with the Father supervised by those persons, that they would fulfil their obligations as supervisors given their complete and total belief that the Father did not abuse the Mother, that he would never abuse X and Y and that his relationship with the Mother as described by him is totally appropriate given they were not blood relations and it was not illegal.
Further, it is the submission of the Independent Children’s Lawyer that the evidence of the negative impact on the Mother’s functioning and on her parenting capacity if orders were made for any form of time between the Father, X and Y, is such that it would significantly impact on her capacity to care for X and Y and therefore would place them at an unacceptable risk of harm arising from the diminution in that parenting capacity.
Counsel for the Independent Children’s Lawyer made reference to the wording in paragraph 83 of the judgement in Blinko (supra) as being particularly relevant to this matter. The Full Court stated:
“…where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child.”
Counsel for the Independent Children’s Lawyer made specific reference to the Mother’s response when the possibility of letters, cards and gifts was raised with her. Like me, Counsel noted the Mother’s palpable agitation and distress in the witness box at that suggestion.
It is therefore the submission of the Independent Children’s Lawyer that the unacceptable risk to X and Y if orders were made for them to spend any time or communicate with the Father greatly outweighs any benefit to them of a continuation of their current meaningful relationship with the Father.
DHHS also support orders being made for the Mother to have sole parental responsibility for X and Y and for there to be no time or communication between them and the Father.
DHHS hold a very strong view that the Father poses not just an unacceptable risk but a high level of unacceptable risk of harm to X and Y if he were to spend time with them. This is because DHHS are of the belief that the Father has abused X and Y.
It is the clear belief of DHHS that the Father abused the Mother as a minor and that the abuse continued throughout their adult relationship.
In September 2014, DHHS substantiated the allegations that the Father had exposed X and Y to physical, sexual and emotional harm and it was for that reason that they brought a Protection Application to the Children’s Court and obtained a Supervision Order that placed X and Y in the Mother’s care and restricted the Father’s time to supervised time only.
Whilst X and Y have made no disclosures of abuse by the Father, it is the submission of DHHS that one of the reasons for X and Y not making disclosures is because they have continued to be in an unsafe environment and are therefore not comfortable to make any disclosures.
It is the submission of DHHS that there is a need for X and Y to engage with the appropriate professional to work more soundly with them if no time was being spent between them and the Father.
It is the submission of Counsel for DHHS that such were the concerns that they hold for X and Y in the event that they were to spend time with the Father that they chose to intervene in these proceedings, only the second time they have done so in either the Federal Circuit Court or Family Court of Australia in the last twelve months.
In the minute of proposed orders put before the Court on behalf of the Independent Children’s Lawyer, an order was sought pursuant to section 68B of the Act restraining the Father from being within 200 metres of the Mother’s residence, being within 50 metres of the Mother’s place of employment or attending or being within 50 metres of X or Y’s school.
There were no submissions made by Counsel for the Independent Children’s Lawyer or Counsel for the Mother as to the need for orders to be made in those terms. Nor was any evidence placed before the Court that the Father had behaved in a way that would necessitate this order being made.
Absence evidence for the need for such an order, that order will not be made.
Presumption of Equal Shared Parental Responsibility
Section 61DA of the Act provides that 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. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
Given the allegations of abuse by the Father of the Mother, the allegations of abuse by the Father of X and Y and the finding of this Court that the Father poses an unacceptable risk of harm to X and Y, the presumption of equal shared parental responsibility is clearly rebutted.
Further, given the inability of these parties to communicate, this is not a matter where such an order could be seen to be in X and Y’s best interests.
It is noted that the Father concedes that an order for equal shared parental responsibility would not be practical in this matter and he is not seeking orders that he and the Mother have equal shared parental responsibility.
Consideration of Equal Time or Substantial and Significant Time
Where the parents have equal shared parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Where an order is made for a parent to have sole parental responsibility for a child, the Full Court in the matter of Goode & Goode (2006) 206 FLR 212 held that the Court should still consider whether it is in the best interests for the child to spend equal time or significant and substantial time.
In this matter it is the proposal of the Mother, the Independent Children’s Lawyer and DHHS that X and Y spend no time with the Father on the basis that it is the only order that is in the best interests of X and Y.
The Father is seeking Orders for X and Y to spend regular supervised day time with him.
As can be seen neither party is proposing orders for equal time or significant and substantial time. In the circumstances of this case, this must be seen as appropriate.
Conclusion
This extremely difficult and distressing matter fundamentally revolves around the question of whether the parties’ two children, X and Y, spending time with the Father poses such an unacceptable risk of harm to them that it outweighs any benefit to them of having a meaningful relationship with him.
The Father in these proceedings was in a relationship with the Mother’s mother, Ms C, for some twelve years between 1992 and 2005. Their son, Mr S, was born in (omitted) 1993.
At the time the Father commenced the relationship with the Mother’s mother, the Mother was aged six.
It is the Mother’s evidence that whilst she initially lived with her father when her parents separated, she and her brother moved to live with her mother and the Father when she was seven years of age.
It is the Mother’s evidence that not long after she commenced living with her mother and the Father, the Father began sexually abusing her and that this abuse continued throughout the entirety of her childhood.
In (omitted) 2005, shortly before the Mother’s nineteenth birthday, her mother died of cancer.
The Father is adamant in his denial that there was any sexual relationship between he and the Mother during her childhood. It is his evidence that some four or five weeks after the death of his partner and the Mother’s mother, he and the Mother had sexual relations for the first time.
It is his evidence that this was a consensual relationship that quickly developed into a loving and happy adult relationship.
In or around (omitted) 2006, the Father and Mr S immigrated to (country omitted) where the Father had been born. Shortly after the Father and Mr S moved to (country omitted), the Mother discovered she was pregnant to the Father. Because she had been ostracised by her family who by then knew of her relationship with the Father, she was left with no other option, given the lack of support in (country omitted), but to move to (country omitted) to join the Father.
It is the Mother’s evidence this was her second pregnancy to the Father and that the first ended in a termination prior to her 18th birthday.
After living in (country omitted) for three years, the parties moved to (omitted) in Queensland where they were joined by the Father’s son from his first marriage, Mr L, then aged eighteen years.
In 2011 the family all moved to Melbourne when the Mother obtained a (occupation omitted) position with a (employer omitted) company.
The parties separated in February 2012. It is the Mother’s evidence that this occurred after the Father had assaulted and raped her one night. It is the Father’s evidence separation occurred because the Mother had formed a relationship with her now partner Ms J.
After the parties separated, they put in place an arrangement whereby they shared the care of X and Y.
The family first came to the attention of DHHS in late 2012 as a result of sexualised behaviour exhibited by Y at childcare.
In 2013, the family again came to the attention of DHHS because of Y continuing to exhibit sexualised behaviour at kindergarten and also because of concerning comments made by him as part of his counselling at (omitted) where he had been referred following the initial concerns about his behaviour.
The Mother disclosed the abuse by her of the Father during her childhood to her partner Ms J. Ms J was attending a counsellor, in part due to difficulties in her relationship with the Mother, and told her counsellor of the Mother’s disclosure about her childhood.
In accordance with mandatory reporting requirements, Ms J’s counsellor made a report to DHHS.
It is the evidence of DHHS that the Mother was initially very reluctant to discuss her history with the Department. It is the evidence of DHHS that the Father on more than one occasion told them that he first met the Mother at the (omitted) on her eighteenth birthday and denied that he knew Ms C or had been in a relationship with her. He denied Ms C was the Mother’s mother.
The Father also told DHHS that Mr S’s mother was his first wife Ms D and that Mr S was one of three children that he had with her.
It is the evidence of DHHS that the Father only conceded the nature of his relationship with Ms C and his relationship to the Mother when they told him that they had independently verified this.
Because of the ongoing concerns in relation to X and Y’s sexualised behaviour and because of the allegations of the Father’s childhood abuse of the Mother and his denial of same, DHHS substantiated their concerns that the Father was exposing X and Y to physical, sexual and emotional harm and made a Protection Application to the Children’s Court in September 2014.
An Accommodation Order was made by the Children’s Court which placed X and Y in the care of the Mother and allowed supervised time only between the Father and X and Y.
In April 2015, the Children’s Court proceedings were concluded on the basis of an undertaking between the parties that the Father would only spend supervised time with X and Y until such time as orders were made under the Family Law Act.
Proceedings were commenced by the Father in this Court in August 2015. Orders were made for X and Y to live with the Mother and spend day time only with the Father on the basis that named individuals were in substantial attendance at all times.
It is the evidence of the Mother that she believes the Father poses an unacceptable risk of harm to X and Y if they were to spend any form of time with him or to communicate with him in any way.
It is the Mother’s evidence that given the Father’s abuse of her as a child and the sexualised behaviours exhibited by X and Y when they were spending significant unsupervised time with him and more recently, the drawings by X after she spent what was effectively unsupervised time with the Father, the Court must be satisfied that he poses an unacceptable risk of sexually abusing the children.
It is further submitted on behalf of the Mother that whilst she was initially able to compartmentalise what had happened to her at the hands of the Father from his parenting of X and Y, her ability to do so has diminished over time. This has been particularly as a result of these proceedings, the disclosures that she has made and because she has finally been able over a twelve month period to make a full statement to Victoria Police about the abuse that she suffered at the hands of the Father.
It is the Mother’s evidence that the trauma and psychological impact on her of X and Y continuing to spend time with the Father even if it is on a supervised basis, is impacting and will impact on her parenting capacity to the extent that going forward there will be a risk of significant harm to X and Y because of her reduced parenting capacity.
It is the Mother’s evidence that even if time were professionally supervised, the lead up to that supervision would cause her significant trauma. It is also her evidence that any provision for the Father to send X and Y cards, gifts and letters would be equally as traumatising for her because anything that came from the Father would be a reminder of him and his abuse and would intrude on the sanctity and safety of her home.
As noted, the Father is adamant in his denial of abuse of the Mother as a child and that he in anyway has ever abused X or Y. Whilst he is adamant that he poses no risk to X or Y, he proposes that Orders be made for him to spend supervised time with them in order for there to be no doubt that they would be safe in his care.
Both the Independent Children’s Lawyer and DHHS support orders being made in the terms proposed by the Mother as both are of the view that any other order would place X and Y at significant risk of harm.
As has been set out in this judgment it is not possible on the evidence before the Court to make a finding on the balance of probabilities at the highest level that the Father sexually abused the Mother as a child. As has also been set out in this judgment, it is not possible for this Court on the evidence before it to make a finding that the Father did not sexually abuse the Mother as a child.
It is also not possible for this Court on the evidence before it to make a finding that the Father is the cause of Y and X’s sexualised behaviour. However, given the circumstances under which the sexualised behaviour occurred and particularly, that the most recent inappropriate drawings by X occurred after the Father had effectively spent unsupervised time with her, the Court cannot make a finding that the Father is not the cause of their sexualised behaviour.
Accordingly, in all those circumstances, the Court is satisfied that the Father poses an unacceptable risk of harm if X and Y were to spend unsupervised time with the Father.
The question that must then be considered is whether that risk of harm can be ameliorated by orders that provide for supervised time or some other form of communication so that X and Y are afforded the opportunity to maintain a meaningful relationship with the Father.
It is the evidence of the Mother, supported by Dr K and
Ms V, that the impact on the Mother of orders for supervised time between the Father, X and Y and/or of any communication between them is such that it would have a sufficiently detrimental impact on her parenting that X and Y would be placed at risk of harm.
From the observations of the Mother over the seven days of this trial, not only in the giving of her evidence but in her responses to the evidence of the Father and his witnesses, it is apparent that the Mother’s distress at the idea of there being any time between the Father, X and Y and her evidence as to the impact this would have in her parenting was genuine.
I am therefore satisfied that this is a matter where X and Y spending time with the Father would so erode the Mother’s capacity to properly care for them that it cannot be seen in their best interests to spend time and communicate with the Father because of the significant risk of harm to them that the Mother’s reduced parenting capacity would involve.
In all those circumstances, orders will be made that the Mother have sole parental responsibility for X and Y, that they live with the Mother and that they spend no time with the Father and there be no communication between them and the Father.
The Father’s counsel in closing submission sought an order that the Mother be restrained from relocating interstate or overseas with X and Y without the written consent of the Father of order of the Court.
It was submitted by the Father’s Counsel that once the police have completed their investigations of the Mother’s allegations, the Father may be in a position to make application to the Court for a variation of any orders made at this time. It was argued that if the Mother had relocated, specifically overseas, the Father’s capacity to make such an application would be severely hampered.
The Mother and Independent Children’s Lawyer oppose this application by the Father.
Counsel for the Mother and the Independent Children’s Lawyer argued that any action or lack of action by the Police in relation to the Mother’s allegations would not alter the current finding of this Court that the Father poses an unacceptable risk of harm to X and Y. It was further submitted that any decision or action by the police will not alter the finding of this Court that an order for supervised time between X, Y and the Father would so reduce the Mother’s parenting capacity such that it would place them at an unacceptable risk of harm.
It was submitted that the Mother should have the ability to make all decisions in relation to X and Y’s best interests that an order for sole parental responsibility entails, including where they live.
I agree with the submissions made on behalf of the Mother and Independent Children’s Lawyer. The findings made in this matter and the orders to be made are such that the Mother should be free to make decisions as to where she, X and Y reside without the need for the consent of the Father or the imprimatur of this Court.
Accordingly, the Father’s application for an order restraining the Mother’s movements will not be granted.
Given the impact on X and Y of their not having a relationship with the Father and that this decision and their family history needs to explained to them in a child appropriate way, orders will be made that the Mother do all things necessary to enable the children to attend for therapeutic counselling upon an appropriately qualified child psychologist as nominated by the Independent Children’s Lawyer. The Orders will also provide for the Independent Children’s Lawyer to provide X and Y’s psychologist with a copy of this order, the judgment, the family reports of Ms V and the report of Dr K.
I certify that the preceding five hundred and twenty one (521) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 24 May 2017
Key Legal Topics
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Family Law
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Remedies
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Injunction
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