EGAN & TIMMONS

FAMILY COURT OF AUSTRALIA

EGAN & TIMMONS

[2014] FamCA 814

FAMILY LAW – CHILDREN – Where the mother seeks sole parental responsibility and for the father to spend supervised time only with the children until each reaches the age of 16 years – Where the children have made disclosures of sexual abuse by the father – Whether the father presents an unacceptable risk to the children – Finding made that the father does not present an unacceptable risk to the children – Orders made facilitating the reintroduction of time to be supervised with the father and for the mother to have sole parental responsibility.

Family Law Act 1975 (Cth)

M and M (1988) 166 CLR 69

APPLICANT:

Ms Egan

RESPONDENT:

Mr Timmons

INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

FILE NUMBER:

MLC

10105

2008

DATE DELIVERED:

24 September 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

26, 27 & 28 May 2014

REPRESENTATION

SELF REPRESENTED APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Hamilton

SOLICITOR FOR THE RESPONDENT:

Thexton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

That all extant parenting orders be discharged.
That the mother have sole parental responsibility for the children Z born … 2006 and Y born … 2008.
That prior to making any decision pursuant to Order 2 hereof regarding the children’s health (save in the event of a medical emergency), education, religion or living arrangements, the mother provide to the father not less than 14 days prior notice in writing of her proposed decision and not implement such decision until the expiration of 14 days to enable the father to provide to her a written statement of his view concerning the proposed decision.
That the children live with the mother.
That the children spend time and communicate with the father as follows:-
(a)For a period of six months for up to five hours but not less than two hours on each alternate Saturday or Sunday on the following basis:-
(i)     Such time to be supervised by an employee of a contact centre at such times as nominated by the said contact centre or in the supervision of a professional supervisor as employed by the father at such times as agreed with the professional supervisor;
(ii)    The costs of the contact centre (if any) or of the professional supervisor to be paid by the father;
(iii)     In the event that time with the father at the father’s discretion is to occur at a contact centre, then each of the mother and the father make application to and complete any intake session as required by the said contact centre if such procedure has not already been undertaken;
(b)Upon the completion of the six months of supervised time provided in Order 5(a) hereof, for a period of three months each alternate Saturday from 10.00 am until 3.00 pm;
(c)At the expiration of the period of three months provided in Order 5(b) hereof, each alternate Saturday from 10.00am until 5.00pm; and
(d)Upon the father commencing to spend time with the children in accordance with paragraph 5(b) hereof, he spend time with the children on the following occasions:
(i)     Commencing Term 2, 2015 each school term holiday for a period of three consecutive days from 10.00 am until 5.00 pm each day at times to be agreed, and failing agreement commencing on the first Saturday after the commencement of the said holiday period;
(ii)    During long summer holiday periods for a period of three consecutive days in each of the first, second and third weeks of the said holiday period from 10.00 am until 5.00 pm each day on days as agreed and failing agreement commencing on the Monday of each week;
(iii)     On Christmas Day from 12.00 noon to 5.00 pm in 2015 and each alternate year thereafter;
(iv)   On Christmas Day from 3.00 pm to 8.00 pm commencing 2016 and each alternate year thereafter;
(v)    On Father's Day from 10.00 am to 5.00 pm;
(vi)   By telephone on one day per week at times to be agreed and failing agreement on Wednesday from 7.00 pm to 7.15 pm, the mother to arrange and facilitate the children to telephone the father on a landline number provided by the father to the mother; and
(vii)    On the father’s birthday and the children’s birthdays for a period of two hours at times to be agreed and failing agreement from 4.00 pm to 6.00 pm;
(e)The father’s time with the children be suspended on Mother's Day and the mother’s birthday; and
(f)As otherwise agreed between the parties in writing.
That all changeovers which are not subject to the necessity of supervision pursuant to these orders shall occur at the boundary of the mother’s residence at B Street, Suburb C.
That the mother and the father each keep the other informed as to their current residential address, telephone numbers (including mobile telephone and mobiles) and their current email addresses.
That the mother and the father each notify the other without unreasonable delay in relation to any serious illness or injury suffered by either of the children requiring medical or hospital attention during their period of care, including the name of any treating medical practitioner or allied health professional.
That the father be at liberty to obtain from the children’s school information and photographs at his cost, if any, concerning the children’s social and academic progress which the school provides for release to parents.
That any passports held by the Court concerning the children be released into the possession of the mother.
That the father be and is hereby restrained from:-
(a)Bathing or showering the children;
(b)Assisting the children in going to the toilet
during any period when the children are in his care AND THE COURT NOTES that the father agrees to this order with a denial as to the necessity, but in order to offer the children and the mother some comfort.
That the father be and is hereby restrained by himself his servants or agents from referring to the child Y by any other name.
That the mother and the father each be and are hereby restrained by themselves, their servants or agents from:-
(a)Denigrating the other to or within the hearing of the children or either of them; and
(b)Discussing these proceedings in the presence of or hearing of the children or either of them;
That the appointment of the Independent Children’s Lawyer be discharged as and from the date of these orders.
That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.
That all extant applications be otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10105 of 2008

Ms Egan

Applicant

And

Mr Timmons

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Originally, these proceedings related to the parenting arrangements in respect of the children of two families, the common denominator being the respondent who is the father of three children, S, aged 14 who is the child of the first applicant and the respondent, and Z, aged eight and Y, aged six who are the children of the second applicant and the respondent.
Given the nature of the allegations made by each of the applicants in respect of the respondent’s conduct towards the children, the proceedings issued by each of the applicants were consolidated and the two proceedings were listed to be heard together on 26 May 2014.
At the commencement of the hearing the parties sought that the matter be stood down for some discussion, particularly with respect to the issues around the child S. Shortly prior to lunch on the first day of the hearing I made final orders with respect to S, those orders being made by consent and with the support of the Independent Children’s Lawyer. Accordingly, the first applicant took no further part in the proceedings.
The competing applications of the second applicant (“the mother”) and the respondent (“the father”) with respect to the parenting arrangements for Z and Y proceeded upon the making of those orders.
At the time of the trial, Z was aged seven years and Y five years. The children have been the subject of proceedings before the Federal Magistrates’ Court (as it then was) and more recently in the Family Court since 2009.
In October 2011 the children Z and Y, each allegedly made disclosures of inappropriate sexual touching by the father. As a result of those disclosures the mother made an application to the Court seeking a suspension of the father’s time with the children.
The father has at all times maintained that he has not engaged in inappropriate behaviour with the children. Upon the allegations being made and the subsequent investigation by the Department of Human Services (“DHS”) and this Court, the father was reluctant to engage with professional services assisting the family. The father’s attitude towards the investigations and the recommendations made by professional services as part of those investigations has impacted upon the time he has spent with the children since the alleged disclosures and the manner in which these proceedings have progressed.
Due to the nature of the allegations made by the children and the father’s initial refusal to engage with counselling and other services as recommended, professional contact supervising services have been unable to provide supervision for the father’s time with the children. As a result of the position of the contact centres, orders were made suspending the father’s supervised time with the children in May 2012. Accordingly, the father has not spent time with the children since May 2012.
The mother’s position at the commencement of the trial was that she should have sole parental responsibility for the children, that they should live with her and that the father’s time “be reserved” until such time as he has complied with the recommendations of the experts engaged to assess the father. Further, upon the father’s compliance with those recommendations the mother sought that the father spend time and communicate with the children on a supervised basis until each child attains the age of 16 years.
The father seeks orders that the parties have joint parental responsibility for the children and that he spend time and communicate with them for gradually increasing periods, culminating in three nights per fortnight on an alternate weekend basis as well as daytime periods each alternate Sunday.

THE PARTIES

The mother is Ms Egan, aged 42. She is engaged in part-time employment in retail.
The mother lives in Suburb C with the two children the subject of this application, Z born in 2006 aged 8 years and Y born in August 2008 aged 6 years. In addition, the mother has a child from a previous relationship, T who is aged 19 years.
The father is Mr Timmons, aged 49 years. He is employed as a consultant. The father lives in Suburb D.
Pursuant to orders made by consent at the commencement of the final hearing, the father spends time with S, each alternate weekend from after school Friday to the commencement of school Monday. In addition, pursuant to orders made on the first day of the hearing there is provision for the father to spend holiday time and special occasions with S.
The mother and the father commenced their relationship online in or about September 2005. They travelled together with their respective children from previous relationships to the United States where they married in December 2005, returning to Australia in early January 2006. Separation occurred on 31 March 2008. At the time of separation Z was aged approximately 18 months, and the applicant was approximately five months pregnant with Y. The parties divorced in July 2009.

BACKGROUND

In March 2009 the father commenced proceedings in the Federal Magistrates’ Court seeking orders with respect to parenting arrangements for the children. Final orders were made in those proceedings by Federal Magistrate Connolly (as he then was) on 5 November 2009. Those orders provided that the children live with the mother and spend time and communicate with the father for gradually increasing periods until the children spend one overnight period and one full day period with the father each fortnight.
The children continued to spend time with the father pursuant to the orders made in November 2009 until October 2011, when disclosures were made by Z and Y that their father had sexually abused them. Following those disclosures Victoria Police commenced an investigation and DHS became involved with the family.

THE DISCLOSURES

It is alleged by the mother that Y entered the bathroom whilst his maternal grandfather was showering and attempted to grab his grandfather’s penis. When told not to touch him, Y responded with words to the effect “Daddy always lets me”.
The child Z later allegedly made disclosures to the maternal grandmother to the effect that the father would get Z to “squeeze his penis”.
Neither the maternal grandmother nor the maternal grandfather gave evidence at the final hearing.
As a result of those disclosures the mother contacted police at Suburb E. Z was interviewed by the Sexual Offences Unit at Suburb E police on 12 October 2011. No disclosure was made by Z during that interview.
Following the police interview the mother delivered Z to kindergarten. That day, Z made a further disclosure to his kindergarten teacher, Ms F. Ms F swore an affidavit and was cross-examined in relation to the alleged disclosure made by Z. It was her evidence that during a conversation with Z on 12 October 2011 he stated:
My daddy touches my penis when I am in the shower. He touches it for a long time, I think he wants to hold it till I die. Daddy wants me to touch his penis but I don’t. I don’t like it when daddy touches my penis. He does it when we get in the shower. Daddy touches my penis and it hurts and I say ouch. [Y] touches daddy’s penis and he squeezes it hard. I don’t like going to daddy’s house because he touches my penis because he shouldn’t touch it. But you mustn’t tell anyone because it is our/a secret.
As a result of the disclosure made by Z to his kindergarten teacher, she notified the police in accordance with the mandatory reporting provisions.
Following that report, Z was again interviewed by police and completed a VARE tape. Z made disclosures of inappropriate touching by the father during that interview.
The father was interviewed by the police and DHS on 13 October 2011. The father denied the allegations that he had inappropriately touched the children.
At the time of the disclosures Z was then aged four years, eight months and Y was two years and seven months.
Both children were interviewed by protective workers from the Department of Human Services on 20 October 2011. On that occasion they again made disclosures of being sexually touched by the father.
As part of the investigation by DHS, the child S who was then aged eleven-and-a-half years was also interviewed. At no time has S made disclosures of sexually inappropriate behaviour by the father.

PROCEDURAL HISTORY FOLLOWING DISCLOSURES

As a result of the disclosures, the mother ceased making the children available to spend time with the father.
On 13 December 2011, the mother filed an Initiating Application in the Federal Magistrates’ Court (as it then was) seeking the reservation of the father’s time with the children. That application was listed for an interim hearing on 25 January 2012.
In anticipation of that hearing DHS provided a report to the Court on 20 January 2012. That report detailed the disclosures made by the children. At page 11 of that report, it states that “a decision has been made to substantiate the reported protective concerns relating to sexual and emotional harm that has occurred/likely to occur to … [Z] and [Y]”.
As a result of the substantiation of the reported protective concerns, the DHS report made the following recommendations:-
·That the children remain in the full-time care of their mothers;
·The father’s access with the children remain supervised;
·The children be encouraged to undertake/continue counselling;
·The father to engage in a VicPsychPlus assessment; and
·The father to engage in anger-management courses.
The matter came before Federal Magistrate Phipps (as he then was) on 25 January 2012. That day, Federal Magistrate Phipps suspended the operation of the parenting orders made 9 November 2009. In addition, he made an order that until further order the children spend time and communicate with the father, such time to be supervised by DHS at times and places agreed between the parties for a period of no less than one and half hours per week. In addition, orders were made for the parties to do all things as may be required to facilitate the father spending time with the children at a contact centre. The father was also ordered to attend for a psycho-sexual assessment. The matter was otherwise adjourned for a further interim hearing on 26 March 2012.
The father attended for a psycho-sexual assessment with Dr H on 7 March 2012. Dr H’s report of that date stated that the purpose of her evaluation was to “conduct a comprehensive mental health assessment and to assess the potential sexual abuse risk posed by the father to his children.”
It is evident from her report that the father was a reluctant participant in that assessment. For example, at paragraph 2 of her report Dr H notes that the father “appeared somewhat hostile and showed disinterest in his participation in the assessment”. Further, at paragraph 10 of her report Dr H noted“[o]verall, he appeared somewhat annoyed, disinterested, and at times, relatively hostile, during the assessment.”
Dr H noted in her assessment the father’s response to the allegations. At paragraph 70 of her report she stated:-
[The father] denied the commission of any sexual abuse against his children. He further stated to the author that he believed [the mother] has mental health concerns. He further implied that [the mother] has rendered influence upon [Z] and [Y] causing them to make sexual abuse allegations against him.
Whilst Dr H concluded at paragraph 160 of her report that the father represents a “Low to Low-Moderate risk” of offending against his children, she nonetheless made a series of recommendations for the father to undertake psychological treatment to address issues around his emotional awareness, identification and regulation, boundary-setting, stress and coping mechanisms and to develop skills in interpersonal relationship and perspective-taking ability. Further, she recommended that the father undertake parenting programs to develop his understanding and skills in areas such as “establishing age-appropriate boundaries, discipline issues, and any other areas that DHS deem suitable to him”. It was her view that it was unlikely that there would be any improvement in the father’s interpersonal style without such intervention. Accordingly, it was Dr H’s recommendation that there be a progress review of the father and the children in three to six months.
Following the release of Dr H’s assessment there was a further interim hearing in the Federal Magistrates’ Court on 26 March 2012.

On 26 March 2012 the interim proceedings were again listed before Federal Magistrate Phipps. That day, orders were made for the father to spend time with the children at a contact centre in Suburb I. The matter was otherwise transferred for hearing in the Family Court of Australia due to the complexity of issues in the case.
Notwithstanding the orders made on 26 March 2012, the father did not commence spending time with the children at the contact centre due to its refusal to offer that service. At that time, the father was refusing to participate in the psychological counselling and parenting program recommended by Dr H. He was also refusing to undertake an anger management course as recommended by DHS. Given that DHS had substantiated protective concerns in relation to the children, and the father was unwilling to participate in the programs recommended by DHS and Dr H, the contact centre determined that it was not in a position to facilitate time as it could not ensure the safety of the children in that setting.
DHS supported the father having supervised time with the children and provided such supervision between November 2011 and May 2012. DHS was not in a position to offer supervision after that date. As a result of the withdrawal of DHS supervision and the inability of the Suburb I contact centre to provide its services, the father has not spent time with the children since May 2012.
The matter was listed in the Family Court on 8 May 2012 and that day an order was made for the appointment of an Independent Children’s Lawyer.
At a further hearing before Senior Registrar Fitzgibbon on 28 May 2012, orders were made for the father to attend upon such psychologist as recommended by Dr H to address the issues identified by her in her report dated 7 March 2012. In addition, orders were made for the father to enrol, attend and complete a parenting program as recommended in Dr H’s report. The matter was otherwise adjourned for further hearing on 11 July 2012.
On 11 July 2012 the matter was allocated to the list of cases awaiting final hearing in this Court.
Trial directions were made for the preparation of the final hearing on 23 January 2013. Pursuant to those directions, a family report dated 24 April 2013 was prepared by Ms G, family consultant.
Due to the unavailability of witnesses in the matter, including the husband’s psychologist, Dr J, the trial did not proceed when originally listed. Ultimately, the hearing commenced before me on 26 May 2014.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon the following material:-
·Outline of case for trial dated 28 October 2013;
·Amended Initiating Application filed 4 March 2013;
·Outline of case dated 15 April 2013;
·Notice of Child Abuse or Family Violence filed 8 May 2012;
·Her affidavit filed 26 July 2013;
·Her affidavit filed 10 May 2013;
·Affidavit of Ms K filed 8 March 2013;
·Affidavit of Ms F filed 8 March 2013;
·DHS Confidential Report to Court dated 20 January 2012;
·DHS Confidential Report to Court dated 22 March 2012;
·VicPsychPlus report of Dr H dated 7 March 2012;
·Organisation L report dated 23 April 2011;
·Family report dated 24 April 2013;
·Affidavit of Dr J sworn 13 May 2013.
In addition to the material filed in these proceedings, the mother, in her case outline sought to rely upon material produced under subpoena by Victoria Police, Dr A and Dr J.
At the commencement of the hearing the mother sought orders in the following terms:-
·That the mother have sole parental responsibility for making decisions regarding the children;
·That the children live with the mother;
·That the father’s time with the children be reserved until such time as he has:-
(a)    Complied with the orders requiring him to undertake psychological counselling and a parenting program, being the orders of 28 May 2012;
(b)    Produced certification that he has completed therapy with a psychologist;
(c)    Been reassessed by Dr [H] as posing no risk of physical, sexual, psychological or emotional harm to the children;
(d)    Successfully completed an anger-management course and provided written evidence of the same; and
(e)    Upon the father’s compliance with the above conditions, the children spend time and communicate with him until each child attains the age of 16 years as follows:-
(i)On no more than six occasions each year such time to be supervised at a contact centre;
(ii)Such time to be subject to the children’s wishes;
·In addition, the mother required that the father undertake a yearly progress review with a forensic psychologist.
·In the alternative, the mother sought an order pursuant to s 65L of the Act requiring the family consultant to provide supervision, such supervision to continue for two years after the date of any orders.
·That the father be restrained by injunction from:-
(a)    Discussing parenting arrangements with the children or in their presence;
(b)    Discussing with the children “any aspects of his past criminal behaviour”;
(c)    Attending the children’s kindergarten and schools;
(d)    Coming into the presence of the children outside of the contact centre; and
(e)    Communicating with the children outside of the contact centre.
·That the father be restrained by injunction from referring to the child [Y] by any other first name.
The father relied upon the following material:-
·Outline of case filed 13 May 2014;
·Amended Response to Initiating Application filed 12 April 2013;
·His affidavit filed 23 July 2013;
·His affidavit filed 11 April 2013;
·Affidavit of Dr J filed 21 October 2013;
·Affidavit of Dr J filed 13 May 2013;
·Family report dated 24 April 2013;
·Reports of Dr H dated 7 March 2012 and 18 November 2013.
The orders sought by the father at the commencement of the proceedings were as follows:-
·That the father and the mother have joint parental responsibility for the children;
·That the father spend time and communicate with the children as follows:
(a)    Each weekend from 9.00 am to 5.00 pm Saturday for a period of two months;
(b)    Thereafter from 9.00 am to Saturday to 5.00 pm Sunday each alternate weekend for a period of two months;
(c)    Thereafter each alternate weekend from after school Friday to the commencement of school Wednesday for a period of two months;
(d)    Thereafter in a two-week cycle, in the first week from after school Friday to the commencement of school Monday, and in the second week from 9.00 am Sunday to 5.00 pm Sunday;
·For half of all school holiday periods; and
·For specified time on special days, including Father's Day, Christmas Day and the children’s and the father’s birthdays.
The Independent Children’s Lawyer (“the ICL”) relied upon the following material:-
·Outline of case document filed 21 May 2014;
·Documents produced under subpoena from Department of Human Services and Victoria Police;
·Reports of Dr H dated 7 March 2012 and 18 November 2013;
·Family report dated 24 April 2013.
At the commencement of the hearing the ICL indicated that subject to a testing of the evidence she would support the recommendations of the family consultant as contained in the family report dated 24 April 2013.
Each of the parties’ positions changed during the course of the trial. By the time of closing submissions, each of the parties had reviewed and amended their position.
The orders sought by the mother and tendered in the course of her closing argument are set out at Exhibit R4. In summary, the orders sought by the mother at the conclusion of the hearing are:-
·That the mother have sole parental responsibility for the children;
·That the mother advise the father of any medical treatment for the children by email;
·That the father be at liberty to obtain any school reports for the children from their respective schools;
·That the father be restrained from calling the child Y by any other first name;
·In the event there be a finding that the father poses no risk to the children, the father spend time with the children;
·That the father be restrained from toileting or bathing the children;
·That the time with the father be subject to him providing proof of his current residential address;
·That the father’s time with the children be supervised for a period of nine months, such time to be on a fortnightly basis at a contact centre at such times as available but for a period of no less than three hours;
·That at the conclusion of the nine-month period the time with the father progress to each Saturday from 10.00 am to 3.00 pm, such time to continue for a period of two months;
·At the expiration of that period, the father’s time be each Saturday from 9.00 am to 6.00 pm.
The father’s position at the conclusion of the trial is set out in Exhibit F2. That position can be summarised as follows:-
·That the father and the mother have equal shared parental responsibility for the children; and
·That the father spend time and communicate with the children as follows:-
(a)    For a period of three months each alternate weekend for at least two hours at M Contact Centre;
(b)    Thereafter for a period of two months from 12.00 noon to 5.00 pm each Saturday;
(c)    Thereafter from 9.00 am Saturday to 5.00 pm Saturday each weekend;
(d)    From 10.00 am to 5.00 pm on Father's Day;
(e)    At specified times on the children’s and the respondent’s birthdays and on Christmas Eve and Christmas Day;
(f)     That the father be restrained from assisting the children with their toileting, showering or bathing while in his care;
(g)    Upon the commencement of time pursuant to sub-paragraph (c) during school holidays for three consecutive periods from 9.00 am to 5.00 pm each fortnight of the school holidays at times agreed and failing agreement for Monday, Tuesday and Wednesday at the commencement of each fortnight.
The ICL also tendered a Minute of Proposed Order at the commencement of closing submissions. The ICL’s position is that set out in Exhibit ICL 1. The orders sought by the ICL as set out in that exhibit include:-
·That the children live with the mother;
·That the mother have sole parental responsibility for the children but that she shall without any unreasonable delay notify the father in writing concerning any decisions she makes in relation to the children’s health, education, religion or living arrangements;
·The children spend time with and communicate with the father as follows:-
(a)    For a six month period for up to five hours but no less than two hours on each alternate Saturday or Sunday as determined by the availability of a supervisor, such time to be exercised in the supervision of an employee of a contact centre at such times as nominated by the contact centre or in the supervision of a professional supervisor as employed by the father at such times as agreed with the professional supervisor, the costs of such supervision to be paid by the father;
(b)    Upon the expiration of the six months supervised period each alternate Saturday from 10.00 am to 3.00 pm for a period of three months;
(c)    Thereafter on each alternate Saturday from 10.00 am to 5.00 pm;
·Upon the commencement of the alternate Saturday time the father commence spending time with the children during school term holidays for three consecutive days from 10.00 am to 5.00 pm and during the long summer vacation period for three consecutive days in each of the first, second and third weeks of the holiday period from 10.00 am to 5.00 pm each day.
·On Christmas Day, Father's Day for specified periods;
·The father be restrained from bathing or showering the children or assisting the children in going to the toilet during the periods when the children are in his care.
The mother was self-represented throughout the proceedings. She was diligent in her compliance with Court orders as to the preparation of the matter. It was evident from the material prepared by her that she had carefully considered the issues before the Court and had paid close regard to the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), including but not limited to the matters to be taken into consideration in assessing what is in the children’s best interest in accordance with s 60CC of the Act.
At the commencement of the hearing, as the mother was unrepresented, I provided each of the parties with copies of ss 60B, 60CA, 60CB, 60CC, 60CD and 60CE of the Act. I informed all parties that in accordance with the provisions of the Act I must have regard to the best interests of the children as the paramount consideration. Further, I informed all parties that in determining what is in the children’s best interests I would have regard to the considerations set out in s 60CC of the Act. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
Given that the focus of the proceedings was the determination of issues related to the alleged disclosures made by the children as to the father’s inappropriate behaviour towards them, it was agreed between all parties that the matter should proceed on the basis that the father’s case go first; that is that the father be called as the first witness and cross-examined first with his witnesses to follow and thereafter the mother open her case and call her witnesses.

THE RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is, they seek orders with respect to:-
·Allocation of parental responsibility for the children; and
·With whom the children are to spend time.
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Sections 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.
For the reasons set out later in this judgment, I am satisfied that it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses. In what follows, statements of fact constitute findings of fact.
The primary issue in this case was the allegation by the mother that the children had made disclosures of sexual abuse by the father. The correct approach in considering such allegations was considered in M and M (1988) 166 CLR 69. There the High Court made it clear that when proceedings involve an allegation that a child has been sexually abused, it does not alter the paramount and ultimate issue for the Court, of the child’s best interests. The resolution of an allegation of sexual abuse is subservient and ancillary to the Court’s determination of what is in the best interests of a child.
At page 77 the High Court noted:-
…There will be very many cases such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring…and assessing the magnitude of that risk.
The High Court then considered how to define the magnitude of the risk with great precision and concluded that the test was best expressed by saying that the Court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk of sexual abuse”.
The relevant standard of proof in relation to allegations of sexual abuse is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the Court must take into the account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses.

THE ISSUES

The issues in this case, as identified in the parties’ case outline documents and other materials relied upon and during the course of the hearing, may be summarised as follows:-
·Allocation of parental responsibility;
·Whether the children have been sexually abused as alleged by the mother;
·Whether the children are at risk of harm in the father’s care;
·Whether the children should spend time with the father; and
·If it is determined that it is in the children’s best interests to spend time with the father, whether such time should be supervised.
The issues identified above can most conveniently be discussed within the s 60CC considerations. I will first address the primary considerations pursuant to s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

As a general proposition, it is in the children’s best interests that they have a meaningful relationship with both parents as well as members of their extended family.
Brown J considered the question of what is a meaningful relationship in the decision of Mazorski & Albright [2007] FamCA 520. At paragraph 25 of her judgment Brown J concluded that a meaningful involvement “is one which is important, significant and valuable to the child”. Ordinarily, it will be in a child’s best interests to have a meaningful relationship with both parents, that is a relationship that is important, significant and valuable, as was contemplated by her Honour.
It does not follow that because a parent does not at the date of the final hearing have a meaningful relationship with a child that it is not in that child’s interests to have such a relationship.
The question squarely before the Court in this matter is, in light of the allegations raised by the mother, is it in the children’s best interests that they have the opportunity of a meaningful relationship with the father.
The children have lived with the mother since the time of the parties’ separation in 2008. As the parties separated prior to Y’s birth, he has never lived with his father. There is no challenge to the position that the children should continue to live with their mother and that she will continue to have a meaningful involvement in their life.
At the time Ms G conducted interviews with the parties and the children in March 2013, the children had not spent time with the father for a period of approximately 10 months. The observations Ms G made of the children with their father in that context is striking.
At paragraph 56 of the family report Ms G notes the interaction which occurred between, Z and Y and the father in the waiting area. She notes:-
56.The children approached their father without hesitation and interacted with him briefly until they left with [the mother] for lunch.
57.All three children were responsive to their father and interacted with him positively. [Y’s] play became somewhat frenzied whilst in the presence of his father. He was rambunctious and testing of boundaries … [Y] referred to his father as [an abbreviation of the father’s given name]. [Z] was somewhat reticent with his interactions with his father, choosing for the most part to continue to play with other games. Toward the latter part of the observation however, [Z] engaged in a joint game with his father and brother’s and he appeared to enjoy himself in this activity. The children hugged and kissed their father upon his departure and [the father] was noted to be visibly emotional.
That evidence was not challenged.
I am satisfied based upon the observations of Ms G that the father has an established meaningful relationship with the children; it is a relationship which has withstood a significant interruption.
The matter for determination is whether or not the father poses a risk to the children sufficient to warrant the continued cessation of that relationship; that is, whether the father poses a risk to the children and if there is a risk, whether that risk is “unacceptable”.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Following the alleged disclosures by the children the mother commenced proceedings in the Federal Magistrates’ Court in December 2011. Accordingly the provisions of s 60CC(2A) do not apply.

ALLEGATIONS OF SEXUAL ABUSE

The cornerstone of the mother’s application is the allegations that the children have been subject to sexual abuse at the hands of the father giving rise to the need to protect the children from that harm.
As noted above, the children and particularly Z made a series of disclosures to the maternal grandparents, Z’s kindergarten teacher and DHS workers in October 2011. Z also made disclosures to Ms G, the family consultant[1].
[1] Family report dated 24 April 2013 (“family report”) paragraphs 52 – 53.
Initially, the father denied all allegations. That denial was maintained by the father during interviews with DHS workers between October 2011 and November 2011. The father continued to maintain that position during his assessment by Dr H conducted in February 2012. Indeed at paragraph 70 of her first report dated 7 March 2012, Dr H notes the father’s response to the current concerns to be as follows:-
[The father] denied the commission of any sexual abuse against his children. He further stated to the author that he believed [Ms Egan], [Z] and [Y’s] mother, has mental health concerns. He further implied that [the mother] has rendered influence upon [Z] and [Y] causing them to make sexual abuse allegations against him.
The father modified his position in subsequent affidavits. In his trial affidavit filed 11 April 2013, at paragraph 24, the father deposes:-
24.In relation to the disclosure of [Z] regarding the squeezing/touching of my penis, I do not deny that this occurred. In or about October 2009, fairly soon after overnight contact started, the children were undressed ready for their bath. I took my clothes off to jump into the shower. [Z] was fascinated by seeing a naked person and reached over and touched my penis. I did not reprimand him forcefully because I felt that if I reacted too strongly he would [be] uncomfortable with his body and that of others. I grew up playing sports and in the locker room. It would always be a strange environment – I did not want my son to experience that awkwardness by not knowing or understanding his own body. In any case, I quickly stopped him touching my penis and went on with getting the children ready for the day. [Y] was present throughout this incident.
25.I deny touching [Z’s] penis, or attempting to touch his penis. I have read the disclosures made by [Z] in his VARE interview on 12 October 2011 and deny those allegations save for what I have described … above.
Whilst acknowledging that he had permitted Z to touch his penis, during interview with the family consultant, Ms G, the father took little responsibility for the children’s subsequent disclosures. The father provided several hypotheses for the disclosures by the children, including:-
·That the mothers had worked collaboratively;
·That the maternal grandfather wished to keep the father away from the children; and
·That Z’s disclosure, as alleged, has been taken entirely out of context[2].
[2] Family report, paragraph 25.
During the course of the interview with Ms G, the father did eventually acknowledge that he had in fact allowed Z to touch his penis for “one or two minutes tops”. Ms G noted at paragraph 25 of her report that that admission “contradicts previous statements by [the father] in which he stated ‘twenty seconds’”.
The father was cross-examined by both counsel for the ICL and the mother in relation to his initial denial of the allegations and his subsequent admission that Z had touched his penis in the bathroom. During cross-examination the father conceded that the whole incident from getting into the shower to the touching of the penis lasted for about two minutes. Throughout his evidence the father was clear that there was no sexual element to the touching; he confirmed that at the time it was his view that it was nothing more than a child’s natural desire to explore the male anatomy.
At interview for the family report, Ms G questioned the father as to whether or not he felt the mother’s response to the disclosure by Z was appropriate. The father stated to Ms G “she’ll always see the worst in what I do”[3]. That response was indicative of the father’s attitude towards the mother and likely the genesis of much of the conflict between the parties.
[3] Family report, paragraph 26.
During cross-examination the father was questioned as to why he did not inform DHS, the police or Dr H that the children had touched his penis. The father did not respond to those questions, simply stating that there was no sexual aspect to the touching but merely curiosity on the part of the children.
It was evident from the manner in which the mother presented her case that she placed much emphasis on the number of disclosures made by Z to herself, the maternal grandparents, the police, DHS and his kindergarten teacher. I accept that Z has made those disclosures.
However, that a four year old child has made such disclosures does not of itself establish that he has been a victim of sexual abuse; regard must be had to the setting in which such disclosures are made.
The mother was cross-examined by counsel for the ICL as to the circumstances of the children’s disclosures. The mother conceded that there were no disclosures of abuse in the initial VARE taped interview with Z and that as a result, a worker from DHS informed her that they planned to close their investigation.
The disclosure to Ms F occurred subsequent to that taped interview and after Z had been taken to kindergarten having been previously interviewed. By that time, he had been exposed to discussion of the allegations in the mother’s household as well as in the context of the police interview. Following the disclosures at the kindergarten, the maternal grandmother collected Z from kindergarten and returned him to the police where a further interview was conducted. Neither the maternal grandmother nor grandfather were called to give evidence by the mother. Hence, the question of what discussions each had with the children regarding their disclosures is not known. In the days following those interviews the children were interviewed by workers from DHS.
Between December 2011 and April 2012 Z attended counselling with Ms K, a counsellor/advocate at a sexual assault centre. Z was seen on 12 occasions by Ms K. Ms K was cross-examined by counsel for the father and the ICL. She confirmed during her oral evidence that the basis upon which she counselled Z was that sexual abuse had in fact occurred; it was not her function to conduct a forensic assessment of the issues.
During her oral evidence the mother conceded that the children had been exposed to adult conversations regarding these proceedings. Further, to her credit, the mother admitted that she was not always present when the children are with her parents and not privy to what is said by her parents regarding the father in the children’s presence. The mother also conceded that whilst she has tried to conceal her anxiety and distress regarding these proceedings from the children, the children may be aware of her feelings regarding the father.
Ms K confirmed that a focus of her counselling with Z was to teach him self-protection skills in relation to inappropriate touching and to provide him with techniques to prevent any reoccurrence of such touching. It was submitted by counsel for the ICL, and I accept, that the counselling of Z at a sexual assault centre on the basis that he had been abused was likely to reinforce in Z that he was unsafe in his father’s care. It was further submitted by counsel for the ICL that little weight could attach to any disclosures said to be made by Z following the initial interview, particularly in circumstances where Z had been exposed to a range of discussions regarding those allegations with a number of people who did not give evidence in these proceedings. I accept that submission.
In circumstances where:-
·the husband denies the allegations of sexual abuse, having conceded that he did permit the child to engage in what he described as innocent touching;
·the children made no disclosure of sexual abuse when initially interviewed; and
·subsequent to that initial interview the children were exposed to discussion of the allegations by the adults in their sphere;
I am not satisfied, on the balance of probabilities that the children have been sexually abused. Notwithstanding that finding, there remain issues as to whether the children are exposed to unacceptable risk in the father’s care.
When giving his evidence, the father maintained a righteous and unapologetic position. Somewhat begrudgingly, the father conceded that upon review, it was inappropriate of him to permit the children to touch his penis.
The evidence of both Dr H and Dr J, the father’s treating psychologist provides some insight as to the father’s attitude and behaviour.
In her report dated 7 March 2012, Dr H made a series of recommendations. At page 27 of that report Dr H stated:-
169. [The father] participate in psychological treatment to address issues, such as, emotional awareness, identification and regulation (focus on identification and dealing with a range of emotionality is also highly recommended), boundary-setting, stress and coping mechanism, and to develop skills in interpersonal relationship and perspective-taking ability.
170. [The father] undertake parenting programs to develop his understanding and skills in the areas of establishing age-appropriate boundaries, discipline issues, and any other areas that DHS deem suitable to him.
171. Given the psychological mechanisms at work, and the nature of [the father’s] interpersonal style, it would appear highly unlikely that any improvement will spontaneously occur. However it is recommended that a progress review of [the father] and the children be conducted in three to six months’ time.
As a result of those recommendations, orders were made on 28 May 2012, which included that the father undertake psychological therapy.
Following those orders, the father attended upon Dr A in or about July 2012. Following the father’s initial attendance upon Dr A he was subsequently informed that Dr A could not assist with his on-going counselling.
As a result, the father was referred to Dr J, psychologist. The father commenced consulting with Dr J on 25 September 2012. Dr J has prepared two reports in this matter which are annexed to his affidavit filed 21 October 2013.

DR J’S EVIDENCE

Dr J attended Court and was cross-examined in relation to his reports and assessment of the father. The father attended Dr J on two occasions in the latter part of 2012 and on approximately five occasions in 2013. Dr J confirmed during cross-examination by the mother that during his initial appointments with the father, the father was not truly engaged in the counselling process. It was Dr J’s evidence that through the passage of time the father’s attitude to the counselling process changed.
Dr J stated that during his initial consultations with the father the focus of those sessions was the father’s distress arising from the Family Court proceedings. Dr J described the father as “somewhat bombastic” on the first occasion that he consulted with him.
Dr J’s evidence was that the father “settled down” after the first consultation. It was Dr J’s assessment that the father has a “child-centred approach” to his family.
Dr J confirmed during his viva voce evidence that he had worked with the father in relation to the disclosures made by the children, and particularly in relation to the incident with Z in the shower. Dr J’s evidence was that the father had discussed the incident with him. Whilst Dr J could not remember the specific details of the incident, he could recall the father’s description as to the context in which Z touched the father’s penis. Dr J confirmed that he had worked with the father to address the risk factors associated with those behaviours and to work with the father’s ability to appropriately set boundaries.
Dr J was clear in his evidence that it was not his function to determine the facts around the incident which occurred in the shower; rather, his role was to assist the father in treatment around his boundary and limit setting. Dr J confirmed that in that context he had worked with the father in the strongest terms to educate him that he should not permit such touching again.
Dr J confirmed that in accordance with the recommendations of Dr H he had worked with the father to assist him in understanding the importance of boundary-setting. Dr J’s evidence was that he had provided psycho-education for the father about boundary-setting and personal space for bathing; that he had explored these issues with the father and emphasised these matters with him intermittently throughout the consultation process. Dr J confirmed that it was his view that by the conclusion of those consultations the father did grasp the importance of boundary-setting and indicated an awareness that what had occurred in the shower with the children must never happen again. I accept that evidence.
Dr J confirmed that during his initial consultations with the father the father exhibited hostility at his situation. However, the father recognised “pretty early on” that what had occurred between he and the children was ill-advised. Dr J confirmed that the father’s initial reaction was defensive. He confirmed that the therapy engaged with the father has assisted the father in developing insight as to his behaviour. I accept the evidence of Dr J that as a result of the work undertaken by him with the father, there has been a shift in the father’s understanding as to what is appropriate and inappropriate touching.
The evidence of the father supports that view. Under cross-examination the father was clear in his recognition that what had occurred with Z had crossed the threshold of what is appropriate interaction between parent and child. Further, the father acknowledged in the strongest of terms that there could be no reoccurrence of such behaviour. The father confirmed that he would consent to orders not to bathe or toilet the children in the future. I accept that evidence.
Significantly, Dr J observed of the father’s personality and presentation that, “he’s got a put up your dukes style” and it was his view that it was this personality trait that was exhibited by the father in response to the disclosures made by the children.
The evidence given by Dr J was insightful and helpful in assessing the father and his conduct in the context of these allegations. The evidence of both Dr H and Dr J as to the father’s confrontational style was consistent. I accept the evidence of both Dr H and Dr J that the father’s defensive and confrontational personality-type drove his initial reluctance to make any concessions that his behaviour with the children was inappropriate.
I am satisfied that when the disclosures were being investigated by DHS the father demonstrated little insight as to the appropriateness or otherwise of his behaviour in permitting Z to touch his penis. Further I am satisfied that the father demonstrated little insight or regard for the potential impact of the children’s disclosures upon the mother. Ultimately, the father’s refusal to make such concession as to the inappropriateness of his own behaviour gave rise to genuine concern as to his conduct with the children (in permitting the touching) and as to what were the motivations behind those behaviours.

DR H’S EVIDENCE

As noted above, the father’s firm view was that there was no sexual element in his behaviour in permitting Z to touch his penis.
Dr H conducted a detailed assessment of the father’s risk of sexual offending and at paragraph 160 of her report dated 7 March 2012 assessed the father as presenting a “Low to Low-Moderate risk of offending against his children”. The focus of the recommendations in Dr H’s report was that the father participate in psychological treatment around his interpersonal style and emotional awareness.
Dr H performed a review assessment of the father on 10 November 2013 and her assessment is set out in her second report, dated 18 November 2013 annexed to her affidavit filed 29 November 2013. At paragraph 17 of that report, Dr H confirmed that the father’s propensity to commit acts of “sexual aggression” appears to be at “the low end of the risk categories”.

Significantly, Dr H observed at paragraph 21 of her second report that:-
[The father] appeared to have made positive progress in the areas of emotional identifications and regulation, boundary adherence, and interpersonal skills development. He also appeared to possess an adequate level of perspective-taking ability. He was particularly insightful in identifying and understanding his children’s interests, and how he might possibly re-engage them in the future.
Dr H was cross-examined by the mother and counsel for the ICL. I found Dr H’s evidence to be thoughtful and considered. Dr H confirmed under cross-examination that the father’s responses to the testing conducted by her revealed that there were few concerns.
She confirmed that there were areas identified in her first report which needed to be addressed, particularly with respect to the father’s capacity for boundary-setting and insight. It was as a result of those identified issues that the father was referred to Dr J. Dr H confirmed that she had referred the father to Dr J based on her knowledge of Dr J’s work and the results that work has yielded. She confirmed that she had confidence in Dr J’s capacity to assist the father.
Dr H confirmed in her viva voce evidence that by the time of her second review assessment of the father his risk profile had changed from that of “Low to Low-Moderate” to “Low”.
Dr H attributed the change in the father’s risk profile to the fact that he had participated in psychological counselling and had attended a parenting course. Dr H confirmed that at the time of the second interview the father demonstrated “very good insight”. She described his presentation as having “drastically improved”. I accept that evidence.
Dr H confirmed that as a result of her review assessment, it was her view that given the low risk profile of the father supervision was “not warranted”. However, although it was her view that the father does not require supervision, she stated that the father will need continued support during the period of reintroduction of the father’s time with the children.
Having regard to the evidence of the father, Dr H and Dr J, the psychiatrist and psychologist who have assessed and treated the father, I am satisfied that the father does not pose an unacceptable risk to the children.
There is no question that the father failed his children when he did not stop Z from touching the father’s penis. That issue was compounded when the father denied that such inappropriate touching had occurred. I accept the father’s explanation as to the circumstances in which that touching occurred. I am satisfied that the father has, albeit initially reluctantly, sought and engaged in counselling with Dr J to address issues around that behaviour. Having regard to the father’s evidence and that of Dr J and Dr H, I am satisfied that the father now understands the risks he posed to the children in not stopping the behaviour that occurred in October 2011. Further I am satisfied that in light of the events that transpired subsequent to the disclosures and as a result of the therapeutic counselling engaged in by him, that the father will not allow a recurrence of such behaviour in the future.

Y’S NAME

In addition to the issues relating to the alleged sexual abuse, the mother raises concerns with respect to the name the father uses when addressing the child Y. Y was born after the parties’ separation. Seemingly the father has never agreed to the name the mother gave Y following his birth. Instead the father has during time spent with Y referred to him as “N” which the father says is the name that he and the mother decided to give Y prior to his birth. This has been an issue between the parties for a considerable period of time.
More importantly it has been an issue for Y. That this is so is evident from the DHS report dated 20 January 2012. At page 7 of that report it is noted that on 7 November 2011 during a supervised access period the father began calling Y, “N”. Thereafter the report notes:-
It is documented that [Y] appeared to get upset and stated ‘[t]hat is not my name, my name is [Y], don’t call me [N] that’s not my name’. [The father] responded by stating ‘That is your name and I will call you [N]’. [The worker] was present at the beginning of the access and requested that [the father] call [Y] by his first given name, however [the father] stated ‘[N] is his real name and I will continue to call him that’.
Thereafter, the report notes that Y’s engagement with the father was limited and that Y appeared to be refusing to interact with the father. A similar exchange occurred on 14 November 2011. At page 8 of the report it is noted:-
Similarly to the previous supervised access it is documented that when [the father] called [Y] ‘[N]’, [Y] became visibly distressed, stating ‘[N] is not my name, it is [Y], call me [Y]’.
This matter was addressed by Ms G at paragraph 24 of the family report. As to the father’s attitude in relation to this matter she notes:-
On the issue of [Y’s] name, [the father] stated that he continues to refer to [Y] as ‘[N]’. He did not identify this as problematic for [Y] and in fact described Court orders preventing him from call [Y] “[N]” as ‘”ridiculous”. [The father’s] view is that [Y] has become resistant to being called “[N]” simply because of his mother’s problematic response to such.
Ms G reports that Y’s attitude to this issue was clear and unequivocal. At paragraph 55 she notes:-
[Y] does not like it when [the father] calls him [N]. He stated ‘I don’t want him to call me [N], every time he calls me that and I don’t like it, my name is [Y’s given name, middle name and surname].’ [Y] repeatedly returned to this topic during the interview. Despite his expressed frustrations around the issue of his name [Y] was excited at the prospect of seeing his father.
Again, the father’s steadfast insistence that his view must prevail, notwithstanding the fact that Y has carried his name since birth and has stated in the strongest of terms that he wishes to be addressed by that name highlights the limited insight the father has as to what is in his children’s best interests. In light of the father’s evidence with respect to this matter I am satisfied that it is appropriate that Y be protected from the conflict around his name and the potential for such conflicts to cause him further psychological harm. Accordingly, I will make orders continuing the injunction restraining the father from referring to Y by any other first name.
I must now consider the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
At the time of the hearing Z was aged seven years and Y five years. Neither child has spent time with the father since approximately May 2012 at which time they were aged five years 10 months and three years nine months respectively..
The children did not express any views to Ms G, and having regard to their ages and the limited time the children have had with their father since May 2012, I am satisfied that little weight can attach to any views expressed by them.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The mother is the unchallenged residence parent for the children. During interview with Ms G in March 2013 the mother was observed to have difficulties in managing the children’s behaviour in that setting. At paragraph 58 of the family report Ms G described the mother’s attempts to manage the children’s behaviour as “entirely ineffectual”.
At paragraph 70 of the family report Ms G observed that the mother has:-
…demonstrated an inability to manage the children’s, at times, unruly behaviour. The children appear to view the mother as ineffective in her discipline of them and, as such, are unresponsive to her attempts to place boundaries around their behaviour. [The mother] also presents with a high degree of anxiety.
Ms G postulated that:-
It is likely that the children respond to their mother’s increased anxiety around their contact with their father and this, in turn, impacts on their behavioural presentation.
As a result of the observations made by Ms G of the children’s behaviour at interview, Ms G recommended that the mother engage in therapeutic treatment to assist her in managing the symptoms of her anxiety and to gain insight as to the impact of her anxiety on the children and to assist her in developing parenting strategies.
During her oral evidence the mother confirmed that she had sought therapeutic support from the sexual assault centre and more recently with Dr O, psychologist who has assisted her with her anxiety. At the time of the hearing the mother confirmed she was attending her psychologist on a monthly basis. The mother stated that she was managing her anxiety better now than she did a year ago. I accept that evidence.
The manner in which the mother has presented her case confirms her commitment to the children’s care and welfare. Having observed the mother throughout the proceedings, I am satisfied that she is a loving mother whose primary focus is to protect and nurture the children.
At the time of the preparation of the family report the children had not seen the father for a period of approximately 10 months. Nonetheless, during observation with Ms G, both children indicated an interest in and willingness to spend time with the father. At paragraph 52 of the family report Ms G noted:-
[Z] immediately announced to the writer that he was going to write a letter to his daddy to say “I miss you”. [Z] proceeded to complete his letter in which he wrote, “Dear daddy, I miss you, how has it been for you, I hope it is a good time”. When asked why he thought he was present at Court, [Z] stated ‘because I need to see my daddy’.
At paragraph 53 of her report, Ms G observes:-
[Z] misses his father. He is worried that he would be “touched on the penis again” if he were to visit his father at his home. Otherwise he does not have any worries … [Z] thought he would enjoy playing with this father if he were to spend time with him at home.
As noted earlier in these reasons, when the children came into contact with the father in an unplanned manner at the interview with Ms G, the children approached the father without hesitation and interacted with him briefly and positively.
Ms G noted that as the session progressed the father “engaged in a joint game with the children”. At the conclusion of the session Ms G noted “The children hugged and kissed their father upon his departure and [the father] was noted to be visibly emotional”.
What is striking about that evidence is that notwithstanding the significant interruption to the children’s relationship with the father the children were able to re-engage with the father in that setting with relative ease. Ms G was cross-examined by counsel representing the ICL and the father as well as the mother. During her viva voce evidence Ms G confirmed her observations as to the children’s unplanned meeting with the father in the waiting area noting that:-
There was certainly no hesitation from them at that point, so I certainly gained a sense that there was a relationship – a pre-existing, strong relationship there.
At paragraph 66 of the family report Ms G observes:-
The children clearly share a bond with their father, despite an almost 12-month hiatus in their relationship with him. Whilst it became clear that [the mother] has shared adult information with the children, about their father, their capacity to recall positive memories of [the father], and to view spending time with him within a mostly positive framework, is indicative that [the mother’s] narrative about [the father] is unlikely to be entirely negative. Given the nature of the children’s relationship with their father, they would likely benefit from arrangements which provide for them to spend time with [the father].
Ms G is a psychologist and family consultant who has significant experience in working with families such as the parties in these proceedings. Her evidence was measured and thoughtful. Her observations in relation to the children’s relationship with the father were not challenged. Accordingly, I accept that the children have a positive attachment to the father. The question for the Court is to determine how the children’s relationship with the father can be supported and nurtured in the future.
(c)the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
As noted above, Ms G observed at paragraph 66 of the family report that notwithstanding the very serious allegations levelled against the father by the mother with respect to sexual abuse, and also with respect to causing psychological harm to the child Y, the mother has succeeded in ensuring the children have a largely positive view of the father.
The mother was cross-examined by counsel for the ICL in relation to her attitude and approach should orders be made for the children to spend time with the father.
During her viva voce evidence, the mother confirmed that it was her clear view that the children are not safe with the father. Much of her distrust of the father relates to his initial refusal to acknowledge that he had allowed Z to touch his penis and further that he did not engage in the counselling and parenting programs recommended by both DHS and Dr H.
The mother confirmed during her evidence that if the father were to undertake the recommended therapies to “make him safe” she would feel greater comfort. Further she opined that if the father were to engage in and discuss the allegations openly, and apologise she would then be open to the children having some unsupervised time.
The mother was questioned as to how she would respond if there was a finding that the father does not pose an unacceptable risk to the children. The mother confirmed that she would need to seek counselling to assist her but that she would do so for the children. Further she confirmed that if the Court ordered the children to spend time with the father she would ensure that there were “quick change-overs, always positive – I will encourage and do what I have to do to make sure the children don’t suffer”.
The mother impressed as a truthful witness who has carried a significant burden in terms of the concerns she has held for the children arising out of the disclosures made by them. The mother has shown a willingness to engage in therapeutic supports to assist her in parenting the children. I am satisfied that she will continue to enlist such therapeutic support as she requires to enable her to support and encourage the children’s continuing relationship with the father.
The father has not demonstrated the same commitment to supporting the children’s relationship with the mother. That this is so is evidenced by his original initiating application in which he sought that the children live with him and spend unspecified time with the mother.
Ms G noted those proposals in the family report and at paragraph 67 of that report observed:-
[The father’s] application for [Y] and [Z] to live primarily with him, and spend limited time with their mother, does not take into account issues relating to the children’s primary attachment relationships which they likely share with their mother, given [the mother’s] primary care role to date. [The father] lacked insight into the significant emotional and psychological impact such a change to the children’s primary care arrangements may have on their overall functioning and well-being.
The father was highly critical of the mother during interview with Ms G. At paragraph 21 of the family report Ms G notes that whilst conceding that a change of residence would be a change for the children, the father stated that the mother “does not look after them 100%” but rather has assistance in their care from her parents. At paragraph 20 of the family report Ms G records the father’s description of the mother as “very manipulative”, “always disrupting” and “very controlling with these kids”.
To his credit, the father amended his application prior to the commencement of the hearing such that he did not seek to disrupt the children’s long-standing living arrangements with the mother.
Nonetheless, having regard to the father’s attitude towards the mother as noted by Ms G in the family report, Dr H in her original assessment, and the father in his trial affidavit, I am satisfied that the father is unlikely to promote or encourage the children’s relationship with the mother. As a consequence, those concerns support the need for the children’s time with the father to be supervised for a significant period to ensure that the children are protected from exposure to the father’s critical attitude towards the mother.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The orders I propose to make will ensure that Z and Y continue to live with the mother. Her role as their primary care-giver will be protected and maintained.
In addition, I propose to make orders that will enable the children to spend time with the father in a supervised setting for an extended initial period and thereafter for them to spend daytime only time with the father. This will ensure that the children have the opportunity of developing and maintaining a positive relationship with their father in a safe and secure setting.
That supervision is necessary to ensure that the children are supported during the period of reintroduction to their father. Such supervision accords with the recommendations of Ms G. When asked by counsel for the ICL as to the need for supervision of the father’s time, Ms G observed:-
…initially supervision would be required but that is a requirement for the children to be supported in their reintroduction with their father, not as a protective measure against risk necessarily because my understanding is that, as we’ve just spoken about, the indications are that the risk is low. So there’s a few things. I think the supervision is not seen as an indefinite. It places significant restrictions around children’s interactions with their parents and, really, if we’re talking about indefinite supervision, one would really question the purpose of the contact at all … Supervision really is going to, in this case, be there to reintroduce the kids to dad after a significant period of time where they haven’t seen him.
Having regard to the clear recommendations of Ms G, I am satisfied that supervision of the father’s time is appropriate.
There is a dispute between the parties as to who should be responsible for the costs of such supervision.
The ICL submits that initially supervision should occur at a contact centre or with the assistance of a professional supervisor. Further, the ICL submits that the costs of such supervision should be borne by the father. Those submissions are supported by the mother.
The mother alleges that she does not currently receive child support for the children, and further, that the father has accrued significant arrears of child support. Further, the mother alleges that the father has understated his income to the Child Support Agency. The father concedes that there are arrears of child support owing. He states in his trial affidavit filed 11 April 2013 at paragraph 79 that he is a bankrupt and “working off” his debts.

As noted earlier in this judgment, had the father adopted the recommendations of DHS and Dr H at an earlier stage in these proceedings, it is likely that the need for supervision may have been significantly curtailed or obviated. I am satisfied that responsibility for the need for supervision must rest largely with the father.
In those circumstances and given that the mother is solely responsible for the financial support of the two children, I am satisfied that it is appropriate that the father meet any expenses arising as a result of the necessity for supervision.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
Ms G had the opportunity of observing the children individually and with their parents. At paragraph 51 of the family report she notes that Z presents as a “vivacious, articulate and talkative six year old who participated in an interview with confidence”. At the time of the interview with Z he was in Grade 1 and was reported to enjoy playing with his friends. At paragraph 55 of the report Ms G noted that Y presented “as a happy and somewhat precocious child who appeared to have some speech articulation difficulties”.
Both children are reported to be progressing well relative to their peers.
Since their birth the mother has provided for the children’s physical, emotional and intellectual needs. In respect of Y, she has met all of those needs as a single parent. As noted above, I am satisfied that the mother has the ability to support the father having a meaningful relationship with the children.
At issue is the father’s capacity to provide for the needs of the children including their emotional and intellectual needs. As noted earlier in this judgment, concerns have been raised as to the father’s level of insight and ability to assess and provide for the children’s emotional needs, particularly insofar as his persistence in using the name “N” when referring to Y. I will make orders requiring the parties to address Y using his given name; such orders will ensure that Y is not exposed to further distress with respect to this issue.
Further, as identified earlier in this judgment there have been significant concerns as to the father’s insight and understanding as to boundary-setting and management of the children’s behaviour around appropriate and inappropriate touching. Based upon the evidence of Dr H and Dr J as noted above, I am satisfied that the father has actively worked to address these issues. I am satisfied that the father now has a clear understanding as to what is appropriate and inappropriate behaviour in this regard.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with factors relating to parental capacity and attitude. I will also consider the matters contained in s 60CC(4) and (4A) of the Act.
As detailed earlier in this judgment, I am satisfied that the father lacked maturity and insight in the manner in which he dealt with the alleged disclosures made by the children, particularly Z. Further, I am satisfied that when the disclosures were made the father demonstrated an almost belligerent attitude towards the mother and the professionals engaged to investigate the disclosures, particularly DHS and Dr H. The consequence of that attitude was the cessation of the father’s time with the children for an extended period.
Had the father demonstrated a willingness to cooperate with those professionals, it is likely that his time with the children would have been restored at a much earlier stage in these proceedings. In maintaining his righteous position, the father elevated his own needs above those of the children.
I am satisfied that the manner in which the father responded to the disclosures is likely to have heightened the animosity between the parties and exacerbated the anxiety experienced by the mother.
The mother has throughout the children’s lives demonstrated an unwavering commitment to promoting their health and welfare. The protection of the children from harm has been a motivating force for her in pursuing these proceedings.
I have no doubt that the father loves the children and is committed to developing his relationship with them. However, I am satisfied that the father’s confrontational style and reluctance to make any concessions with respect to his own behaviour have been to the detriment of his parenting relationship. Further, I am satisfied that the father’s dismissive attitude towards the mother and her desire to protect the children has overshadowed the needs of the children.
Happily for the children, the father has reflected and acknowledged now that the manner in which he dealt with the children and permitted Z to touch his penis was inappropriate. I am satisfied that with the appropriate safeguards in place, including orders preventing the father from bathing or toileting the children that there will be no recurrence of that behaviour.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These considerations are not relevant in this matter
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Insofar as these matters are relevant they have been dealt with in other parts of this judgment.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
It is always desirable to make orders that are the least likely to lead to further proceedings in relation to a child.
Z and Y have been the focus of litigation between the mother and the father since the time of the disclosures in about 2011.
The orders I will make will bring an end to that litigation. They will do so in a setting where the children can continue to live with the mother and spend time, initially supervised, with the father in a safe and secure setting. The mother has confirmed that she will continue to engage with psychological counselling to support her in the transition to the children resuming their time with the father.
As part of the orders, I will build as many safeguards as possible around the children’s time with the father in order to remove the prospect of a return of this matter to court.

CONCLUSION

The first issue for determination is the question of parental responsibility. The mother seeks orders for sole parental responsibility. That application is supported by the Independent Children’s Lawyer. The father seeks an order for equal shared parental responsibility.
As noted earlier in this judgment a characteristic of the relationship between the mother and the father is the ongoing conflict between them. In her oral evidence the mother described her ongoing anxiety and fear when dealing with the father. When cross-examined by the counsel for the Independent Children’s Lawyer she confirmed that she was scared for her safety and had been for a long time.
The mother’s anxieties were noted by Ms G at the time of the preparation of the family report. Indeed at paragraph 38 of the family report, Ms G observed:-
[The mother] presented as highly anxious and this appeared to impact on her capacity to effectively communicate. She presented at times throughout the day as vague and had difficulty providing an accurate and coherent history. She was emotionally reactive and was quite uncontained at times.
To her credit, the mother has taken on board the recommendations of Ms G and is endeavouring to address her issues around her anxieties. The mother has engaged in continuing therapeutic counselling to address those issues.
Nonetheless, the mother continues to suffer from anxiety and requires ongoing support. Those anxieties are likely to be heightened at least during the initial periods when the children are spending time with the father.
The father has adopted a confrontational and bombastic attitude when dealing with the allegations raised during the course of these proceedings. I am satisfied that the father’s response and attitude to the allegations has likely heightened the mother’s anxieties.
The mother has been the children’s primary care-giver since their birth. I am satisfied that it is necessary to support her in that role.
Having regard to those circumstances, I am satisfied that given the highly conflictual relationship of the parents, that it is not in the children’s best interests that their parents have equal shared parental responsibility. I am satisfied that the nature of the parents’ relationship is such that any order for a sharing of parental responsibility is likely to give rise to further conflict between them; such an outcome would not be in the children’s best interests. Accordingly, I am satisfied that the presumption of equal shared parental responsibility is rebutted.
Whilst I will make orders that the mother have sole parental responsibility, I will require that the father continue to be informed in relation to any significant decisions regarding the children’s health, education or welfare and that he have an opportunity to express any view held by him to the mother in writing prior to the implementation of such decisions. In this way, the father will continue to have active and meaningful input in such decisions.
The next issue for determination is whether the father should spend time with the children and in what setting. As foreshadowed earlier in this judgment, I am satisfied that it is in the children’s best interests that they spend time with the father. During her viva voce evidence, Ms G stated that it was her view that the children would require supervision for a period of three to six months to “allow the children enough time to be introduced to dad and to start to feel more comfortable with him in the care role again”. I accept that evidence.
During closing submissions, counsel for the ICL submitted that the father’s time should be supervised for a period of six months, and that such supervision be provided at a contact centre or by a professional supervisor employed by the father. That submission accords with the recommendations of Ms G.
Thereafter, counsel for the ICL submitted that the children should spend time with the father each alternate Saturday for a period of five hours, extending to a period of seven hours after a period of three months. Again, that submission accords with the recommendations of Ms G. Prior to the commencement of the proceedings she prepared a comprehensive report which addressed the many issues facing the parties. I accept Ms G’s recommendations with respect to the need for supervision and further as to the appropriate time-frame for such supervision to continue.
The orders sought by the father during his closing submissions made provision for supervised time albeit for a shorter time-frame.
I am satisfied in light of the extended interruption of the father’s time with the children, the evidence of Ms G as to the need for the children to be supported in the reintroduction of their time with the father and the observed anxieties of the mother around the reintroduction of the father’s time that it is appropriate that the supervision continue for a period of six months. I am satisfied that the gradual resumption of the father’s time in a controlled and safe setting is more likely to ensure that these matters do not return to Court.
The father also seeks time with the children on Father's Day, the children’s and his birthdays and at Christmas. I am satisfied that it is appropriate that the children have the opportunity of spending time with the father on these special days and I will make provision for such time.
Sensibly, the father has conceded that it is appropriate that he be restrained from assisting the children with toileting, showering or bathing. I intend to make an order in those terms.
As noted earlier in this judgment, the issue of Y’s name has been an ongoing issue before the Court. I am satisfied that it is appropriate and in Y’s best interests that there be no confusion around his name. Accordingly, I will make orders continuing the injunction restraining the father from using any name other than Y when addressing him.

THE ORDERS

Having regard to all of the above matters I propose to make orders as follows:-
1.That all extant parenting orders be discharged.
2.That the mother have sole parental responsibility for the children Z born … 2006 and Y born … 2008.
3.That prior to making any decision pursuant to Order 2 hereof regarding the children’s health (save in the event of a medical emergency), education, religion or living arrangements, the mother provide to the father not less than 14 days prior notice in writing of her proposed decision and not implement such decision until the expiration of 14 days to enable the father to provide to her a written statement of his view concerning the proposed decision.
4.That the children live with the mother.
5.That the children spend time and communicate with the father as follows:-
(a)    For a period of six months for up to five hours but not less than two hours on each alternate Saturday or Sunday on the following basis:-
(i)Such time to be supervised by an employee of a contact centre at such times as nominated by the said contact centre or in the supervision of a professional supervisor as employed by the father at such times as agreed with the professional supervisor;
(ii)The costs of the contact centre (if any) or of the professional supervisor to be paid by the father;
(iii)In the event that time with the father at the father’s discretion is to occur at a contact centre, then each of the mother and the father make application to and complete any intake session as required by the said contact centre if such procedure has not already been undertaken;
(b)    Upon the completion of the six months of supervised time provided in Order 5(a) hereof, for a period of three months each alternate Saturday from 10.00 am until 3.00 pm;
(c)    At the expiration of the period of three months provided in Order 5(b) hereof, each alternate Saturday from 10.00am until 5.00pm; and
(d)    Upon the father commencing to spend time with the children in accordance with paragraph 5(b) hereof, he spend time with the children on the following occasions:
(i)Commencing Term 2, 2015 each school term holiday for a period of three consecutive days from 10.00 am until 5.00 pm each day at times to be agreed, and failing agreement commencing on the first Saturday after the commencement of the said holiday period;
(ii)During long summer holiday periods for a period of three consecutive days in each of the first, second and third weeks of the said holiday period from 10.00 am until 5.00 pm each day on days as agreed and failing agreement commencing on the Monday of each week;
(iii)On Christmas Day from 12.00 noon to 5.00 pm in 2015 and each alternate year thereafter;
(iv)On Christmas Day from 3.00 pm to 8.00 pm commencing 2016 and each alternate year thereafter;
(v)On Father's Day from 10.00 am to 5.00 pm;
(vi)By telephone on one day per week at times to be agreed and failing agreement on Wednesday from 7.00 pm to 7.15 pm, the mother to arrange and facilitate the children to telephone the father on a landline number provided by the father to the mother; and
(vii)On the father’s birthday and the children’s birthdays for a period of two hours at times to be agreed and failing agreement from 4.00 pm to 6.00 pm;
(e)    The father’s time with the children be suspended on Mother's Day and the mother’s birthday; and
(f)     As otherwise agreed between the parties in writing.
6.That all changeovers which are not subject to the necessity of supervision pursuant to these orders shall occur at the boundary of the mother’s residence at B Street, Suburb C.
7.That the mother and the father each keep the other informed as to the their current residential address, telephone numbers (including mobile telephone and mobiles) and their current email addresses.
8.That the mother and the father each notify the other without unreasonable delay in relation to any serious illness or injury suffered by either of the children requiring medical or hospital attention during their period of care, including the name of any treating medical practitioner or allied health professional.
9.That the father be at liberty to obtain from the children’s school information and photographs at his cost, if any, concerning the children’s social and academic progress which the school provides for release to parents.
10.That any passports held by the Court concerning the children be released into the possession of the mother.
11.That the father be and is hereby restrained from:-
(a)    Bathing or showering the children;
(b)    Assisting the children in going to the toilet
during any period when the children are in his care AND THE COURT NOTES that the father agrees to this order with a denial as to the necessity, but in order to offer the children and the mother some comfort.
12.That the father be and is hereby restrained by himself his servants or agents from referring to the child Y by any other name.
13.That the mother and the father each be and are hereby restrained by themselves, their servants or agents from:-
(a)    Denigrating the other to or within the hearing of the children or either of them; and
(b)    Discussing these proceedings in the presence of or hearing of the children or either of them;
14.That the appointment of the Independent Children’s Lawyer be discharged as and from the date of these orders.
15.That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.
16.That all extant applications be otherwise dismissed.
17.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 24 September 2014

Associate:

Date: 24 September 2014

[2014] FamCA 814

24 September 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Procedural Fairness

Injunction