Eicher and Roman

[2010] FamCA 777

FAMILY COURT OF AUSTRALIA

EICHER & ROMAN [2010] FamCA 777

FAMILY LAW – CHILDREN – Whether there is an unacceptable risk of sexual abuse arising from allegations against three boys – the reliability of the techniques used in interviewing the boys – where the child may have developed a false belief of being the victim of sexual abuse – what arrangements are in the child’s best interests – whether equal shared parental responsibility is in the child’s best interests

Family Law Act 1975 (Cth)

M & M (1988) FLC 91-979

Murphy & Murphy [2007] FamCA 795

APPLICANT: Mr Eicher

RESPONDENT: Ms Roman

INDEPENDENT CHILDREN'S LAWYER: Purcell Taylor

INTERVENOR: Department of Communities (Child Safety Services)

FILE NUMBER: CSC 238 of 2007

DATE DELIVERED: 7 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 27 July 2010 - 3 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson

SOLICITOR FOR THE APPLICANT: O’Reilly Stevens Bovey Lawyers

COUNSEL FOR THE RESPONDENT: Ms Benson

SOLICITOR FOR THE RESPONDENT: AMR Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mayes

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Purcell Taylor

COUNSEL FOR THE INTERVENOR: Mr Pennell

SOLICITORS FOR THE INTERVENOR: Department of Communities (Child Safety Services)

Orders

1. All previous Orders made by the Family Court of Australia and the Federal Magistrates Court of Australia be discharged.

2. The child M born … June 2003 (“the child”) live with the mother at all times other than those times he spends with his father.

3. The mother have sole parental responsibility for the child, subject to orders 4, 5, 6, 19 and 20 below.

4. Day to day decisions regarding the child are the responsibility of the parent who has care of the child at that time.

5. The mother give notice to the father in writing or by email of any major decision she intends to make about the child’s education or medical care at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father. 

6. The mother shall keep the father informed of the child’s circumstances by:

   6.1.Informing the father of any medical or health matter concerning the child;

   6.2.Notifying the father of the name of the child’s school, medical practitioner and dentist if and when they change;

   6.3.Authorising the child’s school to provide the father with:

   6.3.1.A copy of the child’s school reports and any other written material relating to the child’s progress or participation at school;

   6.3.2.Order forms for a school photo of the child each year.

7. Both parties to inform the other party of any change to their current residential address or contact telephone number within 48 hours of any such change.

8. The child spend time with the father increasing on a graduated basis as follows:

   8.1.On the weekend immediately after these Orders are made from 9am to 5pm on Saturday;

   8.2.On the next alternative weekend from after school Friday (or 3pm if not during school term) until 5pm on Saturday;

   8.3.On the next alternative week-end from after school Friday (or 3pm if not during school term) until 5pm Sunday;

   8.4.On the next alternative week-end from after school Friday (or 3pm if not during school term) until Monday morning before school (or 9am if not during school term).

9. Thereafter, the child is to spend time with the father as follows:

   9.1.During school term, every alternate weekend from after school Friday until Tuesday morning before school; and

   9.2.Half the school holidays with the father to have the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years.

   9.3.For the purpose of order 9.2, the school holidays will commence on the cessation of the child’s attendance at school at the end of school term and shall conclude at the commencement of the child’s attendance at school at the beginning of the next school term;

   9.4.Any other time the parties mutually agree in writing.

10. Notwithstanding orders 8 and 9 above, the child is to spend time with each parent on special days as follows:

    10.1.From 12pm Christmas Eve to 12pm Christmas Day with the mother in odd numbered years and with the father in even numbered years

    10.2.On the child’s birthday, with the parent the child is not living with from 9am to 1pm (if on a weekend) or after school to 6pm (if on a school day);

    10.3.With the mother on the mother’s birthday from 9am to 1pm (if on a weekend) or after school to 5pm (if on a school day);

    10.4.With the father on the father’s birthday from 9am to 1pm (if on a weekend) or after school to 5pm (if on a school day);

    10.5.With the mother on the Mother’s Day from 9am to 5pm;

    10.6.With the father on the Father’s Day from 9am to 5pm.

11. Unless otherwise agreed in writing between the parties, handovers for the child are to occur at the child’s school during school term and at McDonald’s at E during school holidays.

12. If either parent wishes to take the child out of the Cairns/Tableland area for a period longer than forty-eight hours, that parent is to notify the other parent in writing and provide a copy of the itinerary and contact details while the child is away, at least forty-eight hours prior to the trip.

13. The mother to hold the child’s passport.

14. Either parent is at liberty to travel with the child overseas during their time with the child on conditions that:

    14.1.Any travel does not interfere with the other parent’s time with the child;

    14.2.The travelling parent provides to the other parent, notice of their intended travel at least 28 days prior to such travel;

    14.3.The travelling parent provides to the other a complete itinerary of the child’s travel plans at least 14 days prior to the travel; and

    14.4.The travelling parent arranges for the other parent to have reasonable email and / or telephone communication with the child during such travel.

15. The child to have telephone communication with the parent with whom they are not living between 5:00pm and 6:00pm on Monday night. The parent with whom the child is living is to facilitate the child ringing the other parent on this occasion and at any other time requested by the child

16. Neither parent denigrate or allow any other person to denigrate, the other parent or members of the other parent’s family in front of the child.

17. The mother to provide to the father all documents that she requires him to sign for the purposes of establishing to the Child Support Agency that he is the father of the child, and the father to promptly sign and return such documentation to the mother for lodgement at her convenience and expense.

18. The father to provide to the mother, all documents required to amend the child’s Birth Certificate to register the father’s name as the child’s father and the mother to promptly sign such documentation and return it to the father for lodgement at his convenience and expense.

19. Both the mother and father do all other things and sign all necessary documents to change the child’s name to M EICHER ROMAN.

20. The mother is not permitted to relocate any distance from the father’s current residence so that the orders that the child spend time with his father become impracticable unless the father gives his written consent or there is a further court order.

21. As soon as is practical after the date of these orders, the Director of Client Dispute Services is to arrange for a family consultant to explain to the child his living arrangements, and explain to M and T the effect of my findings consistent with paragraph 249 and the mother ensure that M and T attend any interview that is scheduled for that purpose.

22. The order appointing the Independent Children’s Lawyer be discharged.

23. 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 under the pseudonym Eicher & Roman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 238 of 2007

MR EICHER

Applicant

And

MS ROMAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The child M was born in June 2003 and is currently 7 years of age. He is living with his mother and has two hours supervised time each week with his father, as a result of orders made under State welfare law.

2. The major issue in this case is whether there is an unacceptable risk of abuse for the child if he spends time with his father.

3. Statements have been made by M, his elder half-brother T and the father’s fiancé’s nephew L, which might indicate that each had been sexually abused by the father. All allegations were investigated by the Department of Communities (“the Department”). The allegation in relation to T was found to be substantiated by the Department but with no substantiated risk to M. The disclosures by M and L were substantiated by the Department concluding risk of emotional harm and risk of physical harm caused by sexual abuse. The police concluded their investigations into each child’s disclosures without charging the father.

4. The Department of Communities has intervened in the case and is a party to these proceedings. They obtained an interim Child Protection Order on 29 June 2009, granting custody to the Chief Executive. This order was extended and continued until 12 August 2010. At the commencement of this hearing, the Department’s position was that the father’s time with the child should be supervised but it changed that position after all the evidence had been heard.

5. Whilst the mother is not convinced the father is a paedophile, she maintains concerned that there is a possibility that he might be.

6. The father maintains his innocence and claims that officers of the Department had closed their minds to evidence that proves he is not guilty. Likewise, the paternal grandparents, the father’s fiancé, and L’s mother complain about their dealings with the Department.  I do not conclude that the Department has acted inappropriately.

7. The Independent Children’s Lawyer submitted that the child M is not at a risk of harm from sexual abuse.

APPLICATIONS

Father

1. Originally, the father sought sole parental responsibility of M and that the child live with the father. The proposed orders provided for the child to have time with the mother on each alternate weekend including overnights, Wednesday overnight in the other alternate weeks, and half of the school holidays, with allowances for special days. The father also sought orders that DNA testing be undertaken to determine his parentage of the child, so that his name may be placed on the birth certificate and to register the Child’s surname as Roman-Eicher.

2. The orders for DNA testing were not pursued when all parties accepted testing was unnecessary.  All parties agreed that the applicant was the child’s father and I so find.  That should be sufficient to enable his name to be recorded on the birth certificate.

3. During the father’s cross-examination it became clear that the father was under the impression that the application which he had filed sought orders that the mother’s time with the child be supervised. After an adjournment to discuss this with his lawyer, he confirmed that consistent with one of the alternate positions taken by the family consultant, if the Court were to find the mother’s conduct is ‘pathological and obsessive’ then the father would seek supervised time, but not otherwise.

4. After all the evidence was heard and tested, the father, Independent Children's Lawyer and the Department submitted that I should find there was no unacceptable risk if the child was in his father’s care. The Independent Children's Lawyer submitted that orders should be made so that the child would ordinarily live with his mother and he should spend five nights per fortnight with his father (Wednesday after school until Monday morning each alternate week). In final submissions Counsel for the father indicated that having heard all the evidence he wished to simply support the application made by the Independent Children's Lawyer. The father’s orders sought are therefore in the following terms:

   1.   That all previous Orders made by the Family Court of Australia and the Federal Magistrates Court of Australia be discharged.

   2.   That the child [M] born […] June 2003 live with the mother.

   3.   That the Mother and Father have equal shared parental responsibility for the major long term decisions that affect the child.

   4.   That without limiting the parental responsibility of either parent pursuant to paragraph 2 of this Order each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issue affecting the child.  For the purpose of these orders, a “significant parenting issue” is:-

   a.    Any medical or health matter concerning the child;

   b.    Any medical or health matter affecting either parent which may affect the ability of that parent to care for the child;

   c.    Matters relating to the education of the child, including but not limited to, the choice of school and curriculum;

   d.    Disciplinary matters other than of a trivial nature;

   e.    Matters concerning the social development and sporting activities of the child;

   f.     Matters concerning the religion or faith of the child;

   g.    Any intended change in the surname by which the child is commonly known, except as provided for in these Orders;

   h. Generally any matter regarding the child in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part 7 of the Family Law Act 1975.

   5.   The day to day decisions regarding the child are the responsibility of the parent who has care of the child at that time.

   6.   That the father shall spend time with and communicate with the child as agreed and failing agreement at the following times and upon the following terms:

   a.       On the week-end immediately after these Orders are made from after school on the Friday until 5pm on the Sunday;

   b.      On the next alternative week-end from after school Friday until Monday morning of the following week;

   c.      On the next alternative week-end from after school Thursday until Monday morning of the following week;

   d.      On the next alternative week-end from after school Wednesday until Monday morning of the following week;

   e.      Thereafter from after school every second Wednesday until Monday morning of the following week.  In the event the Monday is a public holiday or pupil free day, the father is to return the child on the Tuesday morning;

   f.       Half the school holidays with the father to have the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years;

   7.   The mother to spend time with the child in the second half of the school holidays in odd numbered years and the first half of the school holidays in even numbered years.

   8.   The first half of the school holidays to commence from 6pm on the last day of the school term and concluding at 6pm on the Saturday of the middle week of the school holiday period.  The second half of the school holidays to commence from 6pm on the Saturday in the middle week of the school holiday period until 8pm on the night prior to school recommencing.  For the Easter school holidays, the first half to commence from 6pm on Easter Thursday or the last day of the school term and concluding at 6pm on the middle day of the school holidays with the second half commencing at 6pm on the middle day of the school holidays until 8pm on the night prior to school recommencing.

   9.   The child to spend 9:00am to 5:00pm on Father’s Day with the father and 9:00am to 5:00pm on Mother’s Day with the mother.

   10. The child to spend four hours on the child’s birthday with the parent with whom the child is not living on his birthday at a time agreed between the parties.  If the child’s birthday falls on a school day, the child to spend two hours with the other parent at a time agreed between the parties.

   11. The child to spend 9:00am to 1:00pm with the father on the father’s birthday.  If the father’s birthday falls on a school day, the child to spend two hours with the father on the father’s birthday at a time to be agreed between the parties.

   12. The child to spend 9:00am to 1:00pm with the mother on the mother’s birthday.  If the mother’s birthday falls on a school day, the child to spend two hours with the mother on the mother’s birthday at a time to be agreed between the parties.

   13. If the parties are in the same location at Christmas, the child to spend time at Christmas with the other parent as follows:

   a.       In odd numbered years, with the father from 10:00am Christmas Eve until 12:00 noon Christmas Day;

   b.      In even numbered years, with the mother from 10:00am Christmas Eve until 12:00 noon Christmas Day.

   14. The child to have telephone communication with the father between 5:00pm and 6:00pm on the Sunday night the father is not spending time with the child with the mother to arrange for the child to ring the father on the father’s home telephone number.

   15. The child to have telephone communication with the mother on the Wednesday afternoon between 5:00pm and 6:00pm during the father’s holiday time with the child with the father to arrange for the child to ring the mother on the mother’s home telephone number.

   16. The parent with whom the child is living is to facilitate the child ringing the other parent at any time requested by the child.

   17. If either parent wishes to take the child out of the Cairns area for a period longer than forty-eight hours, that parent is to notify the other parent in writing and provide a copy of the itinerary and contact details while the child is away, at least forty-eight hours prior to the trip.

   18. Unless otherwise agreed in writing between the parties, handovers for the child are to occur at the child’s school and during school holidays, handovers are to take place at McDonald’s [E]. 

   19. Both parties to inform the other party of any change to their current residential address or contact telephone number within 48 hours of any such change.

   20. That neither parent denigrate the other parent or members of the other parent’s family in front of the child and ensure that no other person denigrates the other parent or members of the other parent’s family in front of the child.

   21. The mother to provide to the father all documents required for determining for Child Support purposes that he is the father of the child, and the father to promptly sign and return such documentation to the mother for lodgement at her convenience and expense.

   22. The father to provide to the mother, all documents required to amend the child’s Birth Certificate to register the father’s name as the child’s father and to note the child’s change of name and the mother to promptly sign such documentation and return it to the father for lodgement at his convenience and expense.

   23. The mother to hold the child’s passport.

   24. Either parent is at liberty to travel with the child overseas during their time with the child on condition that:

   a.       Any travel does not interfere with the other parent’s time with the child;

   b.      The travelling parent provides to the other parent, notice of their intended travel at least 28 days prior to such travel;

   c.      The travelling parent provides to the other a complete itinerary of the child’s travel plans at least 14 days prior to the travel; and

   d.      The travelling parent arranges for the other parent to have reasonable email and / or telephone communication with the child during such travel.

   25. That the Independent Children’s Lawyer be discharged.

Mother

1. At the beginning of the hearing, the respondent mother sought sole parental responsibility and that the child live with her. She sought that all time the father spend with the child be supervised.

2. On the second last day, the mother tendered a minute of orders sought (Exhibit G) suggesting that I should find that the father posed an unacceptable risk to M. In the alternative, the mother also set out orders that she sought the court to make if the court was of the view that there was no unacceptable risk of the child being in his father’s care.  Those orders differentiated between “high”, “medium” and “low” unacceptable risk. She said that although the general test was an “unacceptable risk of harm”, once this is established the degree of risk should be assessed and this should dictate the approach taken to the basis upon which the child spends time with the father. Counsel for the mother indicated she relied upon an approach taken by Carmody J in Murphy & Murphy [2007] FamCA 795 which stressed that orders should be proportional to the level of risk that abuse may reoccur, and the level of harm that may result.

3. Given my findings on the facts in this case, it is not necessary to discuss His Honour’s views in this judgment. I set out below the principles that apply in cases where sexual abuse allegations are made.

4. Towards the end of the hearing the mother indicated that she wished to amend her application. In the event that the court found there was no unacceptable risk for the child to be in his father’s care, the mother sought an order that the child spend four nights a fortnight during school term (Friday after school until Tuesday morning at school each alternate week). The amended application of the mother was in the following terms:

   1.The child live with the mother

   2.The mother have sole parental responsibility

   3.The mother to:

   a.     Inform the father in writing or email of any medical diagnosis or treatment received by the child

   b.    Inform the father, in writing, or email, of any major decision she intends to make about the child’s schooling or medical care prior to making such decisions;

   c.    Consider any view expressed by the father in writing or email about the issue before making the decision;

   d.    Notify the father the name of the child’s school, medical practitioner and dentist as it may be form time to time

   e.    Authorise the child’s school to provide the father with:

   i.a copy of the child’s school, reports and any other written material relating to the child’s progress in, or participation at, school

   ii.order forms for a school photo of the child each year

   f.     Authorise the child’s medical practitioner and dentist to provide the father with any information regarding treatment or diagnoses of the child as may be requested by the father from time to time

   4.The child spend time with the father as follows:

   a.     from after school Friday until before school the following Tuesday; and

   b.    ½ of each school holiday period being not more than week about in the first year; and

   c.    each alternate Christmas from 12 noon Christmas eve until 12 noon Christmas day and in each other year from 12 noon Christmas day until 12 noon boxing day

   d.    on condition that:

   i.another adult, agreed to in writing, is present and supervises the time at all times and;

   ii.all overnight time occurs in the home of the paternal grandparents or such other place as is agreed to in writing;

   5.Changeovers to occur, where possible, at school, and otherwise, at MacDonald’s [E], or such other public place as is agreed to in writing between the parents

   6.For the purpose of supervision under Orders 3(b),(c) [sic], the supervisors to be:

   a.     The fathers partner, [Ms SK]

   b.    The fathers [sic] parents, or either of them

   c.    Such other person as is agreed to in writing from time to time

   7.The Father is restrained from:

   a.     Showering/dressing with or in the presence of the child

   b.    Being present when the child is showering/dressing

   c.    Denigrating the mother

   d.    Saying anything to the child to suggest the mother is responsible for the limited time the child spends with the paternal family or the father

   e.    Saying anything to suggest to the child that the allegations of sexual abuse previously raised by this child or any other child about the father have been false or mistaken

   f.     Saying anything to suggest to the child that any other person has previously harmed the child; 

   In the presence or hearing of the child;

   g.    Permitting the child to be present when any other person is doing so (including his partner and the paternal grandparents)

   8.The child to be known as [M EICHER ROMAN]

   9.The mother to provide to the father all documents required for determining for Child Support purposes, that he is the father of the child, and the father to promptly sign and return such documentation to the mother for lodgement at her convenience and expense.

   10.The father to provide to the mother, all documents required to amend the child’s Birth Certificate to register the father’s name as the child’s father and to note the child’s change of name and the mother to promptly sign such documentation and return it to the father for lodgement at his convenience and expense.

   11.The mother to hold the child’s passport and be at liberty to obtain an updated passport for the child with the child’s amended name

   12.Either parent is at liberty to travel with the child overseas (subject to any restrictions on the time the father spends with the child) on condition that:

   a.     Any travel does not interfere with the other parent’s time (subject to order 4 b (vi)) [sic]

   b.    The travelling parent provides to the other, notice of their intended travel at least 28 days prior to such travel; and

   c.    The travelling parent provides to the other a complete itinerary of the child’s travel plans at least 14 days prior to the travel; and

   d.    The travelling parent arranges for the other parent to have reasonable email and/or telephone communication with the child during such travel

The Department

1. The Department’s position at the commencement of the hearing was that the child should live with the mother and have supervised time with the father.  Prior to cross examination of the father, Counsel for the Department announced that there was no longer a concern if the child was in the father’s care without supervision. After further consultation with his instructors, Counsel for the Department withdrew that comment and maintained the original position that the father’s time should be supervised.

2. In final submissions the Department indicated that they did not wish to make any submissions in respect of the issue of parental responsibility. Their primary submission was that having heard all the evidence, the Department sought an order that the child live with his mother. The Department did not want to be heard on the amount of time that the father was to spend with the child, but indicated that having heard all the evidence, they no longer sought an order for supervision.

3. The Department has indicated it will abide by any order made at the end of this hearing and will on 12 August 2010 discontinue any proceedings under child welfare laws and will not reinstitute them unless new information emerges. 

Independent Children’s Lawyer

1. At the commencement of final submissions the Independent Children's Lawyer made an application in terms adopted by the father. The terms of those orders are set out above. 

DOCUMENTS RELIED UPON

1. The Applicant Father relies on the following documents:

   20.1.Amended Initiating Application filed 8 March 2010.

   20.2.Father’s affidavit filed 11 November 2009.

   20.3.Father’s affidavit filed 30 April 2010.

   20.4.Affidavit of Ms SK filed 30 April 2010.

   20.5.Affidavit of the paternal grandfather filed 30 April 2010.

   20.6.Affidavit of the paternal grandfather filed in Court 27 July 2010.

   20.7.Affidavit of the paternal step-grandmother filed 30 April 2010.

   20.8.Affidavit of the paternal step-grandmother filed in Court 27 July 2010.

   20.9.Affidavit of Ms RK filed 30 April 2010.

2. The Respondent Mother relies on the following documents:

   21.1.Response to Initiating Application filed 21 January 2010.

   21.2.Mother’s affidavit filed 12 November 2009.

   21.3.Mother’s Affidavit filed 21 January 2010.

   21.4.Mother’s Affidavit filed in Court 29 July 2010.

   21.5.Affidavit of Ms TK filed 19 July 2010.

3. The Department of Communities relies on the following documents:

   22.1.Affidavit of Ms B filed 28 May 2010.

   22.2.Affidavit of Ms G filed 31 May 2010.

   22.3.Affidavit of Ms G filed in Court on 2 August 2010.

   22.4.Affidavit of Ms A filed 28 May 2010.

4. The following independent evidence was also relied upon:

   23.1.Family Report of Ms F dated 30 April 2010.

   23.2.Updated Family Report of Ms F dated 2 August 2010.

   23.3.Family Reports of Ms C dated 22 June 2007 and 7 September 2007.

   23.4.Reasons for Judgment – FM Coates – dated 26 June 2007.

   23.5.Transcript of proceedings dated 26 June 2007.

   23.6.Consent Orders made in the Federal Magistrate’s Court dated 2 October 2007.

   23.7.Transcript of father’s evidence of 28 July 2010.

CREDIBILITY

Father

1. In relation to the incident in the shower with T in 2002, the father gave inconsistent evidence to the police and to the Court. This is dealt with further below. In summary, I find that in his police interviews the father did not accurately tell the police:

   24.1.The true version of what happened in the shower in 2002; and

   24.2.The extent to which he touched M’s penis during periods when attending to the child’s ordinary hygiene.

2. The father was fairly frank about the level of family violence he had perpetrated in his relationship with the mother. The father (supported by counsel for the Independent Children's Lawyer), suggested that some of that behaviour (particularly towards the end) was fuelled by the mother’s reluctance to make the child available to him. However, as discussed later, I find that the mother was significantly affected by the level of the father’s aggression and violence during the relationship between the parties and around and after separation.

3. The father answered questions both in the police interviews (which were recorded on video tape) and in the witness box in a reasonably forthright way. As noted above however, there were pivotal parts of statements that he had previously made which he agreed at the end of his cross examination were not true. That casts considerable doubt about the reliance that I can place upon the father’s evidence on any controversial fact.

Mother

1. The mother also made a number of conflicting statements in relation to the 2002 shower incident with T, giving three accounts of what time of the day this may have occurred. This is dealt with in more detail later.

2. The mother also gave three accounts of the time between the shower incident and when T’s “disclosure” was made about the noodle in his mouth. This is also dealt with in more detail later in the judgment.

3. The mother has not been forthright in the past about Mr Z’s violence. The mother had told the Department that T exaggerated statements about the discipline he received at home. Although the mother originally claimed in the Federal Magistrates Court proceedings there was only one occasion of domestic violence where a threat was made, it was discovered through cross-examination that there were multiple incidences of threats and violence to both the mother and the boys. The mother told the family consultant (for the first report) that Mr Z exhibited no violence. She also denied that Mr Z had squeezed T’s testicles, and then later admitted that he had, but said that it was in retaliation for T squeezing Mr Z’s testicles during some play fighting and as a way of demonstrating to T how painful it was. It does the mother no credit that she denied anything about Mr Z squeezing T’s testicles in the Federal Magistrates Court proceedings.

4. On 8 April 2008 the mother had told Mr B from the Department that she did not discuss the children with Ms TK and that Ms TK would not be aware of the allegations against the father. From the internet conversations annexed to the father’s affidavit, this was clearly not true. The mother said she called Ms B back to tell her the truth. She said she was nervous and this was an oversight. The mother acknowledged in the witness box that Ms TK was aware of the 2007 court proceedings (Ms TK was subpoenaed in 2007) and the sexual abuse allegations, and that the mother was aware of Ms TK’s sour relationship with the father. It is disconcerting that the mother said what she said to the Departmental officer even though she corrected it shortly after. It fuelled, in the minds of the father and the paternal grandfather the suspicion that the mother and Ms TK colluded in relation to the statements made by M.

5. As has been demonstrated above, like the father, the mother has not been fully frank in relation to some of the evidence that she has given in the past. This prevents me from accepting her evidence unconditionally about any controversial matter.

Ms SK (the father’s partner)

1. I was not impressed with the way Ms SK gave evidence when asked about the frequency and intensity of arguments between herself and the father.  She took a long time when answering questions about the father’s aggression.  SK also took a very long time to respond when asked “What is your opinion about [the mother] as a mother?”

2. There were a number of minor inconsistencies in her evidence. For example, in her current affidavit, SK recalls M saying to the father “Mummy told me you done naughty things to me”. SK says this occurred in about August 2008. This was before the child protection proceedings began, yet was not included in SK’s affidavit for those proceedings.

3. I accept most of what Ms SK says, although the way she answered questions gives me some pause to be concerned about the evidence she gave regarding the father’s aggression and Ms SK’s attitude to the mother’s parenting capacity.

The paternal grandfather

1. The paternal grandfather was forceful in the witness box. He was clearly very upset with the mother and the Department and angry about what had happened over the past two years and four months.

2. I note later in my reasons the grandfather’s claim that M admitted lying about the sexual abuse allegations. He did not mention these comments to the father’s lawyer. I find that given the focus of the hearing is on sexual abuse, it is unlikely the paternal grandfather would not have brought this to the lawyers’ attention. Moreover, the child’s initial comment was supposedly made to the paternal step-grandmother, who did not mention this incident in her oral or written evidence, nor was she cross-examined about it. The paternal grandfather is heavily invested in ensuring allegations against his son are exposed as being false.  I find it is more likely that the paternal grandfather created this story.

3. The paternal grandfather stated that he had no involvement in the preparation of SK’s affidavits. This is in direct contradiction of SK’s evidence that “[the paternal grandfather] and [paternal step-grandmother] also helped me with my affidavit”. I accept SK’s version of events.

The paternal step-grandmother

1. Overall, I accepted the paternal step-grandmother as a credible witness. The paternal step-grandmother seemed less invested in the proceedings than her husband. I accept that the maternal step-grandmother expressed her genuine and frank view about the mother’s parenting capacity, however the negativity of some of the statements she made overstates in my view any difficulties that the mother displays.

2. Whilst the paternal step-grandmother was more objective than the paternal grandfather, there was some aspects of her son’s history with the mother that the paternal step-grandmother did not seem to appreciate in full, notwithstanding she said she had read most of the written material that had been prepared in respect of this matter.

Ms RK

1. Ms RK gave inconsistent evidence about the circumstance in which her son, L, said he lied to the police. This is discussed later in my Reasons. I find the version she finally settled upon, more closely represents the truth.

2. Ms RK said she didn’t want L going to the father’s house because TK told her that L would be taken away from RK if she let him near the father. RK was criticised for not including evidence of this information in any affidavit or statutory declaration. I note however that some comment was made in her material that TK said she had to go to the police about the disclosure or they would take L away.

3. Notwithstanding the inconsistencies in her evidence about L’s statement that he had lied to the police, I accept RK’s evidence overall.

Ms TK

1. The father commenced his case on the basis that TK had colluded with the mother to coach L in making the statements that he did. It seemed that initially one of the bases upon which the father presented that case was that Ms TK told the authorities a different version to the version she had been told by her sister RK about her son’s disclosure. It transpired in the re-examination of RK that what TK had told the authorities was in fact information that RK had provided TK.

2. Ms TK made a threat on the MSN site that the father ‘is going down big time’. TK said this was in relation to the father’s claim to recover a debt. Ms TK says that ‘I have a few more surprises for you. I haven’t finished yet’ refers to filing for bankruptcy, as she had sent away for the bankruptcy kit that day. Although this was the same day L was interviewed, TK said she wasn’t aware that L was going to the police that day. A letter from the Insolvency and Trustee Service Australia, sending the forms “requested on the 22^nd April 2008”. Ms TK said she had made more than one call to the Service. On balance I do not accept Ms TK’s explanation and find the references posted by her on the MSN site do relate to her intention to report what L had said to RK to the child welfare authorities.

3. At the end of the day however, there is no controversial evidence that TK gives that goes to any major issue that I have to consider.

Ms B, Ms A and Ms F

1. I accept that all of the professionals in this case provided the court with their genuine views and opinions.

Conclusion about credit

1. The main controversies in this case arise from differences in evidence given between the mother and father.  As I have already indicated, I am unable to uncritically accept evidence of either of them about any controversial matter and I will attempt to resolve contested issues of fact either by objective evidence or accepting a version which is more inherently likely.

CHRONOLOGY

1. The father was born in 1980. He is currently 29 years of age.

2. The mother was born in New Zealand in 1981. She is currently 29 years of age.

3. The mother moved to Australia in 1999.

4. The mother gave birth to her first child, T in January 2000. He is currently aged 10. His father is Mr W, with whom the mother had a relationship from July 1999 to 2001.

5. The mother and father commenced a relationship in July 2001. They never cohabited on a permanent basis, but the father regularly stayed at the mother’s home.

6. In January 2002 the mother responded to T’s yelling and/or screaming and found him in the bathroom with the father who had an erection. For over eight years (until the second day of this trial), the father denied this allegation.

7. The mother applied for a DV Protection Order in 25 October 2002 in response to the father’s violence. A final order was made on 2 January 2003.

8. The mother asserts that she and the father ceased to spend regular time together in November 2002 while the father asserts that occurred in July 2004.

1. There was a violent incident on 19 December 2002 where the father attended upon the mother’s home and smashed a window in anger. The police were called and the police made an application for a Domestic Violence Protection Order.

2. On 23 December 2002 there was another violent incident where the father turned up to the mother’s house. He caused wounds with a knife to the hand of Mr W who was at the mother’s house. Police were called and Mr W later received stitches to the wound.

3. M, who is the child of the relationship and the subject of the applications before me, was born in June 2003. He is currently 7 years of age.

4. The mother applied for the DV Protection Order to be amended to include a ‘no contact’ clause and for the father not to come within 50 metres. This was granted on 19 June 2003.

5. Notwithstanding inconsistencies in the mother’s evidence about when it happened, I find that in January 2004 T made a disclosure that “[the father] put his [or ‘the’] noodle in my mouth”. The mother recorded T saying this over and over.

6. L was born in February 2004. He is the nephew of the father’s fiancé.

7. At 10.00am on 5 February 2004 the mother reported the 2002 shower incident and T’s recent statements at local Police Station.  The allegation by the mother was not pursued by the police, but was assessed by the Department as ‘substantiated’. The Department further assessed that both T and M were not found to be at risk due to the mother’s protective capabilities.

8. On 15 December 2004 the father was found to have breached the DVPO on four occasions between 5 August 2004 and 24 October 2004. He was given a 2 year suspended sentence. There was one particularly frightening incident where the mother locked herself in a room with the two children and attempted to telephone the police.  The father smashed the door in and prevented the mother making contact with the police.

9. In December 2004 an agreement was reached for the father to spend time with M at the Day Care Centre three times a week. This occurred from January 2005 until April 2005, at which time the mother agreed to allow the child to spend overnight time with the father.

10. The mother commenced a relationship with Mr Z in 2005 and they married in October 2005. She separated from him one month later and obtained a DV order against him. The mother was pregnant to her husband at the time of separation.

11. The father commenced a relationship with Ms SK in September 2005 and commenced living with her in May 2006. They are engaged to be married.

12. The mother gave birth to her third child, J, in July 2006. He is currently aged 4 years. He regularly spends time with his father, Mr Z.

13. On 24 January 2006 the father made a complaint to the Department of Child Safety after M complained that Mr Z hit him with a knife on the elbow.

14. On 21 February 2006 T’s teacher made a complaint to the Department about the father’s alleged sexual abuse of T in 2002 after the mother mentioned the 2002 shower incident and T’s statements in January 2004, during an interview between the teacher and the mother about T’s disturbed behaviour.

15. On 14 September 2006 the mother and father agreed that M live with the father each alternate weekend, and one week night in the off-week.

16. On 28 September 2006 a notification was made to the Department regarding suspected sexual and physical abuse by Mr Z against T and physical abuse against M. These allegations were found to be unsubstantiated by the Department.

17. In March 2007 the mother informed the father’s partner and her own lawyer that she intended to move to New Zealand with the child to prevent contact between the father and child until the matter was settled. The father subsequently filed an application for parenting orders on 12 March 2007.

18. On 1 May 2007 the father loaned money to his fiancé’s brother AK and sister-in-law TK. This was the source of an ongoing dispute between the two families, resulting in threats and then court action in late 2007 and early 2008.

19. The first family report by Ms C is dated 22 June 2007. She recommended that M live with the mother and spend significant time with the father. T’s statements were noted. Mr Z’s violence and the mother’s protection order against him was noted, but the mother said there were no ongoing problems.

20. On 26 June 2007 interim orders were made by a Federal Magistrate providing that the child should live with the father and spend weekend time with the mother. It is the father’s case that this was in response to the fears regarding Mr Z’s violence against the mother. However, in his Reasons for Judgment the learned Federal Magistrate said that the mother had not shown that she would act to protect her children, should a dangerous situation arise. I confess that I find the learned Federal Magistrate’s reasons difficult to follow, as his reference to the mother’s unwillingness to protect her children was in the context of criticising the mother not leaving the father after seeing him with T in the bathroom with an erection and suspecting inappropriate behaviour. He seemed to be saying that because the mother refused to protect T from the father’s harm, she would also not protect him from Mr Z’s harm, and he concluded M should be placed in the care of the father. Having said that, it also seems the learned Federal Magistrate was not convinced that the mother’s relationship with Mr Z was over, and seemed confident that Mr Z was violent.

21. The second family report of Ms C is dated 7 September 2007. She was critical of the mother for minimising Mr Z’s violence against herself and the children.

22. On 2 October 2007, prior to a final hearing in the Federal Magistrates Court, the parents agreed to an alternate week arrangement of shared care for M. This continued until March 2008.

23. In October 2007 Ms RK, her husband and children (including son L) moved into the home of the father and his fiancé. They left in January 2008. On a day not long before they left, L made a disclosure to his mother which indicated that L may have seen the father’s erect penis.

24. On 13 March 2008 the Department received notification from Ms TK of possible sexual abuse by the father against L (RK’s son). L was interviewed and mentioned M may have been present. The mother ceased contact between the father and child while the police undertook their investigation.

25. M was interviewed on 18 March 2008, 20 March 2008, 2 April 2008, 9 April 2008 and 14 October 2008.

26. The father resumed time with M on 25 March 2008 after the police investigation had been completed and the police had determined not to take any action against the father.  The Department had not concluded its investigation.

27. On 27 March 2008 the Department made application under the child welfare laws and the child was placed in his mother’s care by the Department under a Temporary Assessment Order pursuant to s 82(2) of the Child Protection Act 1999. He was forcibly removed from the father’s home by police and returned to his mother.

28. On 4 April 2008 the Department referred M to psychologist Ms A.

29. On 22 July 2008 Ms RK issued a Statutory Declaration stating that L had told her in June 2008 that he had lied to the police.

30. On 15 August 2008 the father indicated that he would be agreeable to a psychological assessment and possibly counselling. The father attended the assessment with Mr E on 18 November 2008 and walked out of the session after the psychologist indicated that the purpose of the referral to him for counselling was to attempt to rehabilitate the father and the starting point for that process was a need for the father to cease his denial about sexual abuse of the three boys.

31. The father and his parents requested an internal review into the Department’s handling of the matter. This was released on 18 November 2008. It highlighted policy errors but there were no ramifications and the father was dissatisfied.

32. A further interim Child Protection Order was made in the Children’s Court on 29 June 2009 granting custody to the Chief Executive. There is a current order under child welfare laws which expired 12 August 2010.

33. The parenting arrangements at the commencement of the hearing were that the child lives with his mother and sees the father each Friday afternoon for two hours. This time is supervised. The child also sees his paternal grandparents on Monday evenings unsupervised but without the father being present. An affidavit from the supervisor says there have been no concerns arising from any of the occasions M has spent time with his father.

ALLEGATIONS OF SEXUAL ABUSE

Principles in cases where sexual abuse allegations are made

1. The High Court in M & M (1988) FLC 91-979, has indicated how to approach cases involving allegations of sexual abuse. Drawing upon the words the High Court has used in that decision at pages 77,080 - 77,081 the following principles emerge:

   89.1.The allegation of sexual abuse is not the paramount issue for determination.  That is always whether making the orders sought are in the best interests of the child. 

   89.2.That said, “…the court’s findings on disputed allegations of sexual abuse will naturally have an important, perhaps a decisive, impact upon the resolution of that issue”. 

   89.3.These are not criminal proceedings, nor are parental rights being enforced.

   89.4.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.  Such a positive finding should not be made unless the court is satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362 (per Dixon J). This positive finding will be possible in some cases, and in those cases it would be most extraordinary if the finding did not have a decisive impact upon the outcome.

   89.5.In cases involving allegations of sexual abuse, the court must determine the existence and magnitude of the risk. 

   89.6.The test is best expressed by saying that a court will not make an order that a child live with, spend time with or communicate with a parent, if that order would expose the child to an unacceptable risk of sexual abuse. 

2. There were sexual abuse allegations involving the father arising out of statements made by the mother’s eldest child, T; the child of the mother and father, M; and the father’s fiancé’s nephew L. There was also an allegation made against Mr Z. The allegations against the father were the main focus of the current proceedings.

Recorded interviews of the children and the father

1. The following interviews were conducted in relation to the allegations:

Interviewee	Date	Format	Interviewer
T	Unknown	Audio	Mother
T	5 February 2004	Video	Police
T	29 May 2006	Audio	Police; Dept observing
T	29 May 2006	Video	Police; Dept observing
T	30 May 2006	Video	Police; Dept observing
Father	2 June 2006	Video	Police
L	11 March 2008	Video	Police
M	18 March 2008	Video	Police
Father	19 March 2008	Video	Police
M	20 March 2008	Audio	Police
M & L	02 April 2008	NA	Unknown
M	9 April 2008	NA	Unknown
M	14 October 2008	NA	Unknown

Alleged sexual abuse of T by the father

1. The mother claims that in January 2002 she was at the father’s studio apartment with T and the father took T to have a shower. On the mother’s evidence this could have been in the evening, the afternoon or the morning. The mother said that ten minutes after the father took T to have a shower she heard T scream. This time estimate was only volunteered by the mother in re-examination and I place no weight upon it, given the mother’s lack of memory about time on that day and inconsistencies about when T made other disclosures. She immediately went into the bathroom, where she found the father with a fully erect penis and with one hand on T’s shoulder. In her 2007 affidavit the mother said T was pointing at the father’s erection when he was screaming.  Both were now outside the shower recess. The mother said the father claimed T was “just scared of it” and the mother believed him, though was wary.

2. The father says the shower incident occurred in the morning when he was showering with T, who entered the shower after the father had been there a while. The father was experiencing a morning erection as men sometimes do (the father referred to it as “morning glory”) which may have been full or partial. The erection went down over time and when T saw the father’s penis it was under half. T looked at the father’s penis and screamed. The mother entered the bathroom and the father still had a partial erection. The father does not believe the child may have inadvertently touched his penis in this situation, despite the confined space of the shower recess.

3. I note the inconsistencies in the father’s evidence about this incident. In a police interview with the father on 2 June 2006 he said it was ‘definitely’ not true at all that he had an erection. When asked about T’s scream and the mother walking in when the father had an erection, he said “that’s not true at all”. The father initially maintained, in his oral evidence, that he did not have an erection. After some reluctance to outline his memory of the shower incident, the father admitted that he was experiencing a partial or full erection when he awoke, which went down when he was in the shower. He also admitted that T had screamed when he saw it.

4. Initially the father attempted to explain these apparent discrepancies as being due to the police officer’s questioning.  He said he had in mind the police were asserting that he had developed an erection over the boy in the shower, not woken up with one. I note however that the detective said to the father “I’m not saying directly over a child, but it could have happened while he was in the shower?” to which the father replied “No. Definitely not.” The father conceded that he had been untruthful in his responses in his 2002 police interview. He said he didn’t tell the Detective Sergeant the true facts because he was a little scared.

5. The father was involved in M’s bathing, which included cleaning the genital area. The father was interviewed by the police in 2008 and was asked about any time he touched M’s penis. Somewhat surprisingly, the father told police he had only touched M once in the general region of his genitalia and that was on one occasion when M had a sore on his penis.  When questioned about this inconsistency the father said that he thought that the question was more about fondling or abusing the child than questioning that directly related to unusual touching of the child’s penis. I do not entirely accept that explanation from the father. Again I find the father was not wanting to concede that he had ever touched M’s penis.

6. In January 2004, two years after this incident, T disclosed to the mother that the father tried to put ‘the noodle’ in his mouth while they were in the shower. The mother said ‘noodle’ was T’s word for penis. She assumed this disclosure related to the shower incident in January 2002, even though T was only just two years old at the time that incident occurred. The mother retrieved a tape recorder from her room and encouraged T to repeat what he had said.

7. I note the discrepancies in the mother’s evidence about how long after the shower incident T’s “disclosure” occurred. It is an agreed fact that the shower incident occurred in January 2002. It is the mother’s case that T made his disclosure in January 2004. However, a police document of 29 May 2006 records the mother said the disclosure occurred 6 months after the incident (which would place the disclosure in mid 2002). In the mother’s 2007 affidavit, she says the disclosure occurred a month after the shower incident (February 2002). The mother said this inconsistency is a result of ‘human error’ and that she was ‘very unprepared’ for those proceedings. After listening in court to the recording the mother made of T’s statements, the mother said that T’s pronunciation and vocabulary indicated his speech pattern at 4 years. Her inability to remember that in 2006 and 2007 casts doubt upon the reliance I can place on her memory.

8. On 5 February 2004 the mother took the tape to the police and made a report. The mother said the delay was due to her being under a lot of strain from the domestic violence, was “sick and tired” of all these issues, and needed time to “think things through”. The complaint was made to the police less than an hour after the mother appeared as a respondent for a Domestic Violence application which the father had initiated against her. The mother denies she made the complaint in retaliation. T was formally interviewed that day and made no disclosures at all.

9. A note in the police file dated 8 September 2004 says the police attempted to contact the mother to re-interview T but she did not respond. They determined there was no substance to the complaint and it was probably a result of disharmony between the parties. The mother says that she was advised by her church pastor to negotiate with the father. The Department says that because T no longer resided with the father and M had made no disclosures (a somewhat strange statement for the Department to make, given M was only a baby at the time), both boys were deemed to be not at risk of abuse.

10. In February 2006, when T was having behavioural troubles at school, the mother mentioned to a teacher that it may be associated with the shower incident and the disclosures T made (The mother now believes the behaviour could be due to T’s ADHD, the two violent relationships, and different parenting styles). The mother did not make it clear that the shower incident was two years before the disclosure and says this was simply a miscommunication. She also did not inform the school that there was any family violence in her marriage with Mr Z. 

11. The school made a report to the Department in February 2006, who followed up in May 2006. The mother, having been requested to do so by the police, took the tape to the police on 2 June 2006.  The mother claimed she had been advised the tape could not be used in evidence, and so she had taped over parts of it in her singing lessons and then deleted the part she had taped over before handing in the tape. The police noted the tape stopped and started regularly and was unreliable, providing little corroboration of alleged events. 

12. The recording of the mother and T was played in court during the cross examination of the mother. Consistent with the mother’s evidence, the initial part of the recording had been taped over.  I was unable to detect the balance of the recording as having been “stopped and started” regularly.  There were perhaps two breaks.  The mother denied stopping the tape in order to coach T as to what to say. I accept the mother’s evidence about that.

13. The tape records T telling the mother that he was in the shower and the father put ‘the noodle’ in his mouth. This assertion was repeated a number of times. One time T talked about the noodle he appeared to say ‘his noodle’ and each other time he said ‘the noodle’. Each time T talked about the ‘noodle’ he said “I have more mum” and the mother responded “what do you want to tell me?” It was suggested that the mother was encouraging him to repeat his story but I think the better view is the mother was just trying to see if there was anything “more”. T was also heard to say that the father would go to jail, in the context of the father punching through a door, and also in the context of the noodle. The mother said the police were involved in their lives due to domestic violence, and T was aware that the consequences of domestic violence were police intervention. The only leading question posed by the mother was whether T had said ‘no’ to the father. T said he hadn’t and then changed his mind and said that he had. I note that T did not sound disturbed or scared, but rather playful and enjoying the attention. The mother acknowledged he was aware of the tape and was enjoying himself. When the mother said it was time to go to bed, T responded that he had “lots and lots” more. I gained the impression that T knew it was time to sleep and his repetition was a device used by him to delay bedtime. Although the mother said she was horrified when T made the disclosures, she was heard to giggle a number of times on the recording. The mother later said she was ‘calm’ at the time.

1. T was interviewed at school and at the Police station on 29 May 2006. It was recorded that T made “partial admissions about being in the shower” with the father. A Departmental Review document recorded on 20 June 2006 that ‘[T] could articulate the incident in the shower in which he described [the father] masturbating in front of [T]’. The statement in the note is problematic. The video of the interview with T on 29 May 2006 does not show T demonstrating masturbation. T was talking about how his father held his own penis, saying that the father “like pulled it up”.  When saying this, T made a gesture with his hands.  While T’s hand did move, it was not a masturbation action and T’s description was that “he squashed it”. I note that T said the father was holding it still and nothing came out of it.

2. T said that he didn’t touch the father’s penis, but the father did, and it was “standing up”. T said a number of times that he didn’t yell or scream, but that he “just laughed”.

3. The accuracy of statements made by T on 29 May 2006 are suspect because of the way those statements were obtained. In the original taped interview at T’s school, the interviewer tried to prompt T by saying a number of times “Mummy says you told her some things” to which T would repeatedly respond “I forget” and “I don’t know anything else”. The interviewer then told T that they were worried about him and asked directly “Did you see [the father] in the shower?” At the second interview that day, T was again pushed to describe the shower incident many times. Each time he gave a little information then told the interviewer “I don’t remember” and “that was ages ago”, and the interviewer would push again for more information. In doing so, a number of leading questions were posed, including “Did he ask you to touch his doodle?” and “Did he touch it himself?” I comment further on this later in my reasons.

4. The “disclosures” made by T in the follow-up interview of 30 May 2010 were that when the father’s penis was ‘up’ he wasn’t holding it with his hands but “his balls was holding it” and the father wasn’t doing anything with it. He later said the father was “squashing it” and that it was hard. T said without prompting that when the father was thinking about “rude things…his doodle comes up”. He said the father didn’t tell him that and no-one else did, but he knows it because he is smart.

5. In the interview on 30 May 2006, T was initially asked “What were we talking about yesterday?” to which he replied “When [the father] showed his wee.” It is obvious the child was aware of what the interviewer was interested in. He was getting frustrated with the questioning, and when the interviewer again stated “Mummy told us some things happened” T exclaimed “I know!” and said “I don’t know what she told you”. The interviewer told T directly that “She told us he may have touched you with his wee” to which T responded “I don’t know”. He was pushed for more information a number of times and he said, in a frustrated tone, “I already told you”.  When asked directly whether the father put his noodle in T’s mouth, T said “No. Tell mum he didn’t” and further denied that the father ever touched him with his penis. When he made the comment about ‘rude things’ causing an erection, the interviewer suggested “sex things?” before introducing a concept to T “I’m worried someone may have done sex things to you…or in front of you…like [the father].”

6. At the time, the Department considered the claim substantiated. I am unable to reach the same conclusion. Due to the father no longer living in the home with the boys however, neither boy was considered by the Department to be at risk.

L’s allegation against the father

1. L, the nephew of the father’s fiancé had made a statement that he had seen the father’s erect penis. The version given by Ms RK (L’s mother) in her written evidence is as follows:

   “13. On a date no long before we moved out of [the father] and [his fiancé’s] home, [L] had just finished showering.  I asked him something like, ‘Is your wee wee still sore?’  I asked him this question because he had complained that it was sore.  He said it was not sore anymore.  He then said words to the effect, ‘You don’t have a wee wee, do you mum?’  I answered ‘No, because I am a girl and you are a boy’.  [L] then said, ‘But it is not big and hard like uncle [the father’s], hey mum’.  I immediately told him to stop talking like he was because it was rude.

   14.  I did not think anymore of this until I spent some time with my brother [AK] and his wife, [TK], a few days later…..”

2. In re-examination by counsel for the father, RK was asked whether or not TK’s complaint to the Department contained a correct statement of what RK had told TK what L had said.  That statement was in the following terms:

   “[The father] has a long doodle and it is real hard not like mine or daddy [N’s]”.

3. RK agreed that she had used those words to relate to TK what L had said to her.  RK also confirmed that she interpreted the words L used (as set out in the previous paragraph) as meaning that L had at no stage ever seen his own father “daddy [N]” with an erect penis.

4. RK said did not wish to report the disclosure to the police until she had talked properly to L. RK’s evidence about her level of concern is difficult to follow, but I find she did not have a great amount of concern about L’s initial disclosure. RK says that TK pressured her to go to the police, on the premise that the father should not ‘get away with it’ and that the Department would take L away. RK did not call the police. TK made the complaint to the police.

5. TK had a significant falling out with the father prior to this, and she was making threats to the father’s fiancé about ‘surprises’ she had in stall for them and that the father was “going down big time” which are discussed in relation to her credit. She denies her report was in response to the falling out but said it was rather in response to her hyper-vigilance after her own children’s possible sexual abuse.

6. The father initially indicated that he thought the mother was colluding with TK to bring about L’s disclosure. There is little to support this contention, besides the mother lying to the family consultant about having spoken to TK about the case (mentioned above). There are also printouts of an internet conversation between TK and RK that shows suspect comments such as “sh*t is gonna hit…hehehe but its all good, its only you know who…”, “Hey…did my you know what call you? LOL…sneaky” and “hey…keep up the hard work!!! Should’ve told me, I could’ve helped…this Thursday 4pm I gotta go and sign my thing, do you wanna cum wit me to do your thing??” This conversation however is undated and I infer ‘my you know what’ was probably referring to lawyers, while ‘sign my thing’ refers to affidavits, and so this conversation would have occurred after the proceedings began and after L had made his disclosure. While I accept there was animosity between TK and the father, I find that there was no collusion between TK and the mother which led to TK’s complaint to the police.

7. L was interviewed by police on 11 March 2008. L made statements that the father’s doodle was big and hard and that he had “feeled it” in the shower and also when he was outside. He described it going “soft and hard, soft and hard”. L said that it was only he and the father in the shower. Later he agreed with the interviewer that M was also in the shower.

8. Again, there are difficulties in the way the interview of L was conducted. In particular, M was not mentioned by L until he was asked if any one else had touched the father’s penis, to which L responded ‘no’ and the interviewer asked “What about [M]?” It was the interviewer not L who introduced M into the conversation. L was pressed repeatedly for details and gave some unlikely responses including that the penis was blue and had ice on it and that he was playing with it for his friends, though no-one else was there. I note that L repeatedly asked “can I go out there now?” when he was pressed for more information. He showed how large the penis was with his hands, a size that appeared to be about 30cm (moving his hands from initially holding them at a small distance). On three occasions L gave an answer unrelated to the question, describing the hardness or softness of the father’s penis instead.

9. When L was interviewed by the Department on 2 April 2008 he made no further relevant statements. He did say that his mother and Aunt did not tell him what to say and indicated he knew the difference between truth and lies, and that what he told police was truth.

10. In June 2008 RK reported that L had told her that he lied to the police. L had not been interviewed by the police for any other reason, and so his recanting could only relate to his assertion that the father had sexually abused him. Initially in oral examination RK said that out of the blue, L “just came up to me and said Mum I lied, I lied to the police.” RK then admitted that L had been asking a while beforehand about going to the father’s house and that she had just said ‘no’ and didn’t mention anything about the father. This is contrary to RK’s sworn statement on 22 July 2008: that L asked to go to the father’s house; she refused because of “what you said at the police station”; following that L said he lied; and RK responded by telling him he still couldn’t go to the father’s house. RK tries to explain that there was a gap between asking to go to the father’s and saying that he lied, but that evidence doesn’t sit comfortably with RK’s evidence that she responded by saying he still couldn’t go to the father’s house. RK later agreed with the proposition that the statement about the lie was in response to RK telling L he couldn’t go to the father’s house. The circumstances in which L said he lied mean that little weight could be placed upon that statement.

M’s allegation against the father

1. As a result of L agreeing in his interview on 11 March 2008 that M was present in the shower, M was interviewed on 18 March 2008 by police. He stated that no-one had touched his private parts, and later said that ‘X’ (a girl from school) had, and denied that the father did. He then said that he saw the father’s wee in the shower and “I run away in the shower. I was running around and around.” He also said, in relation to his penis, that it looked ‘old’ and “He squeezed it” and he touched it and poked it with a brown toy stick. Curiously, M said that the father also put a big yellow and blue and black shark in his penis. Those statements about the stick and the shark seem to be fanciful. I make further comment about this below. A police report noted that he appeared to be giving the answers the officer wanted so that he could play with the toys and that his imagination took over.

2. M was asked a series of leading questions during this interview. He was told by the interviewer that L had said “some bad things about your Dad, some naughty things your Dad did” and then that “I heard that your Dad hurt you”. This was all said before M made any statements about the father. After being asked about the father’s penis M said “What are you talking about?” The interviewer then told M that L had said “Daddy touched your wee”. M was asked if the father had touched his wee and he said “Yes” with an inflection that makes the answer sound far less than certain, followed by “I don’t know what you’re talking about.” It was after this that M made the fanciful statements I refer to above.

3. Following the interview on 18 March 2008, the mother requested that M receive a medical examination. The police said there was no need, and that any penetration would not be able to be detected. The mother pursued this regardless, saying that “I am the mother. I deserve to have peace of mind.” The examination was external and no abnormality was detected.

4. Following the first interview, the mother contacted police to say that M had told her that the father played ‘naughty games’ or ‘ugly games’ with him and touched his ‘wee’. A second interview was conducted with M on 20 March 2008. Although the interviewer told M on two occasions that “Mummy told me that you and [L] and [the father] play naughty games” and asked repeated questions about these “naughty” games, M made no statement confirming what the mother had said he had said to her.

5. The police told the mother on 25 March 2008 that they had concluded their investigation and would not be taking matters further.  On 27 March 2008 the mother told the Department that if M was hurt she would hold the Department accountable. The Department made an application to the Children’s Court for a temporary protection order that day.

6. The father claims M had said to him at one visit on 20 August 2008 “Mummy said I’m not going back to your house cause you done naughty things to me” and claims on another visit on 5 November 2008, M said to him “You didn’t touch me wee. Mummy told me you touched my wee.”

7. Later, on 30 March 2008 M told the church pastor that the father had ‘touched his wee’. When interviewed by the Department on 2 April 2008 (the third interview), M originally said that no-one besides X had touched his privates but later said that the father had done so but he can’t talk about it because the police told him not to. He was asked about the shower incident and said he didn’t know and was tired and was reluctant to engage in conversation. He later said that the father was bad once because he touched his wee. He said that he touched it with a stick and then later again that he touches it all day, and that it made him feel sad. The report said that the Department officer asked if M knew the difference between truth and lie and he said that he did. The tape or transcript of this interview is not in evidence and so I cannot comment on how these ‘disclosures’ were obtained.

8. M was interviewed for the fourth time on 9 April 2008 by Department staff, and he said that his mother had not told him what to say. He made disclosures that his father had touched his private parts, both the ‘wee’ and the ‘bum’. He said this occurred in the shower and in the ‘outside room’. He also said that the father had touched his ‘wee’ with a “big sharp stick/hook…about half a metre long”. The tape or transcript of this interview is also not in evidence.

9. A fifth interview was conducted by the police on 14 October 2008 after M said he was touched on the private parts by a ‘black man’ that lived in his home and was chased by him. The mother acknowledges this man could not be the father as he wasn’t living in the home and M was too young to chase when the father was present in the home. During the fifth interview he repeated that the father had touched his ‘wee’. The tape or transcript of this interview is also not in evidence.

10. At this time, M had problematic behaviour at school including being disruptive, invading the personal space of other children, swearing at and hitting other children, talking in a sexual manner, touching himself and trying to touch others in their ‘private’ areas, talking about ‘pooh’, and having trouble sleeping alone at night. He also exhibited sexualised behaviour including the simulation of a sexual act with a carrot and his mouth, and saying “show me your nuts”. The mother acknowledged that this behaviour occurred after having been interviewed a number of times. The mother also acknowledged that some of M’s behavioural issues may be related to his time spent with Mr Z. M’s psychologist noted that it is ‘not usual’ for children exposed to domestic violence to act out sexual behaviour, but rather if they have been involved in or viewed sexual behaviour.

11. As a result of the interviews with M, the Department applied for a Protection Order on the basis that:

    131.1.Both L and M made significant disclosures which provide evidence of sexual harm at the hands of the father;

    131.2.The previous sexual abuse allegations with respect to T had been substantiated by the Department; and

    131.3.The disclosures of all three boys, of approximately the same age, were similar.

12. Ms A, M’s psychologist, noted there were three occasions between 14 August 2008 and May 2009 where M made statements to her that the father was somebody who had inappropriately touched him.  These statements were made by M during the course of therapeutic counselling which had the purpose of teaching M some protective techniques against abuse. 

13. On 14 August 2008 Ms A and M were talking about fighting and how it hurts your body. Ms A asked if M had ever had anyone hurt his body or touched him. M replied ‘not now’ and ‘no-one touches me down there anymore’. When asked who touched his private parts M sighed and said ‘Not this again. I had to talk about this to the police’. After M was reassured that he could say anything to Ms A without being scared, and was asked again who touched him, he said “[the father] did”.

14. On 13 September 2008 Ms A and M were talking about ‘protective behaviours’ and what M could remember about the time when he lived with his mother and father. He recalled some fun things and when asked if there was anything else he hung his head and “nothing we did nothing”. Ms A followed this by saying it was never okay for adults to hurt or touch children. M asked why. When this was explained he said “like [the father] did to me.”

15. On 14 May 2009 M reported that he now knew that the father could not touch him.

16. The father said he may have showered with L once or twice and has showered with M. On one occasion, the father remembers he was in the shower and the two boys wanted to jump in. They did so, and the father hopped out 50 seconds later to let the boys shower themselves. RK remembers the father telling her this. He denies that either child may inadvertently have touched his penis, despite the size of the shower cubicle (1.3 x 1.3 metres). The father denies that L has ever seen him with an erect penis. He says that L may have seen him hold his penis, but only when he was washing it.

17. Although he seemed to deny it in his police interview, the father’s evidence was that he was involved in M’s bathing, which included teaching M how to wash himself and how to wash his genital area. He said this was a reasonably regular thing in M’s younger years.

18. The paternal grandfather said that on the Monday night before the hearing M had told the paternal step-grandmother that he was scared of getting into trouble. He said, when the paternal grandmother asked if he wanted to talk more about that he said that he had told police that ‘Dad had touched his wee’ and that it was an accident and it wasn’t true and that his father ‘just wanted to look at it’ because there was a sore. The paternal grandfather then asked if he had talked to his mother about this and M replied that “I’m not allowed to talk to you about that.” The paternal grandfather said he never talked to M about this previously, and acknowledged that the father had told him that he had to wash M’s penis when it was infected once. The paternal grandfather had talked to the father about these statements made by the child before giving evidence but not to Counsel, nor the Department. He does not believe there is any point in telling the Department, who “have failed to act with integrity”. I have said above that I find the paternal grandfather’s story difficult to believe. None of this was mentioned by the paternal step-grandmother.

Boys’ allegation against Mr Z

1. In June 2006 the mother’s older brother had taken the children to the police to report sexual abuse by the mother’s husband Mr Z. The mother said the boys had never made any such disclosure to her. The Department later attended upon the home to talk with the boys and Mr Z. The claim was found to be unsubstantiated. I was not provided with any greater detail about this during the hearing.

2. On 28 September 2006 the father also made a notification to the Department about Mr Z in relation to M and T. This was in response to M telling the father that Mr Z had hit him with a toy sword, and the father saw a bruise on his elbow. There was also an allegation that Mr Z squeezed T’s testicles. The complaint was investigated and found at the time to be unsubstantiated. The mother has since admitted that Mr Z squeezed T’s testicles. 

1. The 2007 report also mentioned that M was ‘clearly comfortable’ with SK, the father’s fiancé. SK also reports a good relationship with M and her affidavit evidence demonstrates that she is actively involved in his life. She and the father describe their relationship as stable, and are engaged to be married.

2. The other significant relationship to take into consideration is M’s relationship with the paternal grandparents. He had been seeing them weekly and they also assist with his education. I accept that he has a close relationship with his grandparents.

3. The mother is currently seeing another man by the name of Mr Y, who does not live with her. They have been friends for three years and have been in a relationship for 6 months. The mother says he spends about one night per fortnight at her house. He spends time with the children but does not have any of his own. Mr Y did not give evidence before me, and in the end that was of little importance. 

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (s60CC(3)(c), noting (s60CC(4))

1. There was substantial evidence put on about the mother’s lack of willingness to support M’s relationship with the father. The mother was initially very reluctant to have the father in M’s life. She did not tell the father when she was in labour, did not put the father’s name on the birth certificate, and refused the father time with M after he was born. I find that the mother was a victim of cyclical family violence, and this reluctance is most probably a result of that. Some time later the mother did enter into arrangements with the father for him to see M. This arrangement broke down when statements about sexual abuse were made.

2. The father was concerned that the mother intentionally coached T or M. I do not have sufficient evidence before me to conclude that this is so. As I have already said, nor do I have evidence to show collusion between the mother and TK to bring about L’s disclosures. I find that the mother honestly believed that there was a risk to M in being alone with his father, a belief that was reinforced by the Department’s actions and advice. Under these circumstances, the mother’s reluctance to facilitate time between the father and M while misplaced, is understandable. The same can be said of the mother’s idea to relocate to New Zealand, which was ultimately abandoned.

3. It was suggested that the mother would have difficulty in accepting the findings of the Court in relation to sexual abuse and that this could impact upon her facilitation of the child’s relationship with the father, particularly where the father admitted that he did in fact have an erection and had lied about that since 2004. The mother said in the proceedings that she would accept the findings of the Court and I find on balance that it is likely that she will.

4. Earlier in the trial, the father pursued orders to have the child live with him and have limited time with the mother. He denied this was because he wanted to punish the mother. These orders were pursued at a time when the father was convinced that the mother was coaching the children and colluding with TK. He considered this behaviour to be abuse, and considered the appropriate response to such abuse was to limit the child’s time with their abuser. His reasoning seemed to be that if he had been considered abusive and the appropriate action was to limit his time with the child, then the same should apply to the mother. I note that when the evidence was heard in the trial, (and there was little evidence that the mother was coaching the children or had colluded with anyone), the father abandoned his application that M ordinarily live with him.

5. Both the mother and father have acknowledged to the family consultant and to the Court that they accept the other party is an important part of M’s life and there should be a continuing relationship with the child. I do not feel there will be any difficulty in having the parents encouraging a relationship with the child and the other party.

Likely effect of any change in the child’s circumstances (s60CC(3)(d))

1. The family consultant and M’s psychologist have noted that the child has attachment issues, probably as a result of the turbulent changes in contact arrangements. M needs predictability and stability to remedy this, and the opportunity to develop his relationship with both parents. The consultant considers that to remove the child from the primary care of the mother would have only exacerbated this instability, and will undermine M’s ability to improve his attachment to important persons in his life. It would have also resulted in separation from his siblings, which are important relationships for the child.

2. The notion of stability was seen as a major issue by the family consultant. At the end of the trial there was no suggestion by the father that the child would be moved from his mother’s ordinary care. I am satisfied that M will not be adversely affected by a change which leads to him being reintroduced to his father rather than on a supervised basis, nor do I believe he would be adversely affected by a change to arrangements similar to those suggested by the family consultant.

Practical difficulties and expense of the child spending time and communicating with a parent (s60CC(3)(e))

1. The parents live relatively close to one another and have adequately facilitated changeover situations before.

2. I note a history of violence between the parties, and the mother’s reluctance to therefore come into direct contact with the father. Not only has the father been violent to the mother in the past, he exhibited harassing behaviour. The father admits the violence and says he acted “immaturely and badly for a period of time” but that he has ceased this behaviour. The family consultant’s report from June 2007 indicated it was important to keep the two parties separated. This is not just important for the mother but for M, who should not be exposed to conflict between the parties. The mother and father have not communicated for two to three years. Where the parents have been unwilling to see each other at changeovers, this has been sensibly mediated by Ms SK or the paternal grandparents. 

3. I note that the mother’s relationship with the paternal grandparents will have become strained through the course of these proceedings. While previously sharing an amicable relationship with the mother, both paternal grandparents were very vocal in the proceedings about their concerns with the mother’s parenting ability. It is probable that it will take some time for the feeling of hurt to subside which has arisen in the mother as a result of the critical statements. However, I do not see this probable rift as an insurmountable obstacle and am confident the mother will continue to interact with the paternal grandparents civilly, if not amicably.

The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s60CC(3)(f))

1. The father raised issues about the mother providing for M’s emotional and intellectual needs. The paternal grandparents also assessed the mother as ‘cold’ and neglecting M’s educational difficulties. They say that teachers have commented on the mother’s lack of communication with them and lack of home educational support.

2. The mother has attended meetings with the boys’ schools, and is addressing their educational difficulties. She has attended parenting workshops that assist in addressing M’s behaviours and other needs. Despite the mother’s past shortcomings, I find her parenting capacity has improved.

3. The paternal grandparents have been proactive in speaking to M’s teachers and using their time with him to address the ‘gap’ in his scholastic performance. I have no doubt that this will continue and will compliment the father and mother’s efforts.

4. The mother has been criticised for keeping M and T in harm’s way in the violent relationship with Mr Z, and for her lying to the authorities regarding the extent of this violence. The mother was involved once more in a cycle of violence at this time, from which it was difficult for her to escape. I accept she has undergone domestic violence counselling and is confident in her ability to avoid such situations in the future.

5. The paternal grandfather reports that the child made disclosures in the words “Mum said she wants to leave this world” and “She wants to leave to another world.” If these statements were in fact made by M, then there is no indication anywhere else in the evidence that they were taken seriously nor any suggestion that the mother has had suicidal ideation at any time.

6. The consultant notes in her April 2010 report that there is no information to suggest that the father has any difficulty providing for M’s needs. The consultant suggested the child’s willingness to go to his father during the week-about arrangement and reluctance to go to his mother may indicate the father was more responsive to M’s needs, but there was insufficient focus on this aspect for me to make an adverse finding against the mother.

The maturity, sex, background and lifestyle of the child and parents (s60CC(3)(g))

1. The father identifies as Australian, with his parents being European and Islander peoples. The mother originated from New Zealand. I note that the mother and father met at a Maori cultural dance. No evidence was provided about the role of traditional culture in the parties’ lives or M’s life.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i), noting (s60CC(4))

1. The mother had parental difficulties in the past. The mother said this was the result of different parenting practices between the households while the father said it was due to the lack of stability and routine in the mother’s home. The mother has addressed this issue with ongoing support from the Department and various parenting programs, and has now instituted age-appropriate routines, and says this was the best thing she has done. Since undertaking those programs, even the paternal grandfather admits that the mother has made significant improvements in her parenting skills.

2. The father was critical of the mother’s choice to change the boys’ school, which he believed was a reaction to T being suspended or expelled. The mother’s reason for changing the boys’ school, a response to ongoing bullying, is not a totally unreasonable reaction. The mother said she was advised by counsellor Ms A to make this move. I make no adverse finding against the mother in relation to this.

3. In the June 2007 family report, the father was recorded as being able to describe an appropriate daily routine and said that parenting involved loving the child, raising them to be honest and caring, to affirm and encourage them, and discipline them appropriately. The consultant noted that he presented as a ‘committed father’.

4. The current family consultant notes that it is reasonable that the mother experiences more parenting difficulties, as she is a single parent with three young boys, one of which has ADHD. Her difficulties may not be attributable to her parenting style but rather the home situation.

5. While the father has more support in his parenting of M, and a more favourable home situation, I do not think there is a significant enough difference between the mother and father’s current parenting ability to prefer one’s ability over the other.

Any family violence involving the child or a member of the child’s family (s60CC(3)(j) and(k))

1. The mother gave evidence of a long list of violent acts perpetrated by the father towards the mother when M was younger. As discussed, there is no current risk to M of family violence between the mother and father as this behaviour has ceased and the mother and father do not interact.

2. There is also no evidence to suggest that M is exposed to family violence between the father and his fiancé. While I have noted that SK paused excessively when asked about disagreements in her household, both she and the father deny there has been any domestic violence in this relationship.

3. There is no family violence in the mother’s current home. She has ceased her relationship with Mr Z and M has only come into contact with him once since the orders providing otherwise. I accept the mother’s evidence that the contact on that occasion was inadvertent on her part.

Likelihood of order leading to further proceedings (s60CC(3)(l))

1. The Department indicated they would accept the findings of the Court and would not institute further proceedings without further circumstances arising. The mother also indicated she would accept the findings of the Court.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. As indicated earlier in the judgment, the mother sought sole parental responsibility in her favour. The father, supported by the Independent Children's Lawyer, at the end of the hearing sought an order for equal shared parental responsibility. The Department expressed no view one way or the other. Counsel for the father agreed that the presumption of equal shared parental responsibility was rebutted by the existence of family violence in the relationship (s 61DA(2) FLA), but submitted that it would be otherwise in M’s best interests. Counsel for the father suggested an option may be to provide for alternate dispute resolution in the event that the parents cannot reach agreement.

2. The main areas where the parties would need to reach a consensus would be M’s future education, any major medical decisions and any religious upbringing. The area where the child will live and his name will be settled by my orders. The father indicated that had an order been made that the child would live with him (which application was not pressed) he would have looked to change the school that M currently attended.

3. Counsel for the father did make the point that the parties had by consent entered into terms providing for equal shared parental responsibility in October 2007, and that all that had happened since that time is that it has been alleged that there was an unacceptable risk that the father had sexually interfered with M and the other two boys, an allegation that I have found is without merit. I note the family consultant’s April 2010 report that states that “the allegations of sexual abuse have resulted in a complete breakdown of the parental alliance.” In her updated report she added that the father’s admission that he had an erection in the shower with T “has no doubt increased [the mother’s] mistrust of [the father] and damaged their parental alliance.”

4. Counsel for the father pointed to the way in which the mother had disregarded the guardianship order made under child welfare law in recent times. That disregard related to:

   213.1.Changing M’s school;

   213.2.M having his adenoids out;

   213.3.Dental hygiene; and

   213.4.Inappropriate haircuts.

5. It is a powerful submission that the provision of equal shared parental responsibility will provide the father with a feeling of greater inclusion in M’s life.

6. At the end of the day I have to make a decision as to what is in M’s best interests. The Independent Children's Lawyer and the father say that I should look to M’s future with some degree of hope. Both parents say that they can communicate with the other parent, whilst at the same time saying that they did not believe that the other parent could communicate or cooperate with them.

7. I find that animosity that both parties have towards the other runs deep. Whilst the father and the mother said they themselves would be able to forgive, the parties are not going to be able to easily communicate with one another in the short term. The mother certainly indicated she would not be comfortable in any face-to-face meeting with the father, nor would be comfortable talking to him on the telephone. The parties would need to communicate by email. I am mindful of the history of domestic violence.

8. The family consultant stated in her 2007 report that “it is doubtful that the parents will be able to constructively communicate and agree on parenting issues” and suggests the parent with the majority care of M have sole parental responsibility.

9. These proceedings have probably only created new hurdles for the future relationship between the parties.  The father has a close relationship with his parents and they will play a role in M’s future. 

10. The paternal step-grandmother also said some fairly frank things about how she felt about the mother’s emotional response to the child.  She said she had observed a remoteness and a coldness when the mother was with the children.  She seemed to be of the opinion that the mother was not aware of the emotional needs that the children had. She was also critical about the mother’s physical care of the child and gave as examples the child’s dental care, inappropriate diet, issues around sleeping routines and the mother’s method of disciplining the child. She also criticised the mother’s involvement in the child’s educational development, citing what she believed were deficiencies in the mother’s attendance to the child’s homework, particularly reading.

11. Up until her evidence in the witness box, I accept that the paternal step-grandmother had kept her views from the mother; had never actively involved herself in any conflict with the mother and had been at pains to be courteous to the mother.  I accept the mother’s evidence that she was surprised by the evidence given by both the paternal grandparents; was hurt by it and said she would take some time to get over it.  Whilst the paternal step-grandmother was more objective than the paternal grandfather, there was some aspects of her son’s history with the mother that the paternal step-grandmother did not seem to appreciate in full, notwithstanding she said she had read most of the written material that had been prepared in respect of this matter.

12. At this stage I am not confident that the parties, if they had different views about an issue relating to parental responsibility, could reach a consensus between themselves. My conclusion is that it is unrealistic, particularly in the short term, to find that it is in M’s best interests to set up a situation where the matter may have to come back to Court because the parents are unable to agree on a major decision about M. In those circumstances I think it is in M’s best interests to provide sole parental responsibility to one of the parents, on the basis that they must consult before making any final decision and take into account the views of the other parent.

13. Counsel for the father submitted that it shouldn’t necessarily follow that the mother should be the person who has that responsibility given her track record as to how she made unilateral decisions during period of joint guardianship. Whilst there is some merit in that submission, I think it is on balance, in M’s best interest to place sole parental responsibility in the hands of the parent with whom M will spend the majority of his time and with whom it is hoped the child will find a stable base.

14. The orders for sole parental responsibility will be made in the terms requested by the mother, subject to what I say in the next paragraph. The order will be confined to issues in respect of education, medical operations and religion.

15. The mother in the past has considered moving away from the Cairns area. If that happened, the orders I have made for M to spend time with his father would be made nugatory. The mother is not (unless written consent from the father or a further order is made by a court) permitted to move the child away from the reasonable proximity of the father’s residence, so that the orders in relation to regular time between M and his father are not frustrated by such a move.

M’s surname

1. The father originally sought an order that there be DNA testing. That application was abandoned early in the hearing for reasons referred to above.

1. The family consultant expressed the opinion that M’s surname should not be changed as he now identified with ‘Roman’ and to create a hyphenated surname would create conflict if either parent was to take a short-cut and use only half of it. She was tested during cross examination by counsel for the father about that opinion and the family consultant’s position did not change during that questioning. In final submissions the father accepted the mother’s proposal that Eicher be added as M’s second last name. It is not however to be part of his surname. He is still to be known at school and generally by the surname ‘Roman’. The hyphenated surname ‘Eicher-Roman’ was not recommended by the report writer and in the end was not an option that the father pressed.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. Given that no order will be made for equal shared parental responsibility the provisions of section 65DAA FLA do not automatically arise. Nonetheless the Independent Children's Lawyer and father propose that M spend substantial and significant time with his father. It is appropriate in those circumstances to consider the matters listed in s65DAA(5) although I am not strictly required by the legislation to do so. I also need to consider what arrangements in relation to M spending time with his father are in the child’s best interests.

CONCLUSION ABOUT BEST INTERESTS

1. The unchallenged evidence of the family consultant (whose opinions were otherwise relied upon heavily by the father and the Independent Children's Lawyer) was that a shared care arrangement and frequent changeovers are not recommended. Instead, she recommends that M live primarily with one parent and spent significant time with the other parent (Friday after school until Monday morning before school, and additional time in the holidays). Although the consultant did not say this was to be each fortnight, statements by the family consultant during oral evidence indicated that that was her intention, as does her opinion that frequent changeovers are not recommended. The consultant noted that to avoid further upheaval, the child should live primarily with the mother.

2. None of the proposals are in line with the recommendations of the family consultant.  The position of the Independent Children's Lawyer (and the father) are for M to spend considerably more time with his father than recommended by the family consultant.  The family consultant’s views about the amount of time were not tested by counsel for the Independent Children's Lawyer. Even the mother’s application is more generous than is being recommended by the family consultant (the mother is offering an additional night per fortnight).

3. Taking all matters into consideration, I consider that the family consultant’s opinion should be given considerable weight.  Having said that however, it is my view that it is appropriate to adopt one of the positions of one of the parties in terms of the amount of time that the child spends with his father.  The mother’s position is the closest position and I find that it is in M’s best interests to spend from Friday after school until before school each Tuesday each alternate week with his father. 

4. The reasons for making the orders for M to spend time with both of his parents as I have are as follows.

5. My fundamental position is that I accept the analysis of the family consultant in regards to sexual abuse allegations and I find there is no unacceptable risk of abuse.

6. The reason the report writer gave for M needing a stable base was that the child’s attachments at the moment are somewhat fragile and need to be reinforced by him establishing a regular and solid routine from a stable base. I agree with this proposition and intend to provide this stability in my orders. I assess that this stable base will be enhanced if M is to live with the mother. I have confidence in the mother’s growing parenting ability and her potential to meet the needs of the child.

7. M has a good relationship with the father. Nevertheless, the family consultant feared that the child may have formed a false belief that the father sexually abused him. To address this false belief, the family consultant suggested that both T and M have my findings explained to them (see below).  Any such belief held by the boys will also abate if they spend time with the father and have the opportunity to see that they are indeed safe.

8. I have found the sibling relationship between M and his two brothers is very important and the order that I make maximises the time that the brothers can spend together.

9. The proposal allows the father and the paternal grandparents to have some involvement with M’s schooling on a fortnightly basis, and to maintain M’s relationship with the extended paternal family.

10. The order that I will make allows the parties to reach agreement for M to have further time in the father’s household if they agree that this is appropriate. I do not have a great deal of confidence that this ability to agree will happen quickly.

11. I am not attracted to the proposition put by Counsel for the father that the father has moved his position a significant way (he wanted M to live with him full time) and therefore the mother shouldn’t be seen as ‘winning’ in having the Court make an order in precisely the terms that she seeks.

Graduated Regime

1. The family consultant said that it would be in M’s best interests to re-introduce the child to extended time with his father on a graduated basis. She indicated that this does not need to be over a lengthy period of time. She said a conservative regime would be the first eight occasions (a period of 16 weeks during school term). The mother suggested that this would be:

   239.1.On the first two weekends – day time Saturday;

   239.2.On the next two weekends – from after school Friday until Saturday;

   239.3.On the next two weekends – after school Friday until Sunday afternoon;

   239.4.On the last two weekends – after school Friday until Monday morning before school;

   239.5.As a final arrangement – after school Friday until before school Tuesday.

2. The Independent Children's Lawyer in the orders proposed by her has a less conservative period of reintroduction of M to the father and given the child’s current relationship with his father, I agree a shorter period of reintroduction is appropriate. I find that some period of reintroduction would be in M’s best interests. The report writer recommends that the reintroduction initially happen at the home of the paternal grandparents given that the child is used to being at their home on a regular basis. Whilst that suggestion has some attraction, I do not intend to make that a condition. If the father chooses, he can have the child in his own home during the whole period of the reintroduction.

3. I think it would be sufficient to have the suggested regime of eight occasions reduced back to a regime of 4 occasions:

   241.1.On the first weekend – day time Saturday;

   241.2.On the next weekend – from after school Friday until Saturday;

   241.3.On the next weekend – after school Friday until Sunday afternoon;

   241.4.On the last weekend – after school Friday until Monday morning before school;

   241.5.As a final arrangement – after school Friday until before school Tuesday.

PROPOSED ORDERS

1. There is some commonality between the mother’s application and the Independent Children's Lawyer’s application which was supported by the father.

2. All parties agreed in the end that the child was to live with the mother. There was also agreement about the child’s name, the location of handovers, the mother holding the child’s passport, overseas travel arrangements, for each party not to denigrate the other, and for arrangements to collect the appropriate documentation for child support and birth certificate.

3. I have already discussed my reasons for the orders that the child live with the mother, the amount of time spent with the father on a fortnightly basis, and the order for sole parental responsibility.

4. The order that the mother keep the father informed of certain matters is an order proposed by the mother and I accept it is appropriate to make an order in those terms.

5. The mother provided little guidance in her proposed orders for the arrangements on special days or telephone contact. I have therefore broadly followed the father’s proposals in respect of those matters.

6. As indicated above, I have restrained the mother from relocating.  It is also appropriate to make the order sought by the father to the effect that the other parent be notified if M is to be taken out of the Cairns area for more than 48 hours.

7. The father suggested telephone communications between M and the parent with whom M is not living on Monday evening and at any other time requested by the child.  The mother did not propose any order.  The order suggested is appropriate (even given the child will be going back to his mother on Tuesday afternoon once the initial graduated reintroduction has been completed).

Explaining the findings to M and T

1. There was evidence from the family consultant that it would be appropriate for M and T to have explained to them the effect of my findings in relation to there being no unacceptable risk as a result of past behaviour by the father. Any false belief that T and M had been sexually abused may be ameliorated if they are told that they are safe with the father who is not someone who is a risk to them. The parties have agreed that I make an order that this information be given to M and T, and the parties agree that the appropriate person to do that is Ms C or her nominee. Ms C wrote the 2007 reports. It would have been most appropriate if Ms F did this job, but given that she lives in Hobart, it is probably logistically difficult unless she is in Cairns at some other future convenient time for her to carry out the task.

Interim orders

1. On the last day of the hearing an issue arose as to how orders could be made that were compatible with the orders that have been made under the orders of child welfare laws. The orders made under child welfare law expired on 12 August 2010. Given it was unlikely detailed reasons for judgment could be delivered in that timeframe; it was agreed that an interim order be made that would come into effect upon the expiration of the child welfare order on 12 August 2010. That interim order mirrored the current order under the child welfare law, save that the Department would no longer provide supervision of the father’s time with the child but rather that supervision would be provided by an identified person agreeable to the mother. It was expected that interim order would only operate for a short period of time until the final orders were made. Those interim orders will be discharged.

WHETHER THE DEPARTMENT BEHAVED IN A PROPER MANNER

1. Both the father and the paternal grandfather indicated that they held the Department partly responsible for the fact that M had not been able to see his father except for 2 supervised hours per week, in 2 years and 4 months (at the date of the hearing). The father claimed he is being treated as if he was ‘guilty until proved innocent’ and that the Department closed their minds to any evidence that could support his innocence.

2. It is true an experienced report writer who had been tasked with responsibility for reviewing all of the available material that was generated for the purposes of this trial, reached the conclusion that there was no unacceptable risk. It is also true that I have reached a similar conclusion after hearing the matter for 6 days and reviewing all the material. I do not think it is necessarily the case that the Department behaved inappropriately by having a different view, at least up until the period of time where the Department was able to hear all the evidence during the six days of hearing.

3. The Department were no doubt mindful that the three boys had made statements which would indicate that there may be an unacceptable risk that the father had interfered with the three boys. More importantly the Department had information from an independent psychologist, Ms A, that it was her opinion, having worked in a therapeutic way with M that there was an unacceptable risk that the child had been sexually interfered with by his father. I made it clear during the trial that this was not a trial about whether or not the Department had acted in an appropriate way but rather a hearing about what parenting arrangements were in M’s best interests for the future.

4. Based upon the material I have read and the oral evidence I have heard over a period of six days, I find that nothing that the Department did in the history of this matter should be viewed as an inappropriate exercise of the powers which are vested in the Department.  The Department had enough information in March 2007 to take the action it did.  It is obviously regrettable that an incorrect conclusion persisted for so long, but there has now been the opportunity for all the available evidence to be considered and tested. 

5. The father contributed to what has happened by consistently denying the truth about his erection which the mother knew she had seen in 2002, until he admitted it on the second day of this hearing.

6. It would be best for M if the father and the paternal grandparents looked to the future and focused upon what they can do to improve M’s life, rather than seek to apportion blame for what has happened between March 2007 and now.

I certify that the preceding two hundred and fifty-six (256) are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 September 2010.

Associate: 

Date:  7.9.2010