FLEMMING & ORBAN

[2019] FCCA 306

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLEMMING & ORBAN [2019] FCCA 306

Catchwords:
FAMILY LAW – Final parenting hearing – unacceptable risk – father convicted of sexual offences against mother when she was under age – allegations of sexual abuse made by other female relatives – whether or not the father should have unsupervised time with 13 year old daughter and 14 year old son – if supervised whether or not it should continue to be professional supervised or supervised by his wife – Department of Health and Human Services intervenes last day of trial.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(2A), 60CC(3), 69ZW

Cases cited:

Waterford & Waterford [2013] FamCA 33

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

M &M [1988] HCA 68

Betros & Betros [2017] FamCAFC 90

Applicant: MS FLEMMING

Respondent: MR ORBAN

File Number: MLC 9339 of 2010

Judgment of: Judge Harland

Hearing dates: 24, 25 & 26 September & 26 October 2018

Date of Last Submission: 7 December 2018

Delivered at: Melbourne

Delivered on: 15 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Bonney

Solicitors for the Applicant: Melville Orton & Lewis

Counsel for the Respondent: Mr Strong

Solicitors for the Respondent: Victoria Legal Aid

Counsel for the Independent Children's Lawyer: Ms Goldsworthy

Solicitors for the Independent Children's Lawyer:

Counsel for the Department of Health and Human Services (fourth day of hearing only):

Perisic Lawyers

Mr Berkozitch

ORDERS BY CONSENT

1. That all previous parenting Orders be discharged.

2. That the Mother have sole parental responsibility for the children of the relationship, [X] born … 2004 and [Y] born … 2006 (“the children”).

3. That the children live with the Mother.

4. That each party keep the other advised of their contact telephone number and an active email address and notify the other within 24 hours of any change to same.

5. That the Mother notify the Father in the event of any serious illness or injury to the children and authorise any treating medical practitioner including specialists and counsellors to provide information to the Father including discussing the children’s treatment with the Father save for such information which falls within s.32C of the Evidence Act or is deemed confidential by the operation of law.

6. That the Father be at liberty to obtain copies of all school reports, newsletters and photograph Order forms and be at liberty to speak to the children’s teachers in relation to the progress of the children.

7. That the Mother be restrained from changing either of or both children’s names unless agreed in writing by the father.

ORDERS BY THE COURT

1. That the children spend time with the father on such days and times as can be accommodated by the Town A Children’s Contact Centre.

2. That the children spend such other professional supervised time with the father as the parties may agree in writing and the father shall be responsible for the costs of such supervision.

IT IS NOTED that publication of this judgment under the pseudonym Flemming & Orban is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9339 of 2010

MS FLEMMING

Applicant

And

MR ORBAN

Respondent

REASONS FOR JUDGMENT

1. The issue in this case is whether or not the children are at an unacceptable risk if they spend unsupervised time with their father and, if they are found to be at an unacceptable risk if they have unsupervised time, whether time should continue to be professionally supervised or whether that time should be supervised by the father’s wife. For the reasons I shall give I find that the children are at an unacceptable risk of harm if they spend unsupervised time with the father.

2. The children are [X], born … 2004 (“[X]”), aged 14 years and [Y], born … 2006 (“[Y]”), aged 13 years. The children have only spent supervised time with their father, apart from a brief period in 2011, since their parents separated in 2009.

3. The mother does not dispute that the children love their father. It is apparent from the supervised contact records and the family report that the children love spending time with their father. The supervised contact reports do not raise any issues of concern with respect to the father’s conduct during those visits.  The contact supervisor was not required for cross-examination.

4. The father seeks to spend unsupervised time with the children. In the event the Court is satisfied that it is not in the children’s best interests that they spend unsupervised time with him, he seeks that his time be supervised by his current wife, Ms B.

5. The mother opposes the children spending unsupervised time with the father. She also opposes Ms B supervising the father’s time. She does not trust her and does not think she will be protective. The father is spending irregular supervised time at the Town A Children’s Contact Service. The most that this centre will be able to offer into the future is four contact visits a year. The centre may not be able to accommodate visits as frequently as that. The ability to do so is dependent on the other demands on their service. I cannot discount the possibility that they will not be able to offer supervised time in future years as the children get older.

6. There is little in this matter that is factually in dispute. For this reason the cross-examination of the mother was brief. The mother appeared at trial via video link from another courtroom in the building. The mother’s witnesses also gave evidence from that courtroom.

7. At the beginning of the trial the parties advised that they had resolved the issue of parental responsibility as the father agreed that the mother should exercise sole parental responsibility subject to the mother keeping the father informed of various issues and being authorised to contact the schools.

Chronology

1. Before discussing the evidence in this case, it is necessary to set out a chronology as there are many historical issues raised in this case.

2. The mother is 33 years old.

3. The father is 46 years old.

4. The father was previously married to Ms C. They have two children together, Ms D born … 1995 and Mr E born … 1996.

5. The mother says the parties commenced their relationship in 1998 when she was 13 and the father was 26.

6. In his trial affidavit the father says that he and the mother commenced their relationship in or around 1999 when the mother was approximately 13 or 14 years old and he was around 26 years old. They moved in together in 2003 and married on … 2004 when the mother was 18.

7. There are two children of the relationship. [X] was born on … 2004 and [Y] was born on … 2006.

8. In 2007 DHHS intervened because of allegations that the father sexually abused his daughter Ms D and his niece Ms F.

9. DHHS instituted proceedings in the Children’s Court of Victoria. Those proceedings were resolved by way of an undertaking.

10. The parties separated on 5 September 2009 and were divorced on 25 October 2011.

11. After the parties separated the children lived with the mother and spent alternate weekends with the father.  Those arrangements remained in place until DHHS intervened again in 2010.

12. In mid-2010 DHHS again commenced proceedings in the Children’s Court.  The father says he believes it is because DHHS had found out that he and the mother had separated and he was spending unsupervised time with the children. He says DHHS again required his time to be supervised due to the 2007 allegations.

13. The parents entered into an agreement with DHHS that the children would spend supervised time with the father and that the mother and children would attend counselling with a Centre Against Sexual Assault (“CASA”).

14. The mother commenced family law proceedings in the Magistrates’ Court of Victoria in the Town G registry on 20 July 2010. Those proceedings were transferred to the then Federal Magistrates’ Court of Australia.

15. From February 2011 to July 2011 the children spent supervised time with the father. The father says that his time was supervised by a man called Mr H who worked at the Employer 1 and that DHHS also required him to attend a psychologist Mr J for an assessment. The father says he found those sessions traumatic and intrusive.

16. The mother says DHHS intervened again in June 2011 referring to the same sexual abuse allegations.

17. The Federal Magistrates’ Court, as it was then known, made final orders on 28 July 2011. Those orders provided for the parents to exercise equal shared parental responsibility for the children, the children to live with the mother; and the children to spend unsupervised time with the father. Those orders were made by consent.

18. On 29 November 2011 the mother made a notification to DHHS alleging that [Y] disclosed sexual abuse by the father when she returned from a weekend contact the day before. [Y] was about five years old.  The father denied ever touching [Y] in the way she alleged and said that he has never touched either of the children inappropriately. The father said DHHS became involved again and started fresh proceedings in the Children’s Court.

19. On 1 August 2012 orders were made in the Children’s Court providing for the father to have supervised time with the children as agreed with DHHS or its nominee to supervise that time unless DHHS considered the supervision was no longer necessary.

20. On 6 August 2012 the mother made a report to the police about her and the father’s sexual relationship.  Her case is that they started having a sexual relationship when she was 13.  The father says she was 14. In his affidavit at [60] the father italicises the words “13 to 15 years old”.

21. In 2013 DHHS sought that the supervision orders be ended and further supervision orders were made on 20 December 2013.

22. In 2014 DHHS sought both orders be extended further. Those proceedings were resolved with DHHS being granted leave to withdraw on 8 April 2015 following orders made by the Federal Circuit Court of Australia on 20 March 2015 which provided for the children to spend supervised time with the father at Town A Children’s Contact Centre.

23. The mother married her current husband on … 2014.  They have two children together.

24. The father married his current wife Ms B on … 2014. The father says he is his mother’s carer, who lives a few units away in the same complex he and his wife live in.

25. On 25 March 2015 the father pled guilty in the County Court of Victoria to two charges of sexual penetration of a child under 16 and two charges of indecent acts with a child under 16. He was sentenced to two years imprisonment which was wholly suspended and he was placed on the sex offenders register for life.

26. The father says that in September 2017 he sought assistance from Mental Health Services at Southwest Health Care after experiencing suicidal thoughts. He said he had not felt that way before but the distress of the proceedings, the previous criminal proceedings, the death of his father and the recent news that DHHS was concerned about the father spending time with his wife’s grandchildren contributed to these thoughts.

27. At [25] of his trial affidavit the father says the following:

    I recognise now that it was completely inappropriate to commence a relationship with Ms Flemming when she was under 16.  At the time however, I simply fallen in love with her and we had planned to spend the rest of our lives together.  Indeed, we married and had children with that shared goal in mind.  My parents had a greater age difference between them and have been happily married for decades.  This is what I wanted for Ms Flemming and me.  We were in a relationship together for approximately 10 years.  Whilst I deeply regret the circumstances in which our relationship began, I do not regret the two children we had together.

28. The father repeats his comment about acknowledging the inappropriateness of the relationship and the serious consequences of it at [84] of his affidavit.

29. The father says that after they separated they remained on good terms until about 2011. Both had met their current partners. He says he had regular unsupervised time with the children until DHHS became involved in mid-2010.

The mother’s case

1. The mother’s case is that both children will be at an unacceptable risk if they spend time with their father anywhere other than a supervised contact centre. She says there is a risk to both children and they should not be treated differently.

2. The mother relied on her trial affidavit, the affidavit of Ms D the father’s oldest daughter from a previous relationship, Ms C who is Ms D’s mother, and Dr K.

3. When the allegations of sexual abuse were first made against the father, the father and mother were still in a relationship. At first, the mother believed the father.

4. The mother’s evidence is that when the allegations against the father first surfaced in 2007 she believed the father. She says she did not go to the police station with him but did go with him to DHHS interviews.

5. It is the mother’s case that when she took the children to the Centre Against Sexual Assault (“CASA”) for counselling, as directed by the Department of Health and Human Services (“DHHS”), it was during the course of that counselling that she realised her relationship with the father was inappropriate.

The father’s case

1. The father denies all allegations of sexual abuse made against him with the exception of the mother. He says the complaints are malicious and that the mother and Ms C have conspired against him. The father is concerned about what the mother tells the children.

2. The father says he has tried to maintain a strong and loving relationship with his children with the restricted involvement he has been permitted to have in recent years.

3. The father says he does not talk to the children about inappropriate topics or blame others as to why his time with the children is limited.  More recent visits have been supervised at various locations including a playground, the beach and the pier.

4. The father says that after a gap of four months he saw the children on 1 September 2018. He says the children interacted with him as they always have and told him that they love him.

5. The father says his time does not need to be supervised. If the Court finds that it does need to be supervised, he says his wife is an appropriate supervisor. He also wants telephone contact with the children. He says [X] has his own phone and that this contact could be arranged without the mother’s influence.

The Independent Children’s Lawyer

1. In essence, the Independent Children’s Lawyer’s (“ICL”) position is the same as the mother’s.

The Department of Health and Human Services intervention in the proceedings

1. DHHS attended the trial on the last day of the hearing and sought to intervene. In most instances when the court seeks DHHS to intervene they decline. In some instances they appear as a friend of the court. DHHS provides valuable information to the court, often with the assistance of the DHHS liaison officer.

2. In this case, DHHS has had significant involvement with the family over many years. There have been Children’s Court proceedings and DHHS has carried out investigations in part because of the father’s reporting obligations, being on the sex offender’s register.

3. Being a party to the proceedings means that DHHS can appeal the order, if so advised, rather than commence proceedings in the Children’s Court as has happened previously. It is not unusual for parties to be advised to obtain parenting orders from this Court once the protective concerns which resulted in Children’s Court proceedings have been satisfactorily addressed. This is one of the drawbacks of the family law jurisdiction being governed by federal law and child protection by state law. The Protocol between the Department of Human Services, the Family Court of Australia and the Federal Magistrates Court dated May 2011 has enhanced communication, cooperation and understanding between the federal courts and state child protection authorities.[1]

   [1] R Chisholm, Commonwealth Attorney-General Department, Information-Sharing in Child Protection Enhancing Collaboration (2013) and Family Law Council Report to Attorney-General on Families with Complex Needs and the Intersection of Family Law to Child Protection Systems, Final Report June 2016.

4. In Victoria this Court has been greatly assisted by the DHHS Liaison Officer located at the Melbourne Registry who has been able to assist with information flow and cooperation in both directions across the state, greatly benefiting families and saving scare resources.

5. As DHHS intervened on the fourth day of the trial, its Counsel did not have the benefit of hearing and testing the evidence of the parties and their witnesses, particularly Ms B and the family report writer.

Legal Principles and their application to children’s issues

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.

2. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.

3. In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.

4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  In the circumstances of this case section 60CC (2A) applies the Court must place a greater weight on the risk to children of abuse than on the benefit to the children in having a meaningful relationship to father.

5. The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

6. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. 

9. The parties have agreed that the mother have sole parental responsibility. I am satisfied that such an order is in the children’s best interests. It is not necessary to discuss the issue of parental responsibility further.

10. The focus of this case is on whether or not the father is an unacceptable risk to his children.  The leading case on unacceptable risk remains the High Court decision of M &M (1988) HCA 68. The task of family law courts is different to the criminal courts. The court is not obliged to make a positive finding that abuse has occurred or negative finding that abuse did not occur. In many circumstances the court will not make a positive or negative finding as the court focus is on the best interests of the children. The High Court stated at [25]:

    Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

1. In assessing whether the children are at an unacceptable risk I must consider the nature and the magnitude of the risk. If I am satisfied there is a risk I must determine how serious the risk is. Then I must determine if the risk can be managed and, if so, how it can be managed.

The mother’s evidence

1. When the mother was cross-examined by the father’s Counsel, she agreed that when Ms D and Ms F first made the allegations against the father in 2007 she did not believe them.

2. She rejected the proposition put to her by the father’s Counsel that she did not witness anything concerning between the father and Ms D. She said on one occasion she walked into Ms D’s bedroom and Ms D did not have any underwear on. She rejected the possibility that the father was helping Ms D getting dressed and said that she was six or seven years’ old at the time. She said that the father told her he was putting the children’s names in their clothes so that their mother would return them.

3. She said on another occasion when they were camping Ms D was bathing in her underwear and she saw the father looking at her vagina.  She agreed that these were the things she witnessed over a four year period.

4. The mother agreed that many of her concerns were based on the information that DHHS has given her until Ms D confided in her.

5. The mother acknowledged that she agreed to the consent orders in 2011 for unsupervised time but said whilst she applied for it, Legal Aid would not grant her funding for the trial. She felt unable to represent herself and felt pushed into agreeing to the consent orders.

6. The mother says she did not ask the children what went on when they visited the father’s home and just asked normal things such as “how did it go?”

7. Exhibit A is an affidavit by Ms L affirmed on 13 December 2011 and filed in the Children’s Court proceedings, which were on foot at that time with respect to [X] and [Y]. The affidavit was prepared in support of DHHS’s application for an Interim Accommodation Order while DHHS carried out further investigations. At [43] Ms L summarised DHHS’s concerns at that time which included:

   a)a significant history of sexual abuse allegations being made against the father by Ms D and Ms F both of whom were granted victims of crime compensation on the balance of probabilities based on information provided by CASA:

   b)the lack of a thorough and specialised assessment of the sexual abuse allegations and the risks of the father committing sexual offences given the father’s failure to engage in the assessment undertaken in a meaningful way and his refusal to participate in any further assessments and has minimal cooperation with DHHS;

   c)[X]’s ongoing sexualised behaviour; and

   d)the family law orders providing for unsupervised time against the recommendations of the department and CASA.

8. The father’s Counsel cross-examined the mother about [21] of Ms L’s affidavit where she refers to concerns in 2010 about [X] displaying sexualised behaviours at school. She was cross-examined about [26] where Ms L said that DHHS received a notification on 30 June 2011 that [X] had touched [Y]’s vagina and “kissed a prep boy a few times.” Having had that read to her the mother said she recalled that. The mother said the concerns about [X] were raised when the disclosures were made about the father touching [Y]. The father’s Counsel cross-examined the mother about [X] making a disclosure to CASA about touching [Y]’s vagina. The mother said she did not recall an allegation about [X] touching [Y].

9. The mother agreed she had raised concerns about the father bathing the children. It was put to her that the father ensured the children were showered but he did not bathe them. She said that is what the children told her.

10. At [35] of her affidavit Ms L records the mother reporting to her on 29 November 2011 that [Y] had disclosed to her that her father had touched her ‘girl spot’. The mother told Ms L when she collected the children from school after they spent the weekend with the father that [X] was angry.  [X] had previously complained to his mother that [Z], a child of the father’s partner, had been hurting him and picking on him. When asked by the mother, [X] said no one else was hurting him but [Y] said “Daddy only touched my girl spot when he picks me up and cuddles me in the dark.” The mother asked [Y] if the father did this on top of or under her knickers and [Y] said under. [Y] then said she did not want to answer any more questions.

11. The father’s Counsel cross-examined the mother about [36] of Ms L’s affidavit where she records the mother telling her that she was required to ask [Y] if anyone else had touched her ‘girl spot’ as the school had contacted the mother about a child showing sexual behaviour at school.

12. When cross-examined the mother said she recalled asking [Y] if the father touched her over or under her knickers and then called DHHS.

13. At [38] Ms L said that [Y] would not engage with the interviewer from SOCIT and that they would try and establish a rapport with her over the next couple of months before trying again. Ms L interviewed [Y] later that day as she had interviewed her before. She described the disclosures [Y] made to her at [40]. [Y] said her father touched her on her ‘girl bit’, which she identified on a drawing as being her genital area under her knickers. It happened one time. The mother agreed that [Y] did not make further disclosures to her.

14. When cross-examined by the ICL’s Counsel the mother said that [X] was not afraid of his father and [Y] is not afraid provided the time is supervised. Both look forward to seeing their father. The mother has never had to force them.

15. The mother said that she spoke to Ms D after she found out that Ms D had told the children about the allegations. She told Ms D that she had been trying to shield the children. The children see Ms D about three times a week. The mother is not always present. The mother acknowledged that it is possible that [Y] is influenced by Ms D.

16. The mother said that on many occasions the children have asked her why they spend supervised time with their father. She said that she tells the children she is not allowed to discuss it with them.

17. When the mother was re-examined by her Counsel, she said neither CASA nor DHHS gave her any guidance as to how to tell the children about why they have supervised time with their father.

Ms D

1. Ms D swore an affidavit in support of the mother. She says her parents separated when she was three years old. There were several court proceedings between her parents during her childhood. In 2002, when she was 7 years old, Ms D alleged that the father sexually abused her.  The mother says she was present when the father was interviewed by police in 2002.  There were family law proceedings on foot at that time between the father and Ms D’s mother, Ms C.

2. The father obtained orders of unsupervised time with Ms D and Mr E in those family law proceedings.

3. In 2007 Ms D made further allegations against the father.  She was about 12 years old. The mother says she was present during several police interviews between the police and the father about the allegations in 2007. The mother says police informed them that there was insufficient evidence to proceed to criminal charges.

4. At [7] of her affidavit she provides details of the allegation she made against her father. She says the incident of sexual abuse occurred when she was seven years old during a contact visit. She told her mother when she got home and spoke to the Town G police.

5. At [8] Ms D says a few months later she recalled an earlier incident of sexual abuse when she was about three years old. She told her mother and the police. She says both times the police said there was not enough evidence.

6. She recalled that sometime after this she had supervised time with the father, then it reverted to unsupervised time. She spent unsupervised time with the father from the ages of seven to 12. Usually, the mother and her brother, Mr E, were also present. She says that whenever they were alone the father would touch her inappropriately. She says she “gave up telling anyone about this”.

7. Ms D says that when she was 12 she chose to stop spending time with her father because of the sexual abuse. She did not have any contact with him until she was 16 when she was estranged from her mother, Ms C, and other family members. She said she was lonely at the time and wanted to have contact with family. At that time the father was in a relationship with Ms B but they were not living together. She stayed at Ms B’s house periodically. She says she made sure she was never alone with her father and he never abused her again.

8. When cross-examined by the father’s Counsel, Ms D agreed that she had a room at Ms D’s home.  She said she was not technically living there but conceded that she spent the majority of her time there.

9. When cross-examined Ms D was asked to reflect on her statement that she was never alone with her father and she said she never put herself in a position to be vulnerable. She conceded that there were activities where it was just the two of them. She said she always felt worried around him.

10. Ms D says she cut ties with her father when she was 18 and further allegations were made that he sexually abused other children. She says that the father and Ms B said at the time that all the allegations were lies.

11. She denied the allegation that her mother told her to make these allegations and she said they are all true.  She said no one told her to make the allegations. She said she made three allegations.

12. Ms D said that she did not talk to [X] and [Y] about the allegations in any detail. She then said she did not remember talking to [X]. She said she told [Y] that she had been through some stuff when she was a child and told her to be cautious if she spent unsupervised time with their father. She said this was in the last 12 months. She does not believe that the father is a safe person to be around. She said this was the extent of her discussions with [Y] as far as she can recall.

13. She agreed that she had warned [Y] about their father and she said that she did this after [Y] started questioning her about what happened and why she did not speak to him anymore before Ms D told her anything. She denied being specific about the allegations with [Y]. It is credible that at [Y]’s age she would be asking questions.

14. When cross-examined by the ICL’s Counsel she said that her partner had nothing to do with her stopping seeing her father and that she stopped having anything to do with her father when she fell pregnant with her daughter.

15. The mother says that during their relationship the father told her that Ms D was lying and she believed him.

16. In his trial affidavit the father says that the allegations made by Ms D and Ms F in 2007 were false. He says that about six months after DHHS became involved DHHS decided to withdraw subject to the mother and father giving undertakings with respect to the children. The undertakings lasted for six months and included ensuring that the children attend all paediatric appointments, allowing the maternal grandmother to monitor the safety and well-being of children and for the mother to attend counselling with respect to risk factors of sexual abuse.

17. At [85] the father says that Ms D and Ms F made allegations against him which he denies. He says that there was a thorough investigation by the police and DHHS. He says that no charges were proven and the father was allowed to see Ms D unsupervised and continued to see Ms D and Ms F. Ms D continued to spend time with him and the mother and later with him and Ms B.

Ms C

1. Ms C also swore an affidavit in support of the mother’s case. She was in a relationship with the father and is the mother of Ms D and Mr E. She says that when Ms D was about seven she told Ms C that her father abused her. The Town G police attended their home. The police told them there was insufficient evidence to proceed further.

2. She says after that Ms D was not the same and that a short time afterwards she disclosed an earlier incident and Ms C again called the police.

3. Ms C was cross-examined. The father’s Counsel suggested to her that she tells Ms D that she made other disclosures and asks her if she remembers them. She denied this and said she does not bring it up at all because Ms D gets really cranky. She then said she did not know how she knows Ms D has forgotten things and said she just can’t remember. When pressed she said she does not know and cannot say whether Ms D has forgotten or not.

4. Ms C denied the suggestion that she told Ms D what to say when she spoke to the police at age seven. She agreed her family lawyer advised her to take Ms D to the police at the time. She said nothing was done as she was told there was not enough evidence.

5. Ms C said that Ms D made the first disclosure when she was seven years old after a contact visit. A few years later Ms D made further allegations that the father sexually abused her when she was three years old.  She said she just told Ms D that she had to go speak to the police but did not discuss it further with her.

6. She denied talking to Ms D frequently about the allegations as she said she did not want to bring them up at all as it would just upset Ms D.  She said the allegations that Ms D made when she was seven and twelve were the main ones. There were other things that she had spoken about that she has since forgotten such as the father putting his hand on her breast as they were walking down the street. Ms C denied telling Ms D that these things happened to her and she denied the allegations being made up.

7. At [10] of her affidavit she says Ms D made further disclosures to her about her father sexually abusing her but that Ms D doesn’t remember them. She believes her daughter. The chronology set out in Exhibit A by Ms L refers to Ms D making disclosures in 2002 when she was seven years old, and in 2004 when she was eight and half years old disclosing remembering abuse when she was three years old. Ms D made further disclosures in August 2007.

8. Ms C said that at that stage she did not want the children to see the father because she thought the children were at risk. She said before the allegations everything had been running smoothly and she was happy the consent orders were in place for some time.

9. She denied being upset when the father left her for the mother.  She said she had met her husband and there was no jealousy or anger on her part.  She has now been together with her husband for 17 years.

10. Ms C agreed that Ms D continued to spend time with her father until she was aged 12. She further agreed that Ms D wanted to live with the father’s partner, Ms B, when she was 16 after falling out with Ms C. She said that Ms D did not want to follow the household rules and Ms D was engaging in rebellious behaviours at that time and she did not know how to be patient with her. She agreed that Ms D lived with Ms B for about two years.

11. Counsel for the ICL cross-examined Ms C. Ms C agreed that Ms D is close to [Y] and said that she has always allowed both Ms D and Mr E to see them whenever they want. She says that Ms D mentions to her that she goes around to the mother’s home.

12. In re-examination by the mother’s Counsel, Ms C was asked about the disclosure when Ms D was seven. She said she had a strange feeling when Ms D came back from contact with her father. Ms D’s face was white and after the father left she asked how things went and that is when Ms D told her that her father touched her private parts and made her touch his private parts.

Ms F

1. In 2007 the father’s niece Ms F made allegations that the father sexually abused her. In exhibit F, which is the DHHS updated and amended s67Z response dated 24 October 2018, DHHS says they received a report in August 2007 that Ms F made disclosures at school about her uncle (the father) sexually abusing her. She participated in a Video and Recorded Evidence (“VARE”) interview and disclosed that the father fondled her breasts and touched her vagina. The police did not authorise the brief because of her intellectual disability and difficulties associated with her giving evidence.

2. The mother says she was present with the father during police interviews with respect to Ms F.  She said the police told them that there was insufficient evidence to proceed with any charges as Ms F had an intellectual disability and would not be able to give evidence.

3. The father was cross-examined about Ms F. The father agreed that Ms F lived with him for a period.  He said he could not remember being her carer and receiving Centrelink benefits for her. He further agreed that Ms F was a similar age to Ms D.  He further agreed that she made allegations against him that he kissed her and told her she was sexy in 2012. The father denied that.  He agreed he was interviewed by police and that nothing further happened.

Ms M

1. Ms M made a report in 2013 alleging that the father digitally and peniley penetrated her. She said she did not remember until she saw him years later and the memories returned.

2. The mother’s Counsel cross-examined the father about his relationship with Ms M. He agreed that at the time he was in a relationship with Ms C he had a brief sexual relationship with Ms N, who is Ms M’s mother. He said he thought he stayed with Ms N for a brief period.  He agreed that he had a sexual relationship with Ms N between January 1995 and the end of 1996.  He further agreed that Ms M made a complaint against him and he was interviewed by police.

3. Ms M complains that when she was five or six the father pulled down his pants and showed her his penis.  She got scared.  The father put his hand over her mouth. She made another allegation that he placed her finger on his penis. Ms M said that when she saw the father as an adult it brought back the memories. The father agreed that he was charged with four counts of rape and was committed to trial but the charges were withdrawn in June 2016.  The father agreed that his case is that none of those things happened.

CASA

1. DHHS referred the mother to CASA for counselling and safety planning in 2007.

2. The mother says she referred herself and the children for counselling at CASA in 2010.  She says she did not fully engage in counselling in 2007 as she was dismissive of the allegations against the father.  In 2010 she became concerned because [X] was displaying sexualised behaviour at school. The mother says in 2010 and 2011 she referred herself and [Y] for further counselling. After the written recommendations made by the family report writer she again referred herself and her children in 2018 at the time of the trial and was waiting for an appointment.

3. The mother also attended counselling regularly with Region 1 Health Service in 2018 to help her deal with the stress of the court proceedings and the possibility of the father spending unsupervised time with the children.

Dr K

1. Dr K prepared a psychological assessment of the mother. He was not required for cross-examination.

2. Dr K found that the mother has no psychological difficulties and has sought appropriate counselling to deal with the stress of the family law proceedings.

Concerns about the mother influencing the children

1. In her trial affidavit the mother says she has tried to shield the children. She says that she did not tell the children about these proceedings until a week before the family report interviews. She says she did not tell them about the sexual abuse allegations or the father being on the Sexual Offenders Register.

2. The mother says that soon after telling them that they needed to attend family report interviews the children told the mother that Ms D had told them about the allegations and the register. The mother says that afterwards the children told her that Ms D told them about the sexual abuse allegations and the fact that the father is on the Sexual Offenders Register. The mother says she had told Ms D not to talk to the children about this.

3. The mother also says that [X] has told her he wants to spend unsupervised time at the father’s home and has told her that it is her fault and that she is stopping him from seeing his father.

1. One of the controversial parts of the family report was with respect to the children’s knowledge of the conviction and allegations made against the father.  At [68] of the family report the mother initially said that the children found out about the conviction and accusations but later admitted that she had told the children as they needed to know what was happening given the matter was returning to Court and it was likely the children were to be interviewed.  She also said that the children had been asking why they could not spend unsupervised time with their father.

2. The report writer records at [69] that the mother admitted to her that she told [X] that the father used to smack him in the head for no reason as [X] had asked what the father had been like and if the father hurt him in the same way he had hurt [Y].  The mother then acknowledged that [X] would like to spend alternate weekends with the father including overnights and that the mother did not see a significant risk to [X] as the father appears to only be sexually interested in young girls and not young boys.  She also felt that if something happened, [X] was able to protect himself now being as tall as the father.  The mother also told the family report writer that [X] had told her that if the father did anything to [Y] he would fight him.  The mother told the family report writer that [Y] also wanted to spend time with the father but did not want to spend overnight time and that she feels comfortable with her father as long as there is a responsible adult present.

3. The father’s Counsel cross-examined the mother about these statements. The mother said that the children knew about the allegations. She said she did not tell the children about the allegations and the convictions. She says the family report writer got that wrong. The mother said the children found out from Ms D and that is what she told the family report writer.

4. The mother also denied telling the family report writer that she told [X] his father hit him. The mother denied telling [Y] things about her father and denied telling her about the sexual abuse allegations against Ms D and Ms F. She says the family report writer had it wrong when she records at [109] [Y] saying her mother told her that her father was unsafe.

5. The mother agreed with the proposition from Counsel for the father that she understands [X] wants to see his father. She does not see [X] as being at a sexual risk from his father. She has a close relationship with him and agrees that he would tell her if he had a problem. The mother said she did not think it would be fair if one child saw the father and not the other. She was unable to say fair to whom.

6. The mother denied telling the children about the allegations in order to influence the family report.

The father’s evidence

1. The father’s Counsel cross-examined the father in relation to his relationship with the mother. The father denied having sex with her when she was 13. He says she was 15 and they started to do things when she was 14. When it was put to him that the mother’s case is that he put his finger in her when she was 13, he denied it. The father attached the police summary to his own affidavit.  He was taken to parts of that statement.  The statement says that the offending took place when the mother was between 13 and 15 years old.  He said he thought he had corrected that. The father conceded that he accepted the summary as correct when it was read out in court and that he had annexed the statement to his affidavit.

2. The father agreed that now he is saying that the sexual relationship did not begin until the mother was 15. He conceded that he pleaded guilty to the charges.

3. When the mother’s Counsel started to ask the father about his relationship with the mother when she was 13 to 16, the father corrected her and said she was 14 to 16. The mother’s Counsel then asked him if that that makes a difference to him. The father replied that he knows what she is saying, but he was just correcting her statement. He then conceded that when he pled guilty he was accepting the mother’s evidence.

4. The father gave the impression of trying to minimise the seriousness and extent of the inappropriateness of his relationship with the mother by emphasising that she was older when they started having sex. He was inconsistent about this. My observation is that it makes little difference whether she was 13, 14 or even 15. He was significantly older and was the father of two young children.

5. In reply to Counsel for the mother’s suggestion that if the father thought the mother was lying he would have fought the charges, he said if he had tried to fight the sentence could have been worse.

6. The father agreed that when Ms D made the allegations in 2007 the mother took his side, and that after they separated the mother allowed him to have unsupervised time with [X] and [Y].

7. Following on from that, Counsel for the mother asked the father how he could say that the mother lied about him from the minute they broke up and suggested that if she had been making up lies she would have done this from 2009 when they broke up. The father replied that he was not too sure.

8. The father conceded that the mother drives the children the 100 kilometres to spend time with him and further agreed that she is on a low income. He then said that he sometimes pays for fuel.

9. The father said that after [Y] made allegations and DHHS became involved he did not agree that he was a risk to [Y] but agreed to supervision as at least then he got to see the children.

10. The father said the mother is lying about [Y] saying that the father has touched her.

11. The father agreed that his brother Mr O is also known as Mr O. He changed his name years ago. The father said he had heard that he had been charged with sexual assault. He does not have a relationship with him.

12. The mother’s Counsel suggested to the father that he told Mr J that the mother and Ms D are part of a plot against him. He did not remember saying that but agreed he believed that and still does. He also believes Ms C is part of that and does not believe that Ms C has moved on.

13. The father agreed that five females have made sexual abuse allegations against him. He further agreed that his position is that all of them, except for the mother, are lying. The father said that Ms C has “had it in for me for years”.

14. The father agreed that he has not seen Ms D for five years. He agreed that he does not see Mr E either.

15. The father said he did not think he was notified that Ms D and Ms F were paid compensation from the Victims of Crime Assistance Tribunal but was not 100% sure. He said he had no idea of how they were able to get compensation for false allegations.

16. In his trial affidavit the father outlines several concerns he has about what the family report writer records about the children’s comments to her.

17. At [90] the father says that ultimately he would like to spend time with the children in accordance with the orders made on 20 July 2011. He goes on to say “I am however mindful of the impact of the disclosures and accusations against me made by Ms Flemming [“the mother”], possibly Ms D and others on the children.” He accepts that his time would have been increased incrementally. The father says he has accepted responsibility for the inappropriate relationship and is not an unacceptable risk to the children.

18. When the ICL’s Counsel cross-examined the father he agreed that his position is that he is the only one who is telling the truth. He was asked if DHHS was wrong when they required supervision. He said that they were wrong but if he did not agree to it they would not let him see his children.

19. The father proposes that if the Court requires that his time continue to be supervised that his wife be the supervisor.

20. He says if the Court orders that he spend supervised time with the children his view is that it is better than not seeing the children at all.

21. He agreed that his wife is a good support for him and she believes he is telling the truth.

22. At [86] the father says all of Ms B’s family and friends know about his criminal records and the allegations against him. He does not provide any detail about what exactly they know about this. He simply says that they are supportive of him and have not raised any concerns.

23. The father says DHHS has intervened twice in the past year because of his reporting obligations, first when he reported he was having contact with Ms B’s new grandchild and later when he reported having contact with Ms P’s children. Ms P is a friend of Ms B.

24. He does not know of anyone else who could supervise his time. He does not know the costs of private professional supervision.

Ms B

1. Ms B swore an affidavit in support of the father. She commenced a relationship with the father in 2010. They married on … 2014. They did not move in together until they married.

2. She has four adult children who all live in Town A. She also has three grandchildren, [U], aged 5, [V] aged 18 months and [W] aged 2 months. Her daughter Ms Q is expecting her first child.

3. She meet [X] and [Y] a few times when she and the father were dating in 2010. More recently she has seen the children at some of the supervised visits. She also met Mr E and Ms D during the early days of her relationship with the father. She says they were spending regular time with their father at that time too. She says she became close to Ms D, as she often visited, and Ms D stayed with her frequently for two years.

4. Ms B says she is aware of the father’s criminal convictions and is “fully aware” of the allegations against him. She is also aware of the charges for breaching his reporting obligations. She says those charges related to an incident where she and the father agreed to look after her friend Ms P’s three children. She says Ms P was “fully aware” of the father’s history and had no concerns. She says her grandson [U] was also living with them at the time. She was unexpectedly called into work. She says she called Ms P to ask if she was concerned if the father looked after her children on his own. She says she understands that by coincidence the police conducted a home visit. The father had reported [U] living with them but not his contact with Ms P’s children. She says that she and the father were of the mistaken belief that he only had to report regular contact with children but they now understand that this is wrong.

5. When the father was placed on the Sex Offender’s Register they were living together with two of her children and her grandson [U]. DHHS investigated and permitted those living arrangements to continue. All of her children have since moved out. She and the father regularly see her children and grandchildren and often mind her grandchildren. She says her children are “fully aware” of the criminal charges and allegations.

6. Her children get along well with the father and do not hold concerns about him.

7. The mother annexes Facebook messages between herself and Ms B to her affidavit. In those messages she contacted the mother saying that there were some things the father tells her that do not add up and she wanted to ask her a couple of questions. She asked the mother how old she was when they got together and said “I honestly don’t know [sic] what to do anymore! I just need something [sic] that is going to help me make my mind up on what I should be doing.” The mother replied telling her that she was 13 when they had sex. She says the police told her that what the father did to her is grooming. She then asked Ms B what the father had done and why she was questioning it now.

8. Ms B replied that nothing had happened and she never put her children or anyone else’s in danger. She said that “things were running through her head” and [U] was not allowed around the father because of something that happened with Ms F years ago which she had not heard about before.  She talked about her love for her grandchildren and that the thought of losing them would kill her and she was hoping that the mother could clarify what happened with Ms F. She also said that the father told her that the mother was 15 or 16 when they had sex.

9. The mother replied that the father was saying she was 15 to “save his own ass, but I know how old I was, you don’t forget your first time like that.” She went on to say that from the court documents she read that Ms F’s allegations were similar to Ms D’s but not as bad. Apparently he tried again when she was 18 and living with him. The mother then said that, as she had confirmed before, the father is a good liar and a manipulator.

10. Their conversation continued with Ms B referring to feeling stuck and helpless and she said that she did not know what to do. She said she told the father that if there is “any truth to any of it” he should walk away so she can enjoy her grandchildren. She asked the mother not to use this against her. Ms B said that she has so many mixed emotions as her children are having babies whom she loves so much. She said she needed proof as that would make it so much easier but that no one can give her answers. The mother told her that there will never be any proof but that if her gut is telling her that something is wrong then it probably is. The mother said she believes Ms D and Ms F. She also said that as she was so young at the time she did not realise until she was much older and thought back about that time and realised that things were not right. Ms B asked for more details. The mother said she saw things while the mother and father were in a relationship. Ms B again asked her for further details. The mother says that when they were in a relationship she saw things or walked in on things that did not seem right with Ms D and Ms F. The mother said it “wasn’t until I was older that I looked back on things and realised they were [sic] actually made sense with the things the 2 girls were saying was happening.”

11. In her affidavit Ms B said that when she contacted the mother it was not because she had doubts about the father but that she was trying to make sense of the different stories she had heard over the years. “There are have been so many rumours and allegations thrown around that things have never made sense to me.” She does not give any further detail than this. She goes on to say that they did not exchange many messages and she deleted them soon afterwards. She does not say anything further about the messages.

12. The mother’s Counsel cross-examined Ms B about this. She said that she really contacted the mother for peace of mind. She wanted to clarify things and make sure the children were okay. She said she had heard different stories from other people about Ms D and Ms F.

13. The mother’s Counsel suggested that she asked the mother because she thought she would tell the truth. Ms B replied that she did not just ask the mother.

14. She agreed that the mother told her the father was manipulative. She said she does not believe that. She also said that as she was not there and children are involved she wanted to make sure for her grandchildren’s sake. She contacted the mother not long after she had left her grandchildren with the father and DHHS had become involved. She then said that her son was also with the father when she left the children.

15. Ms B denied that the mother said she was 13 when they had sex until she was faced with the Facebook message. She conceded that she knew about Ms M and agreed that there are a lot of women who have made allegations against the father.

16. She agreed that her position now is that she is not concerned about the father. At that time she sent those Facebook messages her life was a mess, DHHS was involved and she was distressed. She said that it was not just the father’s word that she needed.

17. Ms B was asked how she will supervise the children if she is asleep. She replied that they would all be asleep. She also said that the children were old enough to speak up if the father did anything.

18. The mother’s Counsel asked Ms B if she thought the mother was a liar. She replied asking why the mother stood by him all those years ago and not now. This shows a lack of appreciation of the mother’s age at the time of those allegations. The mother gave him the benefit of the doubt when his own daughter made a disclosure.

19. She was then asked if she thought the mother was making it up. She replied “Definitely. They all are”. She said is it not true that Ms D was never left alone with her father. She said she has read things she knows are not true and has spoken to several people, including other nieces of the father, as she will not be told a story and just believe it.

20. The mother opposes the father’s wife supervising the children’s time.  The mother says Ms B is hostile towards her.

21. The mother does not have faith that Ms B will comply with court orders and is concerned about her leaving young children in the father’s unsupervised care.

Breaches of the father’s obligations under the sex offender register

1. As a result of the father’s convictions the father was charged with breaching his reporting obligations under the Sex Offender Registration Act 2004. The father pled guilty on 28 September 2015. He was convicted and was fined $250.

2. The father was charged with two further charges on 21 January 2016. He pled guilty on 15 March 2016 and was fined $600.

3. The father says his breaches were inadvertent as he was not aware that the reporting obligations for those on the Sex Offender Register changed on 1 June 2015.

4. These breaches were also a breach of the suspended sentence. He says on 3 August 2016 the County Court found that breach proved but held there were exceptional circumstances and did not make any further orders.

Town A children’s contact centre

1. Since 2 August 2015 the children have spent supervised time with the father at Town A Children’s Contact Service (“the Centre”).  The mother has no concerns about the time that has taken place at the Centre. The Centre was not able to accommodate fortnightly time. Initially the father had monthly time. This was then reduced to four times a year.  The Centre indicated that they can only provide identity visits up to four times a year moving forward. It may not be as frequently as four times a year depending on competing needs of other families.

2. Ms R, a team leader at the Centre, swore an affidavit on 31 January 2017, filed 1 February 2017 and annexed supervised contact reports dated 23 June 2016 and 30 January 2017.

3. The last page of the second report indicates that over the 18 month period from 2 August 2015 to 14 January 2017 there were 14 supervised visits.  The visits have progressed to taking place off-site with the father’s wife also being present.

4. Ms R was not required for cross-examination.  All parties agree that the supervised reports are positive with no concerns raised about the father’s conduct.  The visits are positive with the children enjoying time with the father.

Mr S

1. Mr S carried out a psychosexual assessment of the father. He records that the father told him that when he appeared in the County Court for the offences against the mother there was no pre-sentence report and he was not ordered to participate in a sex offender program and has never done so.

2. He records at [27] that the standard best practice approach is to ignore any charges that did not proceed to court, for whatever reason, when conducting a formal sexual risk offence. He records the father told him that he did not have sexual contact with the mother before she was post-pubescent and that this would indicate that he would not be diagnosed as a paedophile but as a hebephile (someone who has sexual contact with a person who is post-pubescent but under legal age).

3. In addition to the interview he administered the Static-99R actuarial assessment tool and the RSVP (Risk for Sexual Violence Protocol).  He stated that when considering the RSVP it is important to note that the four convictions relate to the same victim but also occurs in the context where, whilst the sexual relationship began whilst the mother was underage, they went on to marry and have children.  He also thought it was significant that the mother did not report these matters to the police until June 2012.  He also stated that it was significant that the breaches of the Sex Offender Register did not consist of further sexual offending by the father.

1. At [32] he observed that in accordance with the definition of the first domain of the RSVP there was evidence of chronic escalation of sexual offending and of physical and psychological coercion, breach of trust and abuse of power but that this had to be seen in the context of the maternal grandmother becoming aware of the sexual relationship and not taking steps to intervene prior to the mother turning 16.  The second domain is concerned with psychological adjustment.  He did not find any evidence of attitudes condoning sexual offending or having a sense of sexual entitlement.  The father acknowledged that the mother was not legally able to consent and he was responsible, although he says in reality there was consent and says that this was not challenged by the prosecution. He said:

   In my opinion, at interview he did not present with problems with self-awareness, though in my opinion he did have problems with self-awareness at the time of the offending and had clearly underestimated the consequences for him in terms of having sexual contact with an underage person, albeit with someone who he subsequently married. 

2. The father does not have a history of childhood sexual abuse or childhood physical or emotional abuse.  Mr S did not diagnose that the father was suffering from any major mental illness but noted there was a limited recent history of suicidal ideation.

3. The father told him that if he had been directed to participate in a treatment program he would have done so, not because he believes he has ever been sexually attracted to underage females but rather as a way of showing his feelings of guilt and remorse.  He then discussed the breaches of the Sex Offender Register and formed the opinion that the breaches based on his experience should be seen as minor and that was reflected in the penalties that were imposed on him.

4. Mr S expressed the view that the father’s offending was “clinically described as situational offending and, by definition, many offenders who commit this sort of offending never reoffend.”  He says that the father did not need to engage in any offence specific treatment.  He assessed him as being below average risk for further sexual offending and believed that the father was genuinely traumatised by being charged and had “now learned his lesson”.

5. Much of Mr S’s work is forensic work in the criminal area. He does some in the family law area.  When cross-examined, he explained the RSVP tool. It addresses 22 special risk factors with respect to criminal offending.  The Static 99 tool primarily relates to risk for criminal offending. He agreed that from a clinical perspective the father’s convictions are mitigated because they relate to the same person and he married that person. From a clinical perspective it is situational offending.

6. Mr S said he was not aware that this court is not focused on criminal convictions but whether or not there is an unacceptable risk to the children. He is aware that child protection workers have a different emphasis. The material with respect to allegations of abuse of his daughter form part of the background. The allegations do not affect the tests administered. The Static 99R test only relates to convictions. Mr S said the father’s brother also being a registered sex offender is not relevant. Mr S said he would have been interested to know that the father’s mother’s partner is a sex offender but that would not have changed his assessment. Of course, what must be acknowledged is that the task Mr S was asked to carry out is a psycho-sexual risk assessment, which is what he did.

The Family Report Writer

1. The family report writer briefly identifies the risk factors as being:

   RISK FACTORS

   Family Violence and Abuse

   28. Ms Flemming accused Mr Orban of aggressive, manipulative and controlling behaviours throughout their relationship. She remains fearful of him.

   Child Safety and Wellbeing

   29. The potential for the children to be exposed, directly or indirectly to sexual abuse by Mr Orban.

   Alcohol and Substance Use

   30. No risk identified.

   Mental Health

   31. Ms Flemming may be suffering from anxiety, preventing her from being able to trust easily.

   ISSUES IN DISPUTE AND ISSUES IDENTIFIED DURING ASSESSMENT

   32. Issues identified by the parents:

   ·     Whether Ms Flemming should have sole parental responsibility for the children or if that responsibility should be equally shared between the parents.

   ·     Whether the children’s time with Mr Orban, if any, should be supervised, and if so, by whom.

   33. Issues identified by the Family Consultant:

   a)  The impact upon the children of them being informed of Mr Orban’s conviction and the allegations made against him of sexual abuse of minors.

2. The family report writer describes the mother as “timid and lacking assertiveness”.  The mother told her that as a result of the father’s abuse of her she has trouble trusting people and admitted that she may be overprotective of the children with new people.

3. The family report writer describes the father as initially defensive and was hurt and frustrated that allegations have been made against him that were preventing him from having a meaningful relationship with his children.  She said “he did not appear to have a very sophisticated understanding of the paedophilia.”

4. At [8] the family report writer records that the parties commenced a sexual relationship when the mother was 14 or 15 years old.  At [44] the family report writer records the father telling her that he was aware that the mother was underage, being 15, but he justified continuing the relationship with her as she would be turning 16 the following year and also said that as there was a 16 year age gap between his parents he did not think that was unusual.  He now says that his relationship with her “wasn’t the smartest thing”.  When pressed by the family report writer he said that being in a relationship with someone so young and somewhat younger than him may have deprived the mother of her childhood.  He says he regrets the relationship but not having the children.

5. The father described himself as a victim and significantly at [46] the father says that the mother “knew what she was doing, she had a choice.”

6. The mother told the family report writer that at the time of dealing with the police with respect to [Y]’s disclosures the police had helped her to understand that the age difference between them and her age at the commencement of the relationship meant that the father had manipulated her and should have known better and that the relationship was wrong.

7. The father told the family report writer that he did not know why the mother had pressed charges when she did.  At [50] the family report writer records the father telling her that he was aware that [Y] had made allegations against him and that both he and [Y] been interviewed by DHHS.  He said DHHS required his time to be supervised and had determined that he had picked up [Y] in the wrong manner and that after a period of supervision his time returned to unsupervised.

8. With respect to the allegations made by Ms D, the father told the family report writer that he separated from Ms D’s mother when the children were two and three years old and that she had been very unhappy about his ending their relationship. He said she threatened to make his life hell.  The father said he spent time with Ms D on alternate weekends and holidays and for a period Ms D was virtually living with him.  He said they were very close but Ms D stopped contact with him after getting into a relationship with a controlling man who he believes is not allowing Ms D to see him.

9. The father said that Ms D had told other people that the father had raped her but then had questioned herself as to whether had it happened or was in her mind. The father also said that she had made accusations of her boyfriend raping her so that he would get beaten up and had done a similar thing to a boy at her school. Ms D was not cross-examined about that allegation. He denied ever sexually assaulting Ms D and said he could not understand why she made the allegations against him and assumed that Ms D was being influenced by her mother, Ms C, who was trying to get revenge on him for leaving her.  He said that Ms C had made false allegations against him, including that he had followed a child home.  The father said he consented to an intervention order without admissions with respect to that child. He also thinks that Ms C has influenced Mr E against him. 

10. With respect to the allegations about Ms M, he said that when he was still in a relationship with the mother he made the mistake of sleeping with his cousin Ms N, who is Ms M’s mother.  He said that years later the police told him that Ms N had made allegations that he had sexually abused Ms M which he vehemently denied.  He accused Ms N and Ms M of being drug users.

11. The father also denied the sexual abuse allegations by Ms F.  The mother says that the father had looked at Ms F through the bathroom door while she was bathing and had touched her inappropriately but that as she suffers from a learning disability the police could not gather sufficient evidence to have the father charged.  The father said that Ms F and Ms D were good friends and that they both made allegations of him sexually abusing them at the same time.  He said the police dismissed the allegations as their statements were almost identical.

12. The family report writer noted that the father gave alternate explanations for those allegations. He thought Ms D may have been motivated by the acrimony between him and her mother, Ms C, and also implied that Ms D and Ms F may have conspired to make up the allegations.

13. The father told the family report writer that both children want time with him and that [X] had told him several times that he wants to live with him.

14. The father says that if supervision is required his wife would be appropriate having had her own children and having young grandchildren without DHHS being involved with any of them[2]. He said that he would not be able to afford private supervision.

    [2] The case note prepared by Ms T suggests that DHHS has been involved with Ms B and her children in the past, but no party raised this as issue during the hearing.

15. The mother told the family report writer that she did not believe that the father’s wife would be an appropriate supervisor as she had previously stated that she did not believe the charges and the accusations against the father and also referred to the father’s wife contacting her via Facebook asking her about the allegations and that she was expressing some doubts about the father in that some things he told her did not add up.  The Facebook messages that the mother annexes to her affidavit are consistent with this.

16. The mother expressed concern to the family report writer that [Y] is in the age bracket of the girls that the father likes being between five and 14 years old. She also said that both children are in regular contact with Ms D and Mr E.  The mother said that [Y] had asked Ms D about her allegations against the father and that may have contributed to [Y]’s lack of trust of the father and men generally.

17. The mother told the family report writer that the children had attended CASA for counselling and developing a safety plan when they were six or seven years old and that despite this the mother does not know how to properly prepare the children for the risk if they spend unsupervised time with the father.  The mother does not trust the father. If the father is to spend unsupervised time with the children she felt she could only support [Y] having day time visits if [Y] had her phone with her and that she may feel more comfortable if there were some sort of safety measures put in place.

18. The family report writer described [X] as assertive and confident but appeared to be somewhat emotionally immature and that given this his interview should be considered but not given significant weight.  The family report writer expressed the view that his views appear to have been significantly influenced by the mother.  [X] told the family report writer that he enjoyed spending time with the father and that he understood that he spends time with the father at a contact centre because “he’s a bad person” and that he “touches girls in the wrong spots”.  He understood that the father had done that to Ms D and he is pretty sure that his mother told him that he tried to do it to [Y].  [X] said he wished that his father was a normal father because if he was then his parents would still be together.  Despite his understanding of these issues he wants to spend overnights at the father’s home without supervision and wants to be able to go out and do things with his father.  He thought the father’s wife seemed nice and said that he would defend [Y] if the father did “something like that” to her.  He said he would be angry if the father did anything to [Y]. He thought that the chances of the father doing something was low but that it would be best if his wife was present at all times.

19. [X] told the family report writer that the mother had told him what the father had done and that [Y] was worried that the father might ‘do it again’ and so [X] thought that [Y] probably would not want to spend overnights with her father.  [X] also said that his mother told him that the father would punch holes in the wall next to her and throw things when he got angry. [X] said that his temper is similar to his father’s but he is learning to control his temper better.

20. [X] said that they see Ms D and Mr E regularly and that he likes playing Xbox with Mr E and going for drives with him.  He said he thought that Mr E hates his father because he knows what his father did to Ms D.  He does not talk about his father when spending time with Mr E.  [X] said that Ms D spends a lot of time with [Y] and that he does not know what Ms D thinks about the father.  [X] wished that the father would stop doing naughty things and was worried that if he continues that he might go to jail and then he and [Y] wouldn’t be able to see him.

21. The family report writer also describes [Y] as assertive, confident and very clear in her views. The report writer felt that given her age and stage of development she was not able to adequately assess the implications of the spend time with arrangements.  The family report writer was also of the view that she had been heavily influenced by her mother and that this influence had contributed to significant anxiety levels in [Y].  She said that whilst [Y]’s views should be inevitably considered that they should not be given significant weight given these factors.

22. [Y] told the family report writer she enjoyed spending time with her father at the contact centre but was very clear that she could not spend unsupervised time with him because he is unsafe and is a paedophile.  She said that her mother had explained to her that her father touches girls under 18 and that [Y] thinks he is still doing so because he has not changed much since her parents were together.  She did not think that the father had touched her inappropriately but had touched her mother and Ms D that way and that he had started dating her mother when she was 13 years old.  [Y] also said that the father had told her that he has a bad memory but her mother said that he was probably lying so that he can say he does not remember if he does something wrong so he can get out of going to jail.  She said she does not feel safe around her father unless there are other people there.  She does not want to go to the father’s home even if his wife is there and said that her mother had told her that as Ms B is the father’s wife she trusts him and one time Ms B left the father alone with five little girls.  Despite this, [Y] said she wanted to continue to see her father at the contact centre but was aware that the contact centre was not going to be able to provide that service indefinitely.

23. [Y] said she did not want to spend overnight time with the father even if a supervisor was there because her mother told her that the father had found ways to get to Ms D whilst she was asleep.  [Y] thought it would be okay for [X] spend overnights with the father as the father is only interested in girls.

24. In her report the family report writer was quite critical of the mother but did not appear to challenge the father when he made concerning comments which revealed he had an attitude of victim blaming. She is critical of the mother because of the amount of knowledge the children have about the father’s convictions and the allegations against him.

25. When cross-examined about this the family report writer said “I’m not sure that I would use the word ‘influence’.  I think the mother had spoken to the children in ways that had the potential to leave them distressed.”  When further cross examined she considered that she was not clear on what information the mother gave them.  She also conceded that it was not surprising that the mother continued to have serious safety concerns for the children due to the allegations of sexual offences against [Y] and other children.  She agreed that the children would have picked up on the mother’s concerns whether intentionally or inadvertently.

26. Further to this, as I indicated during cross examination of the family report writer, it is the reality for these children that they have been spending supervised time at a contact centre with their father for some years. They are at ages where they would be aware just from talking to their friends and seeing their friends that this is not a normal situation and that there is something unsafe about their father.  The family report writer continued to say that it was clear from what the children said to her that they had been made aware through Ms D or through their mother or whatever source that the father was unsafe due to having sexually abused children. She remained of the view that the children have been told too much and that they are confused.

27. The family report writer also had to concede when it was put to her that given the children that had counselling with CASA that would also involve discussing why they are having supervised time with their father.  The family report writer said she is critical of the mother because assuming that what the children told her was correct the way she had spoken to them and the impression she had given them was inappropriate.  [X] told her “he’s a bad person” and that his mother had told him that the father was paedophile, in that the father “touches girls in the wrong spots”. The family report writer said that a better way of telling the children would be to say their father done something that a judge was not happy with.  [Y] also use the word paedophile.  The family report writer said that [Y] told her that her mother used that word.

28. At [150]  to [154] she says the following:

    Ms Flemming clearly admitted to telling the children about Ms B’s convictions and the further allegations that had been made against him. It does not appear that Ms Flemming sought professional assistance when making those disclosures to the children. Given the children’s comments, it would seem that Ms Flemming had described Mr Orban’s offenses and alleged offences in more detail and/or in a way than may not have been age appropriate for them at that time. To ensure the children’s safety, Ms Flemming needed to say no more than Mr Orban had been told by a Judge that he had ‘done some naughty things and that he should not do any more naughty things in the future’. Particularly so given that his only conviction was associated with what became a marriage between her and Mr Orban. Ms Flemming admitted that, until her concerns regarding Mr Orban behaving inappropriately towards [Y], she had not considered Mr Orban’s relationship with her a matter to be brought before the Courts. Whilst the relationship between them was clearly inappropriate given Ms Flemming’s age at the commencement of their relationship and the age difference between them, Mr S did not see Mr Orban’s actions at that time as indicative of further significant risk.

    It appears that Ms Flemming did not explain to the children that the Judge did not assess that Mr Orban’s behaviours were serious enough for him to be sent to jail, unless he did them again. It appears that Ms Flemming’s explanation to the children has left them with a somewhat skewed understanding of the level of risk that Mr Orban poses to them.

    It may have been entirely inappropriate for Ms Flemming to mention any of the other unproven allegations made against Mr Orban, to the children.

    Given that it has been assessed that Mr Orban poses minimal or no risk to the children, it will be necessary to assist the children, particularly [Y], to understand that assessment. It is unfortunate that the children had been informed of Mr Orban’s sexual offending history, along with unproven allegations of sexual offending, in such a way as to convince them that their safety may be at risk if they spend time with him unsupervised.

    Ms Flemming commented that [Y] first stated her fear of Mr Orban and men in general, after their home had been broken into several times. Such invasions would contribute to anxiety in any victim, let alone a vulnerable child. Without knowing the perpetrators of those break ins, it could have been difficult for [Y] to find a focus for her fear. Children innately try to make sense of the world and look for explanations that account for their feelings. If the explanations are not readily clear, they will look for whatever available explanations that could account for their feelings. It is not surprising that, when combined with Ms Flemming’s disclosures around Mr Orban, Ms Flemming may have added her anxiety about feeling unsafe in her own home to her mother’s apparent virtual insistence that she should fear Mr Orban.

1. [V]’s mother said that the father does not have much contact with him because she does not let [V] out of her sight. When asked, she did say that there has been once or twice when she has gone out into the backyard to hang up clothes and the father has been inside with him and the father did look after him once when she was unwell, but that she does not believe that the father would do anything.  She then said that the father is really helpful with respect to [U] and often takes him home for the day. She said [U] loves going there and loves spending time with the father and would rather be with him than at home.  The father also takes [U] to Town G to where his mother lives.  [V]’s mother then said she did not know anything about the father’s convictions until they recently told her that child protection would be attending.  Ms T expressed her concern that DHHS’ knowledge of offenders is that they will often make themselves very helpful to parents and end up caring for children, start spoiling them and making them feel special. She told [V]’s mother that what is being described is a classic example.  She also said that even if the father is not doing anything, he may be taking [U] to another sex offender who is interested in boys.  She also explained that although the other allegations did not proceed to trial, the allegations were significant and that she was involved in interviewing the victim with an intellectual disability. She told [V]’s mother that she believed what the victim said was true but she could not manage the police interview.  [V]’s mother said she really likes the father and trusted him. 

2. She then interviewed [U] and [V]’s father with [V]’s mother.  She explained DHHS’ role and the concern about the amount of time the father spends with the children, particularly [U].  [U] and [V]’s father replied that the father has not had overnight time with [U] in a couple of months. Ms T explained that sexual abuse can happen at any time, not just at night, and also explained that sexual offenders can change their gender preferences.  She again explained that sex offenders are very good at manipulating families and grooming children and making themselves very helpful to the parents.  [U] and [V]’s father said that he went to court with the father, that the father told them what had happened and how the mother threatened to get him into trouble if he left her.  Ms T expressed concern that they did not seem to understand the risk their children are at because they see the father as being nice and helpful.

3. Ms T then told them that if DHHS received a report that the father is alone with the children it is likely that the children would be placed out of their care. She then told them that DHHS would rather work with them and provide education and information they need to be able to protect their children. 

4. Ms T also interviewed [U]’s mother separately.

5. She recorded in her notes that the previous assessments with respect to the father did not include the concerns about the father being accused of sexual abuse by other young people.  She noted that the father’s daughter and niece made very clear disclosures but were not able to cope with the police interview process.

6. Ms T interviewed Ms B, who accused her of having made her mind about the father and having a personal agenda accusing the father of things he did not do.  Ms T explained that her opinions were based on her interviews, the education she had received and her knowledge of behaviours of sexual offenders.  Ms B accused her of making her choose between her husband and grandchildren.  Ms T assured her that she was not but that she wanted to ensure that Ms B made an informed decision and that she was protecting her grandchildren.  Ms B indicated that she been through this before and spoke about having to deal with constant doubts on whether or not it was the right thing that she decided to marry the father.  At the time of the interviews [V] was five months old and [U] was four years and eight months.  [U] had some special needs as his speech was indistinguishable and he needs speech therapy.

7. The case note summary of these interviews does not give the impression that Ms B’s extended family were “fully aware” of the nature of the father’s offending and the allegations at that time.

8. In her case note Ms T records that Ms B had told her that she had been the victim of sexual abuse.  She had been in a violent relationship previously and has a child protection history involving her own children with respect to poor parenting, lack of adequate nutrition, lack of routine and mental health issues.

9. Exhibit C is the subpoenaed inspection notes of DHHS file. It records that CASA has worked extensively with Ms D and has no doubts that she was seriously abused and Ms D has concerns about the younger children.                

10. Ms T was cross-examined briefly. She was not involved in any investigation or interviews concerning [X] and [Y].  She said she knows that there is more than one sexual offender the father is involved with. They are in a circle of acquaintances. The only child she is concerned about the father grooming is [U]. 

Written submissions of the parties

The mother’s submissions

1. The mother submits that the children are at an unacceptable risk of harm by the father which can only be ameliorated by contact being supervised by the Town A Children’s Contact Centre.  The risk of harm relates to sexual abuse and psychological abuse.

2. The mother further submits that she has no confidence that Ms B would act against the father and stop time if there were protective concerns.  She refers to the fact that she has left young children in the father’s care and has also had the father drive one of her young grandchildren on his own to Town G about 100 kilometres away.

3. The mother says that the children have only had supervised time with their father for most of their lives. The mother concedes that there have been no concerns about the father’s behaviour during the years of supervised time at the contact centre. The mother submits that there is a benefit to the children in maintaining their relationship with their father through that contact which points to the operation of section 60CC(2A) where the court must give greater weight to the risk of harm.

4. The mother submits that the Court “ought to consider the nature, quantity and similarity of the allegations of past sexual abuse made rather than simply the father’s convictions for sexual crimes.  The fact that police officers do not find the evidence sufficient to substantiate the prosecution of the complaint may or may not assist.” I accept this submission.

5. The mother goes on to refer to the evidence with respect to the risks posed by the father and the allegations made against him.  The mother says she was 13 when their sexual relationship began.  The father was keen to emphasise her being 14 during his evidence.  I prefer the mother’s evidence on this point, but in any event whether she was 13 or 14 does not lessen the offending.  What was concerning to me was the father’s keenness during cross examination on more than one occasion to emphasise that age. He impressed as being keen to minimise the seriousness of his offending.  Whilst he acknowledges that the relationship was not appropriate, he impresses as lacking insight into the real nature of the absolute imbalance between the parties given not just the fact that the mother was underage but that he was so much older.  This is not a case of two teenagers falling for each other with one being over 16 and the other under.  The father had been in a serious relationship and was already the father of two children.  The father referred to the age gap between his own parents and the happiness of their relationship.  The age gap between the parties is not in and of itself the concern.  It is the difference in their stage of development and maturity when they commenced their relationship.

6. In addition to the offending against the mother it is significant that four female relatives have made allegations against the father.  The father’s adult daughter Ms D has made allegations against her father for several years now and gave evidence in the hearing. The father’s niece Ms F made allegations that the father sexually abused her whilst she was in his care.  The daughter of the father’s cousin and formative de-facto partner Ms M also made allegations that the father abused her when she was a child.  Finally, [Y] made allegations when she was very young.  The father’s position with respect these allegations is that they are fabricated and motivated by revenge.  The father was not able to point to anything specific in this regard and it lacks credibility.  The father’s inability to see any other version including misinterpretation of actions by him is of real concern.

7. The mother submits that her evidence and the evidence of Ms D and Ms C was credible whereas the father’s answers were evasive and deflecting responsibility of his own actions.  Ms B also gave the impression that she would support her husband and did not believe the allegations or see any risk.

8. The utility of Mr S’s report is limited even in its limited scope.  This is not a criticism of Mr S’s expertise but rather the nature of the psychosexual assessment and the tests undertaken focus on convictions and not allegations. Due to these limitations, the assessment of the father as being at low risk does not assist the task of this Court.

9. The mother submits that the recommendations in the family report are fatally flawed because of the heavy reliance placed on Mr S’s report and the lack of consideration of unacceptable risk. The mother also says that at paragraph [168(d)] of the family report the family report writer unfairly places a burden on [Y] to decide whether or not she feels safe enough to stay overnight.  She says that this is the court’s task based on a consideration of the totality of the evidence. I also accept this submission. Such an order would also increase the likelihood of the matter returning to Court.

The father’s submissions

1. The father refers to the allegations made by Ms D and Ms F which were both made in August 2007.  He denies the allegations first the fact that neither complaint was authorised for a brief evidence.  He refers to DHHS involvement with the family and a protection application that they brought after the allegations in August 2007 which they withdrew on the father giving an undertaking.  The father says that the mother was incorrect when she says that the undertaking required his time to be supervised.

2. The children were four and three when their parents separated. Since 2011 their time with their father has been supervised, initially by DHHS.

3. The father says that when DHHS became involved again in 2010 no new allegations were raised.

4. The father disputes that [Y] made an allegation of sexual abuse against him. He refers to the evidence of Ms P and the concession that she was not asked open questions and only disclosed a single incident of the father touching her ‘girl bit’. Whilst [Y] initially made the disclosure to her mother and also to Ms P, she did not repeat the disclosure to SOCIT.[4] The father also points to the cross-examination of Ms P where she acknowledged that [Y] told her the incident only happened once. He also points to the ICL’s subpoena inspection notes of DHHS file and the reference to [Y] refusing to talk about sexual abuse with the counsellor and the mother and said her father did not do anything. Previous references refer to [Y] telling workers that the Father accidently touches her rude part with the palm of his hand.

   [4] Exhibit F

5. The father says that with respect to the allegation by Ms F, this was made at the same time as Ms D in August 2006. He says no brief of evidence was authorised and the father was permitted to spend time with Ms F after this. I am not satisfied that timing of the disclosures by Ms F and Ms D lead to the conclusion that they colluded or were encouraged to make the disclosures. The summary of the disclosures set out in Exhibit C. Ms F disclosed six incidents in 2007 but has an intellectual disability and could not give dates. Ms D did not only make disclosures in 2007. The subpoenaed exhibits also refer to Ms D having extensive counselling with CASA over several years. Both also received compensation with respect to both Ms F and Ms D. The father emphasised the fact that the police briefs were not authorised. Equally the complaints were not dismissed at an early stage but rather at different points.

6. The father submits that the allegations by Ms D are unreliable. He refers to the fact that in her affidavit she said that from 16 to 18 she was never alone with her father but conceded when cross-examined that she had travelled alone with him on a number of occasions.

7. The father submits that Ms C’s evidence was also unreliable. He says she was evasive when asked to explain how she knew that Ms D had made further disclosures that Ms D could not recall. There were family law proceedings on foot at the time. He submits the Court was aware of the allegations and ordered unsupervised time. The father says there was a thorough investigation by DHHS and the police that did not proceed to court. I do not accept this submission. I did not find Ms C to be evasive. My impression was that she answered the questions as best she could and made appropriate concessions.

8. The father says that the mother’s submissions which criticise the father for not posing a theory as to why the allegations have been made against him are flawed as he is not required to do so. That somewhat misunderstands the thrust of the submission and the concerns raised by DHHS.

9. The father seeks unsupervised time but if it is found that it should be supervised, he submits his wife Ms B is the appropriate supervisor. He refers to the limited capacity of the contact centre to provide ongoing supervision and uncertainty around what they will be able to offer in the future given the length of time the children have been going there and their ages. The father says that the contact centre is not a viable option moving forward.

10. The father says that DHHS assessed Ms B as a suitable supervisor for her grandchildren. He refers to DHHS report tendered from the subpoena material which is Exhibit G. He refers to page 11 of the report where he says all of Ms B’s family was assessed as being protective. However the evidence of Ms T and her report indicated that the family was not aware of the nature and extent of the allegations against the father in addition of the allegations.

11. I accept the father’s submissions that the positive nature of the supervised visits and the desire of the children to spend time with the father was unchallenged. He also refers to the children not showing a hesitancy and demonstrating physical affection towards the father with the father responding appropriately. This does not take away from the issue of risk if the father is to have unsupervised time.

12. The father places weight on the family report and submits that it was appropriate for the report writer to place weight on Mr S’s report. The report writer refers to the allegations and the fact that she is unable to test those allegations. The father submits that in addition to Mr S’s report the family report writer also relied on her assessment of the father and the positive reports of the children’s time with the father. This does not take away from her misapprehension about the nature of the Court’s task and the relevance of those allegations. Furthermore, it was clear when cross-examined that she did not challenge the father very strongly. I am not satisfied that she considered the risk to children properly as it was clear that she deferred much to Mr S’s report which clearly does not address the allegations (nor was that his task). I do not suggest that Mr S did not perform his task in the way expected and do not question his expertise. The issue is that type of assessment is of limited assistance to my task which is quite different.

13. The father submits that the mother’s submission that Mr S’s evidence should not be relied on should be rejected. It is not a matter of rejecting his report or evidence. He did what he was asked to do. Rather it is the limited nature of his report. If the only issue of risk was with respect to the father’s conviction it may be different.

14. The father submits that the mother told the children about the allegations in order to influence the report writer. I do not accept this. Whilst it is apparent that the children have been told about the convictions and allegations and their use of the word paedophile is of concern. I am not satisfied that the mother has engaged in any deliberate conduct to influence the children. I found her to be a truthful witness and genuinely concerned. It is not clear how much information the children received from Ms D and indeed whether or not Mr E has also spoken to them. It must also be remembered that the children and the mother have been interviewed by DHHS and have attended CASA for counselling over several years.

15. I accept the father’s submission that the state of the evidence does not allow the Court to make a positive finding that the father has sexually abused [Y], Ms F, Ms D and/or Ms M.

16. The father does not properly grasp with the concerns with respect to Ms U’s report which was raised during the course of cross-examination.

17. The father’s submissions skate over the issue of unsupervised time which perhaps is an acceptance of the likelihood that supervised time will be ordered.

18. He does seek to spend different time with the two children if it is determined that there is a risk to [Y] being at the father’s home and [X] is not. He says the “primary consideration of [X] having a meaningful relationship with his father should take priority over [Y]’s potential concern about being treated differently.” This does not engage with the issue. What is very clear from the evidence of the Ms P is that the risk concerns with the respect to the children are different but the risk to [X] is not lesser than the risk to [Y]. I agree with Ms P’s concerns in this regard.

The Independent children’s lawyer’s submissions

1. The ICL submits that the father lacks insight and downplays the allegations with respect to the mother. That is also my impression. Whilst the father said the mother may have been robbed of her childhood he also says she knew what she was doing and focuses on the fact that they later married and had children.  He has to make some acknowledgment of the inappropriateness of the relationship given his guilty plea. The ICL points to his evidence at the hearing and that it is consistent with the observations of DHHS at page 3 of Exhibit F.

2. The father’s complete denial of the other allegations instead suggesting collusions and possible motivations of financial gain lacks credibility. The father is not required to admit the allegations in order to address the issue of risk. What is of concern is the fact that he does not acknowledge there being any possibility of there being a misinterpretation of his conduct by any of his accusers of any mistaken but genuine beliefs.

3. The ICL helpfully summarises the allegations with respect to Ms D, Ms F, [Y] and Ms M. Exhibit A is an affidavit prepared by DHHS worker Ms L prepared for earlier proceedings. At [17] she says that Ms D and Ms F applied for and were awarded victims of crime compensation on the basis that on the balance of probabilities they were sexually abused.

4. The ICL notes that the mother’s denials of telling the children about the allegations and convictions conflicts with the evidence of the family report writer. She notes that the mother also deposes that the children are happy to see their father as long as it is supervised. The ICL submitted that any alleged influence by the mother should not discount the children’s views. I accept that submission.

5. The ICL submits that Ms D gave her evidence in a firm and measured way. She said she did not tell the children any details but told them to be cautious as their father did inappropriate things to her. I found Ms D to be a truthful and genuine witness.

1. The ICL expressed concern that the father’s insistence that Ms C was seeking revenge after 17 years lacked merit. The father also minimises the mother’s complaint and describes the breaches as misunderstandings.

2. The ICL submitted that Ms B’s evidence reflected someone being concerned but ultimately preferring the father’s version as correct.

3. I accept the ICL’s submissions that the family report is flawed. She also observed that she did not give a strong endorsement to the suitability of Ms B as a supervisor, describing her as the only option.

The Department of Health and Human Services submissions

1. The submissions of DHHS neatly summarise the issues of concern:

   In assessing risk of harm to [Y] and [X] DHHS takes into consideration factors such as pattern and history of alleged harm(s), the demonstrated insight, attitudes and beliefs of relevant parties (including the children) to the alleged harm and, the assessments and evidence of relevant professionals.

   The history of allegations of the sexual abuse of female children made against Mr Orban is extensive and deeply concerning notwithstanding the fact Mr Orban denies all the allegations save for those by the mother Ms Flemming.

   With regards the allegations of Ms Flemming for which he has been convicted Mr Orban has stated and maintains his belief that any wrong doing or harm was (in effect) minimised if not cured because the relationship continued on into Ms Flemming’s adulthood and included marriage and children. This belief/attitude fails to accept or recognise personal responsibility or show insight with regards the sexual relationship that commenced in such an inappropriate, exploitative and criminal manner. Nor does it show any insight into the potential harm(s) that could have accrued at the time to any child at the vulnerable age of 13 or 14 when sexually exploited by an adult figure of 26 years of age, regardless of what may or may not have transpired later in the life of that relationship. Further Mr Orban now dismisses Ms Flemming’s actions of having made the complaint to the police many years later as motived by malice towards him following the ultimate breakdown of their marriage and relationship.

   With regards the allegations of the other 4 parties Mr Orban also in effect dismisses those as motivated by malice towards him (with respect to child [Y] via the influence of her mother Ms Flemming) .

2. DHHS submits that [Y]’s time should remain supervised at the contact centre. It does not strongly urge for a different regime for [X] but if the court determines that there should be then that time should be supervised by Ms B and should only occur in public places.

Conclusions

1. I found the mother, Ms D and Ms C to be credible witnesses. The father lacked insight and whilst made some acknowledgement of his offending he sought to minimise it. Ms B also sought to minimise the father’s offending and, whilst I think she would do her best, I do not think she would be an adequate supervisor given the nature of the risks.

2. The family report is flawed not only because of the report writer’s heavy reliance on Mr S’s report, but also with respect to the allegations and related issues of parental capacity. This failure can also be seen in the way she is heavily critical of the mother but does not reality test the father’s attitudes. I do not place any weight on her recommendations for unsupervised time. The family report is only one piece of evidence.[5] The family report writer was cross-examined before DHHS workers and does not have the benefit of that evidence.

   [5] See Friscioni & Friscioni [2010] FamCAFC 108;  Gaffney & Gaffney [2012] FamCAFC 140 at [54]

3. I observe that one of the issues raised by the family report writer and the father is the mother’s influence on the children. All parents influence their children. That is part of parenting. What this really goes to is whether or not the mother has negatively influenced the children against their father. Frankly, it would be impossible for the mother to hide her concerns entirely about the father to the children. Certainly some criticism can be made that the children have been told too much, and this is likely to be from both the mother and Ms D. However, it would be naïve to think that the children do not ask questions and have not become increasingly aware that the father is unsafe because they see him at a contact centre on a limited basis and have done so for years on contrast to their friends of separated parents.

4. The father already had children when he met the mother and commenced a sexual relationship with her. That causes me some concern.

5. I am satisfied that the children would be at an unacceptable risk of harm if they spent unsupervised time with their father. The number of allegations made against the father are impossible to ignore. I am not asked to make positive findings that the abuse occurred, nor am I in a position to do so. My focus is on risk. This is a balancing exercise. There is the possibility that none of the abuse occurred. There may have been innocent explanations, misinterpretation or poor boundaries. I am not satisfied that the allegations are malicious. I am not satisfied that there has been any collusion between the father’s ex-partners and his daughters or any combination of these individuals.

6. The fact that the father cannot countenance any alternative explanations for the allegations being made to his position that they all lied raises concerns about his role modelling and influence on [X]. I accept the evidence of Ms P with respect to the risks to the children. The risks with [Y] and [X] are different but both are serious. The risks relate to psychological harm as well as the risk of sexual abuse.

7. I have considered whether or not there should be different spend time with arrangements for [Y] and [X]. The orders I am making are in line with [Y]’s wishes. They are not in line with [X]’s. I have considered the possibility that [X] may resent [Y] if he is not able to spend more time with his father and balanced this against the other risks I have identified.

8. In Betros & Betros [2017] FamCAFC 90 at [13] the Full Court of the Family Court commented that it is well recognised that long term supervision orders are undesirable but there are circumstances where that outcome is the children’s best interests. No party made any submission about there being mechanisms for the father’s time to progress to unsupervised time. In the circumstances of this case that is sensible.

9. Apart from the criticisms raised about the mother telling the children about the convictions and allegations in a way that is unhelpful to them, there is no criticism of the mother’s parenting capacity and attitude towards the responsibilities of parenthood. Given her genuine concerns about the safety of the children it is to her credit that she has facilitated the children’s time at the contact centre which involves significant travel. She also readily recognises that the children enjoy spending time with their father there. It is not her case that there should be no time with the children.

10. I recognise the reality that the contact centre may not be able to accommodate time in the future and at best it will be ad hoc and irregular. This is not an optimal outcome but is the one that best serves the children’s interests. If the father is able to afford to engage a private professional supervisor that would also be a viable option. I am satisfied that the mother will facilitate that if the father requested it.

11. For these reasons I make the orders set out above.

I certify that the preceding three-hundred and forty-four (344) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 15 February 2019