George and Kopek

[2011] FMCAfam 776

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GEORGE & KOPEK [2011] FMCAfam 776

FAMILY LAW – Children – parental responsibility – allegations of sexual abuse – allegations of family violence – unacceptable risk – high level of parental conflict – relocation – indefinite supervised time.

Family Law Act 1975 (Cth), ss.4, 4(1), 60B, 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j) 60CC(3)(k), 60CC(3)(l), 60CC(3)(m), 60CC(4), 60CC(4A), 60CG, 61DA, 65DAA, 69ZT
Evidence Act 1995 (Cth), s.140

M v M (1988) 166 CLR 69
Johnson & Page (2007) FLC 93-344
A & A (1998) FLC 92-800
Taylor & Barker (2007) FLC 93-345
Mazorski v Albright (2007) 37 Fam LR 518
Stevenson v Hughes (1993) FLC 92-362
TF & JF & Children’s Representative (2005) FLC 93-227
W & W (2005) FLC 93-235
Moose & Moose (2008) FLC 93-375
Champness & Hanson (2009) FLC 93-407
H v K [2001] FamCA 687
Rice & Asplund (1979) FLC 90-725

Applicant: MR GEORGE

Respondent: MS KOPEK

File Number: MLC 8663 of 2008

Judgment of: Baker FM

Hearing dates: 22, 23, 24 and 25 February 2011 and 12 and 13 May 2011

Date of Last Submission: 13 May 2011

Delivered at: Hobart

Delivered on: 3 August 2011

REPRESENTATION

Counsel for the Applicant: Ms Elleray

Solicitors for the Applicant: Lawsons McDonald Scott & Waters

Counsel for the Respondent: Mr MacFarlane

Solicitors for the Respondent: Hiller Quinn Law

Counsel for the Independent Children’s Lawyer: Mr Whitchurch

Solicitors for the Independent Children’s Lawyer: Heinz & Partners

ORDERS

1. The mother Ms Kopek have the sole parental responsibility for the children, [X] born [in] 2002, [Y] born [in] 2004 and [Z] born [in] 2006 (“the children”).

2. The children live with the mother.

3. The father Mr George spend time with and communicate with the children each alternate weekend on either Saturday or Sunday for a period of up to four hours, to be supervised by the [B] Children's Contact Service ([S]) or such other registry approved children’s contact service (such time to be spent in accordance with the directions of the contact services Director).

4. The father is at liberty to send and/or give to the children birthday and Christmas cards and presents from time to time, and the mother shall ensure that they are provided to the children.

5. The mother provide the father with no less than 28 days written prior notice of her intention to travel interstate with the children or any of them and to the extent that any travel impacts on the time spend with periods enjoyed by the father the mother shall provide make up time.

6. The father shall not unreasonably withhold his consent to the mother’s travel interstate with the children or any of them, provided that the mother complies with order 5.

7. The mother shall:

   (a)Keep the father advised at all times of the current residential address for the children,

   (b)Advise the father immediately in the event that the children suffer any serious illness or injury,

   (c)Authorise any medical practitioner upon which the children may attend from time to time to communicate with the father in respect of the children’s medical condition and/or requirements,

   (d)Provide the father within 14 days details of any changes to the children’s medical practitioners or schools, kindergartens and  childcare centres, such advice to be given by the mother in writing to the father c/- the paternal grandparents’ address in [N],

   (e)Authorise all school, kindergartens and childcare centres at which the children may attend to:

   (i)Provide the father, at the expense of the father, copies of all reports, notices and photographs in relation to the children;

   (ii)Communicate with the father either by telephone, or in writing, in respect of the children’s progress.

8. The mother and father and their servants and agents are hereby restrained for denigrating each other in the presence or hearing of the children or permitting any other person to do so.

9. The mother:

   (a)Attend and complete, as soon as practicable, a Post Separation Parenting Program.

   (b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.

   (c)Pay and otherwise be responsible for all costs associated with the program.

   (d)Provide evidence to the father’s solicitor and the Independent Children’s Lawyer that she has enrolled in the program.

   (e)Provide evidence to the father’s solicitor and the Independent Children’s Lawyer that she has successfully completed the program.

10. The father:

    (a)Attend and complete, as soon as practicable, a Post Separation Parenting Program.

    (b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.

    (c)Pay and otherwise be responsible for all costs associated with the program.

    (d)Provide evidence to the mother’s solicitor and the Independent Children’s Lawyer that he has enrolled in the program.

    (e)Provide evidence to the mother’s solicitor and the Independent Children’s Lawyer that he has successfully completed the program.

11. The father attend the anger management course, On-Going Change for a period of 12 months.

12. The father shall:

    (a)contact the [B] [S] Children's Contact Service within 45 days and arrange an appointment for an assessment for suitability for supervised time;

    (b)attend the assessment;

    (c)comply with any appointments made by the [B] [S] Children's Contact Service for supervised time;

    (d)comply with all rules of the [B] [S] Children's Contact Service;

    (e)comply with all reasonable requests or directions of staff of the [B] [S] Children's Contact Service.

    If, after assessment, the parties are accepted by the [B] [S] Children's Contact Service as suitable for supervised time, the father is to spend time with the children in accordance with order (3).

13. In the event the father does not enrol in the [B] [S] Children's Contact Service within a period of 45 days from the date of these orders, or fails to spend time with the children pursuant to these orders for a consecutive period of three months without providing any medical certificates, the mother be permitted to relocate the children to Queensland.

14. In the event the mother relocates to Queensland pursuant to order 13 herein the father spend time with and communicate with the children as follows:

    (a)Via Skype or telephone once in each week at a time and day agreed between the parties in writing and failing agreement each Sunday between 6.00pm – 6.30pm.

    (b)At a contact centre in [U] on such occasions as the father is able to travel to [U] and subject to availability of the contact centre, such time to be supervised by the contact centre and the father is to provide the mother with 28 days notice in writing of any such proposed visit.

15. The appointment of the Independent Children’s Lawyer be extended for a period of three months.

16. The father shall keep the mother advised at all times of his current residential address.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

MLC 8663 of 2008

MR GEORGE

Applicant

And

MS KOPEK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Mr George (“the father”) for orders in respect of the three children (“the children”) born of his relationship with the respondent, Ms Kopek (“the mother”). Those children are:

   ·[X] born [in] 2002 (“[X]”).

   ·[Y] born [in] 2004 (“[Y]”).

   ·[Z] born [in] 2006 (“[Z]”)

2. This matter has a long and acrimonious history.  The mother has made allegations of sexual abuse against the father.  Both parties have made allegations of family violence against each other.  The attention of the parties was focused on these allegations.

3. The father seeks orders to the effect that:

   ·The parties have equal shared parental responsibility for the children.

   ·The children live with the mother.

   ·The children spend time with the father on an unsupervised basis.

   The father was strongly opposed to spending time with the children on a supervised basis.  Despite this, he also sought that, in the event it is ordered that the children spend time with him on a supervised basis, his time with the children be supervised his parents or a family friend,

   
   

   Mr Y.

4. Initially, the mother sought orders to the effect that:

   ·The mother have sole parental responsibility for the children.

   ·The children live with the mother.

   ·That the mother be permitted to relocate from Victoria to Queensland.

   She did not propose that the children spend time with the father. However, during the hearing, Counsel for the mother produced a minute of proposed orders.  In that minute, the mother sought orders to the effect that:

   ·The children spend time with the father at a contact centre in [U] on a supervised basis, on those times when the father is able to travel to [U].

   ·The children communicate with the father by way of telephone or Skype once each week.

5. The Independent Children’s Lawyer (“the ICL”) sought orders to the effect that:

   ·The mother’s application to relocate be dismissed.

   ·The mother have sole parental responsibility for the children.

   ·The children live with the mother.

   ·The children spend time with the father at the [B] Children's Contact Service in [S] on a supervised basis.

Background

Current care arrangement for the children

1. The children live with the mother near [S]. They have lived with her since the parties separated in late 2006.

2. The children spend time with the father at the [F] Children's Contact Service in Bendigo (“[F]”) on a supervised basis for two hours each alternate Saturday.

3. The children all attend [M] School.

4. In 2009, [X] was diagnosed with an intellectual disability. She receives the assistance of an aide at school.

The parties

1. The parties commenced a relationship in around 2000, and separated sometime in late 2006. During the relationship, the parties lived in Victoria and Queensland.

The mother

1. The mother is 37 years old. She has two children by a previous relationship:

   ·[A], born [in] 1994 (“[A]”).

   ·[B], born [in] 1997 (“[B]”).

   [A] and [B] currently live with the mother.

2. The mother is married to Mr F (“Mr F”). They were married [in] 2009, and there is one child by that relationship:

   ·[C], born [in] 2009 (“[C]”)

   [C] lives with the mother and Mr F.

3. Mr F has two children by a previous relationship:

   ·[D] born [in] 2004 (“[D]”)

   ·[E] born [in] 2001 (“[E]”)

   [D] and [E] live with Mr F and the mother.  They spend time with their mother each alternate weekend and during some of the holidays.

The father

1. The father is 44 years old. He receives a disability pension.  He lives with his parents in [N] in Victoria. The father travels to Bendigo from [N] to spend time with the children at [F].

2. The father’s mother is Ms G (“Ms G”).

History of the proceedings

1. This matter has a long and complicated history.  It has been before several courts, and the parties and children have been investigated by various government departments and the Victoria Police. This chronology reflects uncontested or uncontroversial facts.  In preparing it, I was assisted by evidence tendered by the parties.

2. Sometime in or around October 2006, Queensland Family Services received an allegation that [A] and [B] had been verbally abused by the father.  That allegation related to a period during which the children and the parties lived in Queensland.  By 2006, the parties had returned to Victoria, and Queensland Family Services referred the allegation to the Victorian Department of Human Services (“the DHS”).  In October 2006 the DHS undertook an investigation of the parties.

3. The father tendered a report of the DHS investigation.[1] That report indicated that, at that time, the DHS had no concerns for the children in the parties’ care.  It indicated that the allegations were not substantiated and that the information which led to the investigation appeared to be incorrect. The report noted that the parties were observed to be managing the children well, and that [B] and [A] interacted well with the father.  The report also noted that the children’s school had no concerns about the children.

   [1] Exhibit “F1”

4. After the parties separated, the father spent time with the children each week at a park, or at the mother’s home.  He also spent overnight time with [Y] about once each month until October 2007.  When dropping off or picking up [Y], he would also see [X] and [Z].

5. On 22 October 2007 the police applied for an interim intervention order against the father on the mother’s behalf.  That order was made ex parte.  Thereafter the father did not spend time with the children.

6. On 18 December 2007 the intervention order was made final against the father in his absence, as he did not appear at the hearing. At the time the order was made, the mother was represented by Ms Patricia Coutts. On 29 November 2007 Ms Coutts wrote a letter to the father’s solicitors in which she outlined the mother’s proposal.  That proposal was that the father spend time with the children each alternate Saturday from 10:00 a.m. to 4:00 p.m. She wrote that the intervention order would not present a bar to the time taking place.

7. On 8 December 2007, the father was due to spend time with the children in accordance with the mother’s proposal. However, the parties had a dispute before that time could commence, and the father’s time with the children did not take place.

8. In mid 2008 the mother took the children to Darwin for around three months. She did not inform the father.

9. On 19 June 2008, the father filed an initiating application in the Magistrates Court of Victoria, acting in its family law jurisdiction.  In that application, the father sought orders to the effect that the parties have equal shared parental responsibility for the children, that the children live with the father and spend time and communicate with the mother.

10. On 16 July 2008, the father filed an Application in a Case in the Magistrates Court of Victoria, acting in its family law jurisdiction. In that application, he sought that a location order in respect of the children and/or the mother be made ex parte.

11. On 16 July 2008, Magistrate Wright of the Magistrates Court made orders in the terms of the father’s Application in a Case filed 16 July 2008.  The matter was adjourned to 27 August 2008.

12. On 25 August 2008, the mother made a notification to the DHS. In that notification, she alleged that the father had sexually assaulted her and sexually abused the children.

13. On 27 August 2008, the parties attended the Magistrates Court of Victoria on the return date of the father’s application. On the same day the mother filed a Response and a Notice of Child Abuse or Family Violence. In that Notice, the mother alleged:

    Since the birth of [X], the applicant father has involved [X] now aged 6, in a sexualised manner, including photographing [X] whilst naked and having [X] posing with her legs apart.  Further the applicant’s practice of placing a naked [X] on his leg and rocking her the applicant would be naked and on occasions was sexually aroused by his actions.

    The mother further alleged:

    [the father] has physically assaulted [the mother], [A] and [B] by striking.

14. On 28 August 2008, the mother was interviewed by Senior Constable W of Victoria Police in relation to her notification to the DHS.  At the end of the interview the mother said she would attend the Centre Against Sexual Assault (“CASA”) and think about making a formal complaint against the father. She said she did not want the children spoken to by the police.[2]

    [2] Exhibit “F5”

15. On 1 September 2008, the mother was referred by the DHS to CASA. [X] attended six sessions at CASA between 11 November and 12 December 2008.

16. On 10 September 2008, the parties attended before Magistrate Wright. He ordered that the children spend time with the father each

    
    

    Saturday from 10:00 a.m. to 4:00 p.m., such time to commence on

    
    

    20 September 2008.  It was also ordered that the matter be transferred to the Federal Magistrates Court in the sitting commencing

    
    

    24 November 2008 in Bendigo.

17. On or around 12 September 2008, the mother made further allegations against the father to the DHS.  She alleged that [X] was scared to spend time with the father, that [X] had told her that the father had put his penis in her vagina.  The mother also alleged that [Y] had disclosed that the father had touched his penis, and that the father had hit [B] with a torch.  Finally, the mother alleged that the children were exhibiting sexualised behaviour.

18. On 19 September 2008, Senior Constable W attended [H] School in order to speak with the children.  Her report indicated that no offences were disclosed by the children on that date.

19. On 20 September and 4 October 2008, the father spent time with the children.

20. On 29 September 2008, the mother filed a Notice of Appeal in the Family Court of Australia in respect of the orders made by Magistrate Wright on 10 September 2008.  In that appeal, the mother sought orders to the effect that the children spend time with the father at [F] on a supervised basis, such time to be arranged by [F] but for a minimum of three hours each fortnight.

21. On 13 October 2008 a notification was made by the staff at [H] School to the DHS that [X] disclosed that her father does “rude stuff” to her.  As a result of this notification, Senior Constable W attended the [H] School on 14 October 2008.  [X] was interviewed.

22. VATE tapes were taken by the Victoria Police on 16 October 2008, when [X] was interviewed and 26 November 2008, when [B] was interviewed.  On 21 October 2008 the father was interviewed.

23. In October 2008 the mother was informed by the DHS that if she sent the children to spend time with the father, the children would be removed from her care.

24. On 19 November 2008, the father filed a Notice of Child Abuse or Family Violence.  In that notice, he alleged, among other things, that the mother had been violent towards the father in the presence of the children.

25. On 20 November 2008 a letter from the DHS was provided to the Court. That letter indicated that the DHS investigation was inconclusive, but that the police were still investigating the matter.

26. On 21 November 2008, the mother’s appeal came before Cronin J in the Family Court of Australia.  His Honour determined that it was appropriate for the hearing to occur on 24 November 2008 in the Federal Magistrates Court, gave the mother leave to withdraw her appeal and appointed an Independent Children’s Lawyer. 

27. On 24 November 2008, the matter came before Riley FM. Her Honour adjourned the matter to 27 November 2008, and on that date made orders to the effect that the father’s time with the children be suspended and that the DHS intervene in the proceedings. Her Honour then transferred the proceedings to the Family Court of Australia, in the Magellan list.

28. The father annexed a letter from Victoria Police to his affidavit filed 15 October 2010.[3] In that letter, Senior Constable W advised the father that he would not be charged in relation to the mother’s allegations.

    [3] Annexure “AIG-3”

29. On 26 February 2009, the matter came before Senior Registrar Fitzgibbon in the Family Court of Australia. On that date, the parties entered into interim minutes of consent. Those orders provided for the care arrangement of the children as follows:

    …

    3.     Each party make application as soon as possible for admission to the [F] Supervision Contact Programme, Bendigo.

    4.     The father spend time with the children each alternate weekend at [F] at times negotiated and supervised by [F].

    …

    The matter was then transferred back to the Federal Magistrates Court at Melbourne.

1. The father annexed a letter from the DHS dated 3 March 2009 to his affidavit filed 15 October 2010.[4]  In that letter, Ms R, Child Protection Worker, advised the father that Child Protection Services would not continue their investigation into the family.

   [4] Annexure “AIG-4”

2. On 5 June 2009 the mother obtained another intervention order against the father for a two year period.  Mr F also obtained an intervention order against the father for a twelve-month period. These orders were made in the father’s absence.

3. On that day, there was an incident at the courthouse between the father and Mr N, a chaplain employed by the Salvation Army. As a result of that incident, the father was suspended from attending [F] until December 2009.

4. On 19 October 2009, the parties entered into similar interim orders by consent in the Federal Magistrates Court:

   1.     That paragraphs 3 and 4 of the orders made in the Family Court of Australia on 26 February 2009 continue to have full force and effect.

   2.     That all parties forthwith take all further steps necessary for the father’s time with the children to commence at [F] Children's Contact Service in Bendigo as soon as practicable.

   …

5. On 30 January 2010 the father began the current arrangement for spending time with the children at [F] on a supervised basis.

Issues

1. The first issue was whether [X] will be exposed to an unacceptable risk of sexual abuse if she spends time with the father. The mother alleged that the evidence disclosed an unacceptable risk. The father alleged that the sexual abuse allegation was false, and he does not pose an unacceptable risk.

2. The second issue was whether or not it is in the children’s best interests to spend unsupervised time with the father, given the high level of conflict between the parties and their entrenched attitudes. If it is determined that time is to be on a supervised basis, a secondary question is who should supervise the father’s time, and where that time should take place.

3. The third issue was whether the mother should be permitted to relocate to Queensland with the children.

Evidence

1. The father relied upon the following documents:

   ·Initiating Application filed 19 June 2008.

   ·Application in a Case filed 16 July 2008.

   ·Affidavits of the father filed 19 June 2008, 16 July 2008, 18 November 2008 and 29 April 2010.

   ·Affidavit of Ms G filed 10 September 2008.

   ·Notice of Child Abuse or Family Violence filed 18 November 2008.

   ·Psychiatric Reports prepared by Dr D on 8 May 2009.

   ·Report from the [F] Children’s Contact Services dated 1 May 2010.

   ·Outline of Case.

   A Psychological assessment prepared by Mr J dated 3 September 2009 was referred to in the Outline of Case document, but it was not tendered and does not appear to have been filed.

2. The mother relied on the following documents:

   ·Amended Response filed 10 May 2010.

   ·Affidavits of the mother filed 8, November 2010 and 6 May 2010.

   ·Affidavits of Mr F filed 20 November 2008 and 6 May 2010.

   ·Outline of Case.

3. The ICL relied on the following documents:

   ·Affidavit of Ms C (“Ms C”) filed 6 May 2010.

   ·

   Affidavit of the Family Consultant, Mr O (“Mr O”) filed

   
   

   29 October 2010, to which the report of Mr O dated 28 October 2010 was annexed.

   ·Report of Mr O dated 7 May 2010.

   ·Affidavit of Dr D (“Dr D”) filed 5 May 2010, to which the report of Dr D dated 8 May 2009 was annexed. That report was also tendered by the ICL.[5]

   ·Oral evidence of Mr B, Principal of [H] School.

   ·Bundle of [F] Children's Contact Service reports.[6]

   ·Subpoenaed documents from Centre Against Sexual Assault.[7]

   ·VATE tapes taken by Victoria Police.[8]

   ·Outline of Case.

   [5] Exhibit “ICL 4”

   [6] Exhibit “ICL 3”

   [7] Exhibit “ICL 1”

   [8] Exhibit “ICL 2”

4. The following witnesses gave oral evidence and were cross-examined:

   ·The father.

   ·The mother.

   ·Ms G, the father’s mother.

   ·Mr F, the current husband of the mother.

   ·Mr O, Family Consultant.

   ·Mr B, the Principal of [H] School.

   ·Ms C, [F] employee.

   ·Dr D, Consultant Psychiatrist.

5. The VATE tapes were played in Court in the presence of the parties.

6. All the parties relied on exhibits which were tendered. A number of documents were business records.

Evidence of the father

Evidence of the father – the CPS report

1. At the hearing of this matter, the father tendered without objection a Victoria Police CPS Case Record Summary Report (“the CPS report”)[9].  The CPS Report was produced by Victoria Police on 7 May 2011 pursuant to a subpoena filed by the Independent Children’s Lawyer on 24 April 2011.

   [9] Exhibit “F5”

2. The CPS report was prepared by Senior Constable W of Victoria Police. She was not required for cross-examination in these proceedings.

3. The mother was cross-examined about the CPS report.  I address the mother’s evidence later in these Reasons.

4. The CPS report contains a case narrative prepared by Senior Constable W.  The case narrative contains the notes of an interview with the mother on 27 August 2008.  It appears that interview was conducted by Senior Constable W.  The interview notes read as follows:

   1200 hrs – mother in attendance s/t same

   Mother stated father used to make her take photos of him naked, and she said she told him she didn’t want to take the photo.

   Mother said father made her take photos of the children naked, and he too would take photos of the children naked.  Mother showed four photos and in each [X] was naked, but they were not explicit, nor appear out of the ordinary (descriptions of each photo in day book)

   Mother described the incident in the lounge where subj. [X] on father’s knee, both naked, he got an erection and had sex with mother afterwards that the children witnessed.

   Mother stated father changed after [X] born and she didn’t want to go to bed with him, he’d want sex when she was tired and in the end she would just give in.

   Mother did not say she did not consent to the sex, when asked to clarify, she said he’d force himself on me.

   …

   Asked mother why telling police this now, [she said] “that’s what my solicitor asked to. I need to stick up for my children”

   Asked if father did anything to children, [she said] “when [X] was 6 mths old he spread her legs when changing her nappy, if that’s anything”

   Mother stated she would do anything to protect and keep my kids.

   Options explained at length to mother regarding report of rape.

   Mother stated she would attend CASA Thursday 1330 hrs and think about making a formal complaint to police.

   [She said] “I don’t like going to court I hate it, I don’t want the court to drag things out.  I told police I want to get on with my life with the kids and build a better life.  I just want to go and see CASA, want to see them first.  The kids have been through a lot don’t want them dragged through anything or spoken to by police.”

5. The case narrative contained in the CPS report shows that on

   
   

   12 September 2008 Senior Constable W received a notification from the DHS.  That notification stated that the mother had made additional allegations against the father.  Senior Constable W telephoned the mother, and asked her whether there was more information. The mother told her that she just wanted someone to believe her. She did not want Senior Constable W to talk to the children. Senior Constable W told the mother that she needed to talk to the children to make sure they were safe.

6. The case narrative contained in the CPS report includes notes of interviews conducted by Senior Constable W with the children on

   
   

   19 September 2008.

7. [B] told Senior Constable W that, when the children were living with the parties in Queensland, the father had hit him on the head with a torch because he had wet the bed.  [B] told Senior Constable W that when the parties had lived in Queensland he had also seen the father “bump” the mother, and that he had seen the mother struggling underneath the father.  Senior Constable W asked [B] what he meant by “bumping”.  [B] said that the father was naked, on the mother, “bumping” her on the bed.  [B] said that [X] and [A] witnessed the parents “bumping”, too.

8. [B] told Senior Constable W that he did not feel safe going to visit the father.  He told Senior Constable W that he was scared, because the father had hit him on the head.  [B] said the mother had hit the father when the father hit him.  He said he could not recall when or where he last saw the father.

9. [B] told Senior Constable W that he saw the father put his “dickie” in [X]’s vagina.  Senior Constable W reports:

   When questioned [[B]] began to elaborate on the story saying he was sitting on his bed near the window and looked out and saw it. [He] could not elaborate though on the specifics of what [the father] was doing, but repeated [the father] put his dickie in [[X]].

10. Senior Constable W made the following observations of his interview of [B]:

    [[B]] used words as per narrative in mother’s notification.  [He] was not very verbal, had limited vocabulary and appeared to possibly have a mild intellectual disability.

11. Senior Constable W made the following notes of his interview with [X]:

    [[X]] was asked to tell some good things about dad, some not so good things about dad, she was not able to answer.  [She] was asked to name her ‘private parts, rude parts, where her wee came from’ but could not name them.  The word vagina was foreign to [her].  [She] was asked if she had seen dad without clothes, mum without clothes, she stated she could not remember. [She] was asked if she played ‘horsies’ with dad, [she] could not remember. [She] was asked if she had seen dad’s dickie, [She] said no and shook her head.

12. The mother was in attendance when [A] was interviewed by Senior Constable W.  [A] told Senior Constable W that the father used to smack him and [B] on the head using his hand, although there was never any bruising or bleeding as a result. Senior Constable W asked [A] if there was anything else he thought the police should know. The case narrative notes his reply as follows:

    [[A] said] that when [[X]] was a baby he saw [the father] spread her legs wide out. He stated that was last year or two years ago.  Asked [him] to be sure, as [[X]] is now 6 yrs old, that she would not have been a baby if it was as recent as he has said.  [He] stated he was not sure.  He said it happened when they lived in Qld, in the lounge room when she was laying on the floor.  [He] stated he did not see [the father] do anything else to her.

13. [A] told Senior Constable W that the father used to bathe, dry himself and sit back down naked. [X] would be on his knee, but [A] did not see the father to anything else to her at those times.

14. Senior Constable W explained to the subject the concept of good/bad/appropriate/inappropriate touching. [A] understood that concept, and said that there had been no inappropriate touching with any of his siblings.

15. [A] told Senior Constable W that sometimes he witnessed the mother crying, and that she told him the father had made her do “bad stuff”. Senior Constable W asked him to clarify what the “bad stuff” was, and he said “the stuff like they go to bed to do.” Senior Constable W notes:

    Asked [[A]] if he ever saw this and [he said] no, he was never allowed into mum’s bedroom nor were the other children.

16. The case narrative contained in the CPS report outlined the DHS report to Senior Constable W. That DHS report of the 13 October 2008 notification from [H] School was prepared by Ms R, and outlined [X]’s disclosures to school staff. The case narrative noted that [X] disclosed to school staff that the father did “rude stuff” to her.  The staff asked [X] if the father touched her.  She said, “He put,” and then stopped.  She then said that her father touched her leg near her thigh or near her genital area. The narrative notes that [X] had no sense of time-frames, of when the incident was alleged to have occurred.

17. The case narrative noted that the school staff reported that the mother attended at the school on Friday, before the children were due to spend time with the father on Saturday.  She “vocally displayed” that the children did not want to go with the father, because they were scared.

18. As a result of [X]’s disclosures at school, Senior Constable W attended the school on 14 October 2008. Senior Constable W interviewed [X] on that day. The case narrative in the CPS report notes:

    …[X] could not elaborate using actions to display what it is alleged the father did to her.  The details were unclear.  Only the one initial statement was made by her.  She has limited verbal skills and very limited vocabulary.  It may be difficult for her to relay her understanding, if any, of truth/lies but given allegation/disclosure was made, a VATE will be taken.

19. Senior Constable W records the following notes of her interview with [X]:

    [he said] “Who was naughty?”

    [[X] said] “Dad.”

    [Senior Constable W said] “Tell me about Dad being naughty.”

    [[X] said] “He put him dickie down there and made me ride him knee”

    [[X]] stated her big nanna was there too, it was at the old house. [She] does not know where/town, when this happened.

    Asked [her] if she talks to her mum about Dad

    [[X] said] “Yep Mum says don’t go to Dad’s”.

    [She] stated she is, “Scared of Dad cos he do nasty things”

    [She] could not elaborate on same

20. Subsequently the VATE tapes were taken on 16 October 2008 of [X] and 26 November 2008 of [B].

21. The father was not charged with any offence in respect of the mother’s allegations.

Evidence of the father regarding allegations of sexual abuse

1. The father denied that he treated [X] in a sexual manner at any time. He changed [X]’s nappy in the same way that he changed the other children’s nappies.  He denied that he spread her legs in an exaggerated manner, or that there was any sexualised behaviour associated with changing of her nappy.  He said he handled [X] naked when she was little, as the mother did.  He had a bath with [X] and the other children on other occasions.  All of them were naked, but there was nothing sexual, offensive or abusive about those incidents.

2. The father did not deny that there were times when he sat on a chair or a bed after having a shower with or without the children and played with them.  He denied any suggestion there was any sexual connotation to that conduct.

3. The father denied that he had [X] on his lap when she had no clothes on.  He denied that he had ever approached the mother whilst he was naked and whilst he had an erection, that he put his penis in her face or against her, demanded sex and took her into the bedroom and had sex with her in front of the children. He denied that he forced himself upon her for sexual intercourse.

Evidence of the father regarding allegations of family violence

1. The father denied that he ever hit the mother. He denied that he hit the children. He denied that he hit [B] or locked him out of the house. He denied that he belittled the children.

2. The father denied being physically abusive towards [A] or [B] or any of the children with a torch, or that he locked [B] outside at night or abused the children in any other way.

3. The father said that the mother had made the allegations two days before the hearing in August 2008, after she had tried everything to prevent him from having time with the children. She obtained an intervention order, went to the Northern Territory with the children and then made the sexual assault allegations.

4. The father said that the mother was angry, violent and threatening during their relationship and that she consulted a psychiatrist or a psychologist about her problems.

5. In relation to the intervention order, the father denied that he assaulted the mother in October 2007.  He said that the mother hit herself in the face and then went to the police station to obtain the order.

Evidence of the father regarding the incident on 5 June 2008

1. The father gave evidence about what happened on 5 June 2008, when the mother and Mr F obtained an extension of the intervention order against the father.  He was asked whether he assaulted a Salvation Army chaplain, Mr N. He said that, on a previous court date, he was pushed out of court by the chaplain. He believed that Mr N was on the “mother’s side”.  On 5 June 2008, he went to the toilet block, where he spoke to the chaplain and asked him why he was on the mother’s side.  The chaplain then called for court support.

2. The father was cross-examined in relation to the incident. He admitted that, as a result of the incident, he was charged with assault and theft. He pleaded guilty, because he was advised to, and was given a community based order. On 13 October 2009 the father was convicted of theft and unlawful assault in relation to the incident. Notwithstanding this, he denied that he had done anything wrong.  He said he grabbed a mobile phone from the chaplain, but that he did not push him.  He agreed that the police tried to stop him and that he ran down the road.  He admitted that when he drove away, the window of the car was smashed and he had to be removed from it by the police.  He admitted that he refused to have his finger prints taken.

3. The mother tendered without objection a Summary of Charges document which outlined the charges brought against the father in relation to the incident which occurred on 5 June 2008.[10]

   [10] Exhibit “M1”

4. The Summary of Charges document indicated that the father confronted Mr N about a previous incident at court. When Mr N attempted to leave to the toilet the father prevented him from doing so by standing in front of the door with his arms crossed. Mr N attempted to reach past the father and open the door, at which point the father shouldered the door closed and pushed Mr N away from the door with his folded arms.  Mr N then started to dial 000 on his mobile phone.  The father grabbed the phone from his hand and pushed him in the chest with the other hand. He then ran out of the court building and refused to stop for the police. He was chased by police and arrested further down the road.

Evidence of the father regarding parental conflict

1. The father denied that he has ever used bad language or criticised the mother. He said that he could not remember calling her a bitch, or a fucking bitch.

2. During cross-examination, the father was referred to the [F] report for the visit 24 July 2010, where it was reported that he said, “she is a bitch, she is a real fucking bitch, I should go over there and kick her in the head.” He said he could not remember saying that. Then he said that he might have said ‘bitch’, but he could not remember saying ‘fucking’.  He denied that he said that that he should go over and kick her in the head.  He denied calling her names in front of the children.

3. The father said that it was the mother’s fault, not his, that he does not see the children. He denied that his actions or comments have contributed to the fact that his time with the children is supervised.  He said that he was not hostile towards the mother; rather, she was hostile towards him.

4. The father was cross-examined about the [F] report for the visit of

   
   

   18 September 2010. On that visit, it was reported that [X] refused to give the father a hug, and that Ms G said to her, “Well, we will have to find ourselves another little girl to spend time with and give us hugs.” He was asked whether he thought what Ms G said was appropriate.  At first, he said no, however he reconsidered and said that it was appropriate.

5. In his oral evidence, the father said that he has the use of his mother’s car, which is in good order.  He indicated that he could travel to [S].  When asked whether he would go there he answered, “I suppose I’ll have to”.

6. Whilst giving his evidence, the father was angry and upset. He believed that he had been wrongly accused by the mother of sexually abusing [X]. He believed that none of his behaviour has contributed to the requirement that the time he spends with his children be supervised. He believed that the mother, the children, the Salvation Army, the police and the [F] workers were all against him.

Evidence of Ms G

1. Ms G is the father’s mother. She is 65 years old.

2. The parties lived with Ms G and her husband for a period of time.  She said that the mother’s behaviour was not acceptable, as she used to yell and throw things around the house. She said that on one occasion the mother picked up a saucepan of food and threw it across the kitchen and then threw a bundle of keys at the father, causing a hole in the wall.

3. Ms G said that she and her husband will assist the father to take care of the children. They have attended [F] every fourth Saturday to spend time with their grandchildren.

4. During cross-examination, Ms G denied that she heard the father call the mother a “bitch” or a “fucking bitch” at [F]. She said she heard the worker tell the father to settle down. She admitted that she told the worker, “It is [the mother]; she revs the kids up” and asked, “What about her?”

5. Ms G said that the father does not want to have anything to do with the mother. She was asked whether she understood that it is a problem that the father does not acknowledge the mother.  Her answer was that it is alright if the children talk about the mother, but other than that she could not see any reason to acknowledge the mother.

6. Ms G does not believe any of the mother’s allegations and said that the mother is making them up.

7. Ms G said that [X] is reluctant to kiss and cuddle her and the father because she has been told not to.  She thought that [X] should give her a kiss.  She threatened [X] because she thought that might persuade to give her a kiss. She saw nothing wrong in making the comment, “Well, we will have to find ourselves another little girl to spend time with and give us hugs”, to [X].

8. Ms G was asked whether she has continued to criticise the mother since January 2009.  Her answer was that she criticised her one time when speaking to a worker and the children came in.  She was referred to the [F] report in which the worker wrote:

   [The father] and Ms G have verbally vented their negative opinion of [the mother], often in the hearing of [X], [Y] and [Z], and have been encouraged by the workers on a number of occasions to remain child focused and to enjoy their time with the children.

   Ms G did not agree entirely with that statement.

9. Ms G said that she believed that some of the [F] reports were biased because they were in the mother’s favour. When asked whether both parents share the blame for their lack of interaction, she answered, “No, it is not the father’s fault. It is the mother’s fault that the children are not spending alternate weekends and time with the father.” She said that their poor relationship was totally the mother’s fault.

10. When asked whether the father has an anger problem, she said:

    I wouldn’t say that. When he gets stirred up by someone like that, what would you expect?

Evidence of the mother

Evidence of the mother regarding the allegations of sexual abuse

1. The mother said that during the relationship, the father’s behaviour towards [X] made her uneasy.  He would bathe the children and then he would put [X] on his knee and jiggle her around whilst both he and she were naked. When he put her down he would often have an erection.  He would then approach the mother, push himself against her and demand sex.  Whilst bathing the children he would take a long time to wash between [X]’s legs.  He would ask her to take photographs of [X] and coach her to put her legs apart.

2. After separation, the mother said that she spoke to her first solicitor Ms Patricia Coutts, the Department of Human Services and Victoria Police in regards to her concerns about the father’s behaviour. At that stage, she said there was nothing more significant to report other than her concerns referred to above.

3. In 2008 the mother took the children to Darwin for several months. She admitted that she did not tell anyone in authority about the sexual abuse allegation whilst she was in Darwin.

4. Upon her return to Victoria, the mother heard nothing from the father. She hoped that he had “lost interest”. She did not think counselling was appropriate for [X], as she was only about five or six years old.

5. In 2008, [X]’s kindergarten teacher at [omitted] reported to the mother that [X] had said that she was sore between the legs. When the mother asked [X] about this she said words to the effect of, “Daddy put his thing down there.”  When the mother asked her what she meant she pointed at her vagina. When she asked [X] what she meant by ‘thing’ she pointed to her son’s penis.

6. The mother said that she sought advice from Ms Coutts, but that she swept away her concerns.  The mother then consulted another solicitor who told her there was not enough evidence.  She contacted the DHS. She was told that if she sent the children to spend time with the father, she would not be acting protectively.  She said that she did not know what to do.

7. When the father applied to spend time with the children in the State Magistrates Court, the mother opposed the application. She filed a Notice of Risk of Child Abuse on 27 August 2008.  A worker from the DHS contacted her, and said that the Department would apply to have the children removed from her if she sent the children to spend time with the father.

8. The mother said that the father was sexually inappropriate towards her in the presence of the children.  He would come out of the shower with an erection and rub his penis in her face.  He would rub against her when she was trying to do household tasks.  If she would not have sex with him he would become angry and call her a lesbian or yell at her. This behaviour often occurred in front of the children.

9. During cross-examination, the mother agreed that there were no doors in the house in Queensland.  She put a curtain and rod across the parties’ bedroom door, but could not keep it up.

10. During cross-examination, the mother was asked about her interview with Senior Constable W on 26 September 2008, when the mother showed Senior Constable W four photographs. In each of those photographs, [X] was naked. The CPS report concluded that while [X] was naked in each of the photographs, they were not explicit and did not appear to be out of the ordinary. The mother disputed this conclusion.

11. The mother said that she threw away the other photographs of [X] posing with her legs parted because the police said they could do nothing.  She said that there was no reason to hold on to them. She destroyed them because they were “disgusting.”

12. The mother said that the father’s inappropriate behaviour occurred during 2004 in Queensland. She did not tell anyone until “the eve” of the court case because she did not know what to do or who to go to. She said that she was compliant with the father because he told her that he would say that she was a “crazy bitch”.  She agreed that despite the fact she was engaged with a counsellor for two years, she did not report the father to the counsellor.

13. The CPS report noted that the mother told Senior Constable W, “When [X] was 6 months old he spread her legs when changing her nappy, if that is anything.” During cross-examination, the mother was asked why she did not tell Senior Constable W that, whilst changing [X]’s nappy, the father would have his head down right near her, as she had told CASA.[11]   She answered that it was probably because she was crying and added that she thought she had told her.

    [11] Exhibit “ICL1” at page 2

14. The CPS report noted that the mother told Senior Constable W that the father would force himself upon her.  During cross-examination, the mother was asked why she elected not to pursue rape charges against the father. Her answer was that, because no charges would be made, there was no point in doing anything.

15. It was put to the mother that, on 30 November 2007 her solicitor,

    
    

    Ms Coutts, wrote to the father proposing unsupervised visits. The mother said, “that was the law.”  She added that she did not instruct Ms Coutts to propose unsupervised time.

16. The mother said that she saw “little things” about the father’s behaviour. When she was asked what she saw, she said, “Riding [X] on his knee, washing her between her legs and the photographs.” However, she could not say definitively that anything had happened until [X] disclosed the information to her.

17. It was put to the mother that DHS workers came to her home in October 2006, and that she told them she was “really happy” at home. The mother agreed, but explained that she could not voice her concerns whilst the father was present, as she would have been “belted up”.

18. The mother agreed that the 2006 assessment conducted by the DHS indicated that the father presented as a placid man, who interacted well with the children.  It was put to her that the assessment indicated that the children were comfortable around him and they were comfortable in the house.  It was also put to her that the children’s school teachers also had no concerns for the children, and that [B] and [A] told the DHS that the father was good to them.  [A] said there was not anything bad and no one ever hurt him.  [B] said he felt safe at home and school.[12]  The mother said she could not comment about those statements.

    [12] DHS case notes, tendered as exhibits “F1” and “F2”

19. When the mother was asked why she had waited two years to make the sexual abuse allegation, she answered that at the time [X] made the disclosure she was only four years old.  She had been trying to get legal advice, and did not know what to do.

20. The mother denied that she “worded [X] up” and concocted the allegations. She could not explain why she told Senior Constable W that the children had been through a lot and that she did not want them spoken to by the police.

Evidence of the mother regarding allegations of violence

1. The mother alleged that, during the relationship, the father was physically violent towards her, [B], [A] and [Y]. She said that there were occasions on which he slapped her across the face. He has thrown her onto the bed and thrown things at her.

2. On one occasion, when [B] was about nine years old, the father hit [B] with a torch across the head.  The mother grabbed the torch out of the father’s hand and hit him with it.  The father used to hit [B], [A] and [Y] around the head.  On one occasion, the mother found the father with his hands around [B]’s throat.  She dragged him out of the house and locked the door.

3. The mother said that the father would become angry and agitated easily.  The father yelled at the two children and also verbally belittled them if they were not behaving.

4. On 22 October 2007, the parties were in the car and started to argue. The father became agitated and starting hitting her.  Following that incident, the mother attended the [N] police station.  The police officer who took her statement made an application for an intervention order on her behalf on that day.   The father alleged that the mother was punching herself in the face as she drove off.  The mother denied this.

5. The mother admitted that, while the parties were living at the paternal grandparents’ home, she knocked a pot off the stove because the paternal grandmother got on her nerves complaining about the mess. On another occasion when the parties were living in Queensland, the mother punched the shed wall after the father had been following her around all day.

Evidence of the mother regarding proposed relocation

1. The mother, Mr F and the children live in a four bedroom home outside of [S] with a bungalow attached to the back.

2. The mother said that she had been successful in enrolling in a course with [university omitted]. The course she wishes to undertake is a two year full-time course, or three year part-time course. She intends to commence her degree in the second semester of the 2011 academic year.  During cross-examination, she said that she had started a tertiary preparation program, but because of the floods it was on hold.  After that course has been completed, she then has to apply for the three year course.  She would rather do the course in Queensland because she needs a tutor for [subject omitted], although she could probably find a tutor in [S].

3. During cross-examination, the mother agreed that the children are well settled in school, and are involved in activities such as [omitted].  She has made enquires about schools in Queensland. She has made enquiries about accommodation, and has been advised that there should not be any difficulty in obtaining accommodation of a similar kind to what they currently have.

4. The mother understood that, due to her limited financial capacity, the father would not be able to spend time with the children unless he travelled to Queensland.

Evidence of Mr F

Evidence of Mr F regarding the allegations of violence

1. In March 2009 Mr F accompanied the mother to the State Magistrates Court as she applied for an extension of an intervention order against the father.  He said that the father approached him after court, and hit him across the back and made threats against him. Mr F reported the incident to the police and also applied for an intervention order against the father.

2. The mother and Mr F’s applications for intervention orders against the father were listed in Bendigo on 5 June 2009.  During the lunch adjournment, he heard yelling.  One of the police officers in the court room with them ran outside. They were informed that the father had been arrested.  The Magistrate made the intervention orders for Mr F and the mother in the absence of the father.

Evidence of Mr F regarding the proposed relocation

1. Mr F said that he and the mother have made enquiries in respect of employment and housing in the [U] area. They have also made enquiries in respect of the children’s schooling and extra-curricular activities.  He was happy with the children’s current schooling.

2. Mr F has had preliminary discussions with his former partner about the arrangements for their children if he were to relocate to Queensland.  He was employed at an [omitted], but he was not currently working. He has had his gall bladder removed and has had complications. His return to work is dependent on medical tests. The family was in receipt of Centrelink benefits.

Evidence of the Family Consultant

1. The Family Consultant, Mr O, prepared Family Reports dated 7 May 2010 and 28 October 2010.  He viewed the VATE tapes prior to giving oral evidence.

2. Mr O gave a detailed history and chronology of events from the information he obtained from various sources, which he set out in his report.

3. He interviewed the parties, [A] and [B] and observed the children with both parties.

4. During the interview with [A] and [B], both children agreed that they had seen the father come out of the shower and approach the mother whilst he was naked. They spoke of witnessing him rub his penis on her face or body.  They said that they would usually retreat as a way of managing their feelings about this behaviour, but noted that it was wrong. They noted that the father usually did not wear clothing after he bathed, and would sit and watch TV naked in the evening. They spoke of having seen his penis both erect and flaccid. They did not report having seen anything occur that involved [X].

5. In his evaluation he said:

   Finally, in the writers view, the information contained seemed to support Ms Kopek’s concerns rather than challenge them.  In contrast, is (sic) appeared to challenge Mr George’s.  If the Court considers that Ms Kopek has been truthful, then it may well be in the children’s best interests to limit their involvement with

   
   

   Mr George to supervised only or even less so.

6. In his second report he interviewed the parties, Mr George’s parents and Mr F.  He observed the children with the grandparents, with the father and with the mother.  Whilst Mr O could not make firm recommendations, he said that:

   “Given the information gathered in both assessments and the observations made of all parties it is noted, the writer remains significantly concerned about the past experiences of the children and the potential for harm should any unsupervised time occur…finally, in the writers view once more that the information contained seemed to support Ms Kopek’s concerns rather than challenge them”

7. During cross-examination, Mr O said that, having viewed the VATE tapes, he saw consistencies between what the children said in those interviews and what the mother and the children had told him.  At the interview for the Family Report, when he asked [X] to see the father, she would stand away.

8. Counsel for the father put to Mr O that the VATE tapes had coloured his views, and that he had drawn a conclusion about the father’s behaviour.  He was referred to the inconsistencies in [A] and [B]’s statements regarding the allegations. He was shown the letter dated 24 March 2009 from the Victoria Police stating that no charges would be laid.  He was referred to the evidence of Mr B and to the CPS report of the interview between the children and the police dated

   
   

   19 September 2008.

9. Mr O responded that he could understand that the father would be angry that his time with the children has to be supervised if the allegations were untrue. However, he said that the conflict between the parties will not cease. Even if the sexual abuse allegations were put to one side, he did not believe that time on an unsupervised basis should occur, because of the level of conflict between the parties.

10. The dynamic between the parties was an issue, due to the history of the breakdown in their relationship. Their relationship was enmeshed, which he did not believe would change, and there was a level of hostility, from which the children need to be protected.

11. He said that even if the Court were to reject the assertion that the children would be at significant risk if they spent time with the father, on-going supervised time will be required, possibly for the long-term. Skilled supervisors will be required to ensure the conflict between the parties does not override the time. He said that, if the Court found that the children were at an unacceptable risk when spending time with the father, he was not sure that there would be any value to the children in spending time with the father.

12. Because the children have been told to view the father with suspicion, he was unsure how they would process that. If time were to occur, he wondered how [X] would process it, in light of the sexual abuse allegations.  He also wondered how [B] would be affected by the children spending time with the father.

13. Mr O was asked what the mother had done to foster the relationship between the children and the father.  He answered that the conflict went both ways. Given the level of hatred between the parties, the father and his mother were the most vocal individuals.  However, he said that he could “see it in the mother”. He said that if the allegations are substantiated, this will support the mother as having acted protectively.  However, if the allegations are not substantiated, this will show that the mother has been active in undermining the relationships between the children and the father.

14. Mr O was concerned about the father’s limited capacity to understand processes. He suggested that this was what had led to alleged aggressive behaviour in the past. He was of the view that because the father repeatedly made derogatory comments about the mother, from 2010 until recently, he would continue to do so if his time with the children were unsupervised.  He was of the view that, “Without supervision of some sort, it is highly likely, if not absolutely certain, that the matter would dissolve into further conflict, distress and general mayhem.”  

15. I consider that Mr O drew conclusions about the father’s behaviour, which influenced his evaluation. His evidence was therefore of limited assistance. He did not consider what impact there would be upon the children if the court were to find that the mother actively undermined their relationships with the father.   He said:

    “If the court was to consider that Ms Kopek has seriously misdirected the court then this should strengthen Mr George’s application for an ongoing relationship with the children.

1. I do not place any weight on his evidence about his observed consistencies in the VATE tape interviews. He did not have opportunity to observe the witnesses under examination and cross-examination and hear all the evidence before the court.

2. However, Mr O’s evidence of his observations of the personalities of both parents and about their conflict and the requirement for supervision was helpful. His views about the personalities were consistent with those of Dr D.

Evidence of Mr B

1. Mr B is the Principal of [H] School. The children attended the school for one term at the end of 2008. Mr B said that he recalled each one of the 160 pupils in the school at that time, and he could recall speaking with Ms J from the DHS about the children.

2. The case note dated 14 October 2008, prepared by Ms J, an employee of the DHS, indicated she received a telephone call from Mr B, who informed her that [X] had made a disclosure to staff that her father “does rude stuff” to her. The note stated:

   [Mr B] stated that when SOCAU interviewed the children at school a few weeks ago, it was obvious that the older boy was “pumped full of information” over the three or four days prior by his mother.[13]

   [13] Exhibit “F4”

3. Mr B was present during the interviews of [B] and [X].

4. During cross-examination, Mr B did not agree that he told Ms J that the children were “pumped full” with information. He believed that he may have said that [B] had been coached.  He said that he was surprised that [B] was so articulate in the interview.  He formed that opinion as a result of his previous conversations with [B], which did not match up with his conversation in the interview.

5. [B] was at the school for about ten to twelve weeks.  At the time of the interview Mr B had known him for about three weeks.  He had spoken to him in the classroom and in the schoolyard.  He had spoken with him between five and ten times.  The conversations were brief, but he had expected that a boy of [B]’s age would have been more articulate.

6. Mr B was of the view that [X] was also more articulate than usual during the interview. He said that generally [X]’s sentences were two to three words long. He noticed that she made a constructed sentence during the interview. He said he told Ms J that he thought that [X] had been coached.

7. Mr B’s opinion that the children had been coached was not shaken during cross-examination.

Evidence of Dr D

1. Dr D is a consultant psychiatrist. He prepared a report dated 8 May 2009 in respect of each party’s mental health.

Evidence of Dr D regarding the father

1. Dr D reported that the father did not have a psychiatric history. He appeared to be rigid and an inflexible man. He impressed as functioning in the borderline to mildly intellectually disabled range.  He focused his attention to the mother and her “lies”.  He denied all aspects of concern raised by the mother in her affidavit.  He did not concede that he had been a participant in the conflict with the mother. He accused her of being a volatile woman with markedly unstable and unpredictable moods and behaviours.

2. Dr D reported that the father did not understand the purpose of the assessment. He resented the session because he felt blamed. He stated, “She made me out to be a bad person.”  He refused to attend any further sessions.  He has an education history that suggests that he may have an intellectual disability.  He denied the specific allegations that had led to the involvement of the DHS and Victoria Police.  He was adamant that there had been no substantiation of the mother’s allegation.  He did not know the ages of his three children.

3. The father did not want any further contact with the mother in the future.  He remarked, “As far as I am concerned she doesn’t exist.”

4. During cross-examination, Dr D was asked whether the father’s personality is capable of change. He answered that it is possible, but his intellectual disability limits his capacity. His insight into personality functioning is limited. He is not insightful or motivated. His intellectual impairment limited his emotional intelligence.

5. Dr D said that the father had an irritable, prickly manner and he sensed that he was not willing to be open and forthcoming.  He was not confident that the father was being authentic with him.  He was of the view that it is highly unlikely he will change.  He indicated an entrenched pattern of engaging with people and dealing with life.

   
   

   Dr D said that he could not expect massive changes as a result of therapeutic counselling in a group situation. He would need individual therapy as well.

6. The father may not have the capacity to understand and inhibit his impulses to make negative comments about the mother. Of great concern to Dr D was that he has not shown any concern about the children by making negative comments about the mother in front of them.

Evidence of Dr D regarding the mother

1. Dr D reported that the mother has a limited formal psychiatric history.  She reported a history of depression, which was experienced in the context of a markedly dissatisfactory relationship with the father. She responded to an antidepressant medication but her symptoms had only completely resolved since she separated from the father.

2. The mother described the father as being an abusive, unsupportive and emotionally reactive man, who was immature and incompetent. She was upset with herself for persisting with the relationship, having realised that it was doomed from the beginning.

3. The mother appeared mildly distressed and upset when she reflected upon her relationship with the father. She was particularly distressed that the father had acted inappropriately in the company of the children. She was adamant that he had been sexualised in his actions when in the company of [X].

4. During cross-examination, Dr D was asked about the mother’s attendance at counselling. He said that she attended to address issues about her relationship with the father and that she focused on the relationship. Nonetheless, Dr D’s psychiatric report in respect of the mother indicated that she raised her concerns with Dr D. Dr D said that, if she had observed the behaviours and had referred to them since [X]’s birth, he did not get that impression from her. Instead, his impression was that her concerns arose around the time she made the notification, rather than being historical.

5. Dr D was of the opinion that the mother and the father have “incompatible personalities with traits that lead to frequent conflict”, and that, “[the mother] is likely to find any communication with [the father] difficult.”

6. Dr D’s evidence was not challenged. His evidence was of assistance to the court, and I accept it.

Evidence of the [F] Children's Contact Service

1. There were two sources of evidence from the [F] Children's Contact Service (“[F]”) before the Court:

   ·A bundle of [F] reports, tendered as an exhibit by the ICL.

   ·Affidavit and oral evidence of Ms C.

The [F] Children’s Contact Service reports

1. At the hearing of this case, the Independent Children’s Lawyer tendered a bundle of [F] reports dated between 1 May 2010 and

   
   

   1 May 2011 (“the [F] reports”).[14]  The [F] reports were prepared by a “Key Worker” of [F] from the written notes of [F] employees at the time of each supervised contact time.  The Fairground reports were tendered by consent.  Both parties were cross-examined on the [F] reports.

   [14] Exhibit “ICL3”

2. The first report covered the visits of 30 January 2010, 20 February 2010, 6 March 2010, 17 April 2010 and 1 May 2010. In the recommendations section, it was reported that:

   The developing relationship between [the father], [Y] and [Z] is evident and demonstrated by their excitement at arriving and their haste in running to the children’s room to greet [the father]. Further development of [the father’s] capacity to monitor and direct the behaviour of [Y] and [Z] will enhance this relationship.  [F] has needed to provide a high level of support in the relationship between [the father] and [X].  This is demonstrated by [X]’s initial reluctance to see [the father] and her ongoing reluctance to engage in contact or activities with him…

   [The mother] expressed an acceptance of [F] from the time of the intake interview and has continued to be supportive of the children attending [F] to spend time with [the father] in a supervised environment. [The mother] has not been heard to denigrate [the father] in any way and presents the children appropriately.   At the end of each visit [the mother] has been open to hearing children discuss their time with [the father] and is encouraging. [The mother’s] ongoing concern has been that [X], [Y] and [Z] continue to be supervised at all times when in the presence of [the father].  [The father], although initially reluctant to be at [F], has accepted the role of the workers and is open and respectful of their presence in his visits.  Early on in the visits [the father] spoke negatively of [the mother] during time with his children, blaming her for the lack of relationship between himself and [X], [Y] and [Z].  The workers have need to refocus [the father] during his visit to his visits and to reminding him of the cease all negative talk in front of the children.  [The father] has been able to take this on board and has attempted to modify his behaviours accordingly. 

   [The mother] told a worker when the worker tried to give her a bag of clothes from the paternal grandparents “No we are not accepting anything that comes from him. The visit is supposed to be for him to get to know the kids not to bring presents”.

   In the earshot of the children the mother and her husband made jokes about the father “pretending to read’ and sneeringly replying “If you put a car book in front of him he can read, he just pretends he cant”.

3. The second report covered the visits on 15 May 2010 to 30 October 2010.  The report of the visit of 26 June 2010 indicated that:

   It is evident from the children that [the mother] has instructed them that they are not to accept anything, including a bottle of water,  from [the father] and that if he gives them anything they are not bring it home with them.

4. The report of the visit of 24 July 2010 stated that:

   When the three children arrived they hesitated and looked at each other when the father had his arms out to give them a hug.  [Z] backed away and said to [the father] “Mum told me not to go near you.” Just prior to the end of the visit the worker went across to meet the mother to discuss the items of clothing received by the children.  The male worker remained in the children’s room with the father, the paternal grandparents and the children. The father began to verbally demonstrate his frustration at [the mother] stating “What is her problem?” He made comments like “she is a bitch”, “she is a real fucking bitch, I should go over there and kick her in head.” The statements were made in the children’s presence.  The paternal grandmother joined in stating “It’s her, she revs the kids before they come and this is what happens.”

   Ms G and the father discussed their belief that the children have a right to accept presents from their father and grandparents and that the mother should not have the discretion in this.  The workers attempted to encourage [the father] and [Ms G] from not entering into denigrating statements in relation to [the mother], particular in the hearing of the children. [Ms G] reacted by saying “What about her?”

5. The visit of 2 October 2010 – it was reported that:

   When it came say to say goodbye [X] hid herself behind the female worker saying “no he can’t come near me”. [The father] gave a [Y] and hug but [Z] would not come over to [the father] and refused any goodbye affection. This prompted [Ms G] to say “she gets in their ear” referring to [the mother].  [X] walker to the open door of the car and told her mother “I didn’t let him kiss me” and the mother did not respond [X] repeated again “Mum I didn’t let him kiss me” and the mother nodded her head to acknowledge that she had heard [X].

6. On the visit of 18 December 2010 it was reported that:

   [X] refused to give [the father] a hug prompting [Ms G] to say “Well will have find ourselves another little girl to spend time with and give us hugs”…on returning to [the mother] the first words [X] said were “I didn’t let him hug me,” and [the mother] gave a little nod indicating that she had heard her.

7. The visit of 24 July 2010 introduced a change in attitude from [X] and [Z] and this was demonstrated when:

   [Z] told [the father] at the point of greeting “Mum told me not to go near you” and [X] taking a step away from [the father] and not allowing [him] to show her affection. There has been no further physical contact between [the father] and [X] during the following four visits.  [Y]’s relationship with [the father] has been constantly respectful and loving throughout the visits. [Z]’s overall behaviour has deteriorated in recent visits and have become challenging to contain for both [the father] and the workers. The overall impression of [F] staff is that [the father] genuinely wants and tries to facilitate a parental relationship with each of the three children…

   The high energy levels and the individual demands of the children create a barrier to [Ms G’s] and [her husband, the paternal grandfather’s] ability actively engage with the children or in being to physically support [the father] in spending time with them.  As such there is high dependence on the workers to physically support the children in their activities and being able to monitor and check the children’s behaviour and welfare where necessary…

   [The mother] presents the children as encouraging of them spending time with [the father]… however this has been somewhat negated by her open criticism of [the father] to workers and her unwillingness to allow the children to accept any gifts from him or the paternal grandparents other than for a child’s birthday…

   [The mother] has informed the workers at [F] that it is her intention to have the visits between [the father] and the three children stopped based an alleged act of sexual abuse perpetrated by [the father] with [X] prior to the involvement of [F].

8. The visit of 22 January 2011 stated that:

   [Z] said to the male worker “I can’t hug him…I am not allowed to have fun with him…and I can’t say stuff to him” [Z] and [X] would not engage with [the father].

9. The report indicated that the father was unable to contain some of his frustration and did not ‘shield’ the children from his emotional reaction. He stated to the workers that this was another indication to him of the mother’s bad parenting.

10. The report of 19 February 2011 indicated that:

    [Z] waved his hands to say no don’t come near me and said “no hugs, no kisses” and continued waving and ran behind the worker into the room. Reported that the father did not spend much time interacting with the children.  He spoke to the workers and asked questions and was prompted on a few occasions to interact with the children instead of talking to the workers.

11. The report of the 5 March 2011 visit indicated that:

    [Y] ran up to [the father] tapping at his arms for a hug and kiss.  [Z] ran up to [the father] with [Y] but stayed about 2 metres away from [the father] and said “no kiss” putting his hands up and running towards the doors.  [X] followed behind the worker walking a bit slower and also “no” and shook her head when [the father] asked for a kiss.  Near the end of the visit [X] did not want to give anything to [the father] at the end when packing up the toys and said “yuck” every time she was asked to go near [the father]. [X] continued to say “yuck” whenever [the father] approached or spoke to her.   When asked why she was saying this, [X] said it was because of [the father’s] teeth…

    The team leader spoke to [the father] about being more proactive with the children during his parenting time acknowledging that the children can be behaviourally challenged at times, [the father] agreed with the team leader acknowledging that the children can be full on at times and agreed that he would participate more actively in the session today.

12. The report of 30 April 2011 indicated that:

    [Z] said “I am not giving [the father] a kiss”. [X] and [Y] both walked by [the father] without demonstrating any affection and [the father] commented “They have been told not to talk to me. Have you got a kiss for dad?” Throughout the visit [the father] constantly tried to engage the workers in a negative conversation about [the mother] and the pending court case of 12 May 2011 and he indicated that he is refusing to go to [S] to continue supervised visits.  The workers constantly attempted to redirect [the father] back to engaging with the children and although he would return to watching the children in their chosen activities he again would return to negatively commenting, in front of the children, about [the mother]. [The mother] has applied to [S] Children's Contact Service with a goal of moving the supervision there once they have returned to Court on 12 May. On informing [the father] of this, [the father] responded that he was not going to go to [S] no matter what the Court decided.

13. It appears from these reports that there was a deterioration in the visits. The father and Ms G vented their negative opinions of the mother, often within the hearing of children. The mother influenced the children by instructing them not to accept anything from the father or go near him.

The evidence of Ms C

1. Ms C is a supervisor at [F] in Bendigo. She had supervised visits of the children with the father on numerous occasions. She prepared the [F] reports dated 1 May 2010 and 2 November 2010.

2. Ms C told the Court that [F] could continue to supervise the father’s time with the children in the short-term, but that there would be need to be an end-date.  [F] would support a period of three months, but nothing beyond that.

3. Ms C said that the children tried to prevent interaction with their father.  [X]’s reluctance to interact with the father has continued for around 9 months. [Z] withdrew his affection from the father in June or July 2010.  [Z] said he does not want the father to kiss or touch him and, he demonstrated avoidance behaviour.  Ms C agreed with Counsel for the father that the father has not behaved in a manner that would have caused [Z]’s behaviour.  [Y] was more enthusiastic about seeing the father.  He was warm and engaging with the father.  He accepted affection and sat at the table and talked with him.

4. Ms C tried to engage the mother about [X]’s attitude. The mother did not ask the children about what they did during the visits or whether they enjoyed them.  Ms C said that the covert message communicated by the mother, of which the children would be aware, was that she did not want to discuss the visits with them.

5. Ms C agreed with Counsel for the mother that the [F] reports contain numerous instances of the father being negative towards the mother in the presence of the children.  She agreed that this negativity has been followed by Ms G.  This has not changed from the beginning of the father’s time with the children at [F] to the current time.  They were negative about the mother in the hearing of the children.  Ms C agreed that mother also has been negative towards the father in the presence of the children.

6. The children are very busy children.  All the workers are exhausted at the end of the visits. The father’s parents are elderly and the grandfather is frail.  Ms C was concerned, because of the father’s personality and the boisterous characteristics of the three children, about him supervising the children on his own. She believed that his parents would be of little or no support because of their age.

7. The father did not pick up on cues as other parents would. [Y] received an award and told one of the workers, who congratulated him. The father made no comment, although he had not seen the children for eight weeks, and the award was of importance to [Y].

8. On 2 January 2011, [Z] said that he could not hug the father, that he was not allowed to have fun with him and could not tell him things.  Ms C said there was another occasion when one of the boys had lost his drink bottle and did not talk to the father about it.  [X] looked up and said that he was not allowed to talk about it to the father. On another occasion one of the children reported that their mother said that they were not allowed to tell the father about a trip. Ms C was of the view that [X] was acting under instructions from the mother, and that [Z] was picking up on that.

1. Ms C observed [X] and [Z] withdraw from the father over a period of time.

2. The behaviour of the children should be seen in the context of the mother’s allegations against the father and her attempt to limit the father’s time with the children. They were told by the mother not to accept gifts from the father, not to go near him, not to give him affection or give him information.

3. Mr O said that the mother was unhappy with the requirement that the children attend for assessment and that they see the father. She asked why the paternal grandparents were present, and suggested that it had not been scheduled for them to attend. Mr O said, “She was notably antagonistic about time occurring at all.”

4. The mother did not take an interest in the children’s visits to [F]. She did not talk with them about what they had done. Her behaviour sent a message to them that she did not want the visits to occur.

5. I am not satisfied that the avoidance behaviour exhibited by the children towards the father was demonstrative of their genuine feelings.  I consider that the mother has influenced the children. I place little weight on this behaviour.

Section 60CC(3)(b)

(b)     the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)     other persons (including any grandparent or other relative of the child)

1. The children have a close relationship with the mother.  She has been their primary carer since birth.

2. The father has tried to form a close relationship with the children; however, the mother has actively undermined him.

3. The children have only spent supervised time with the father since

   
   

   30 January 2010.  The Fairground reports indicated that, whilst on some occasions [X] has engaged with the father, more often than not she has been extremely reluctant to engage with him. Ms C observed that [Z] also demonstrated avoidance behaviour. I consider that this behaviour is as a result of the mother’s influence.

4. The father has a good relationship with [Y].

5. The children spend time with the paternal grandparents once each month at [F]. Reports have indicated that the children display similar avoidance behaviour when interacting with them. I consider that this is also due to the influence of the mother.

6. The children live with Mr F.  Little evidence was led in respect of their relationship with him.

7. The children live with their two older half brothers, [B] and [A], and a younger half brother [C]. They also live with Mr F’s two children, [D] and [E]. There is little evidence about the children’s relationships with [B], [A], [C], [D] or [E].

Section 60CC(3)(c)

(c)     the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The mother does not have the capacity and willingness to encourage a close and continuing relationship between the children and the father.  She has actively prevented the children from spending time with the father.  The children spent little time with him from October 2007 until he began spending regular time with them at [F]. As I have said, the mother has influenced the children against the father.

2. I have no doubt that, if the mother relocated with the children to Queensland, she would continue to make it difficult for the father to spend time with or communicate with the children. Until the commencement of the hearing she did not have a proposal for the time that they would spend with the father. At the hearing, she proposed telephone and Skype communication and supervised time at a contact centre.

3. The father does not have the capacity to encourage a close and continuing relationship between the children and the mother.  The long and acrimonious history of this matter means that he is bitter and hostile towards the mother.  It was the evidence of Dr D and Mr O was that it is unlikely that the father has capacity to change his beliefs.

4. The father was upset about the allegations of sexual abuse made by the mother.  He was upset about the fact that the mother moved to Darwin for several months, thereby preventing him from seeing the children.  He was upset with the requirement that the time he spends with the children occurs on a supervised basis.  It is understandable that the father was upset, however, he has not been able to put the interests of the children before his own. He continued to speak negatively about the mother in the presence of the children, even when counselled against it. His bitterness towards the mother has meant that he has behaved inappropriately towards her, towards the mother’s husband, and towards Mr N.  Even during his oral evidence he was unable to say anything positive about the mother.  He believed that the mother, the children, the Salvation Army, the police and the [F] workers were all against him.

5. Ms C’s evidence was that the [F] supervisors reported that the father was negative towards the mother in the presence of the children on numerous occasions. He has been negative over the course of the time he has spent with the children at [F]. Ms G has exhibited a similar attitude.

6. Dr D’s evidence was that, during his interview, the father focused his attention to the mother and “her lies.”  Dr D was of the view that the father may not have the capacity to understand and inhibit his impulses so that he does not make negative comments about the mother. Of great concern to Dr D was that the father had not demonstrated insight into the impact that his negative comments about the mother have upon the children, when those comments are made in their presence.

7. The evidence of Mr O was that the relationship between the parties was highly unlikely to change, as it is firmly entrenched and the parents have very rigid views about each other.

8. Given the above evidence, I am concerned that the father will not be able to refrain from making derogatory comments about the mother in the presence of the children.

Section 60CC(3)(d)

(d)     the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The likely beneficial effect of the children living in Victoria near [S] is that they will be able to continue to spend time with the father.

2. The children are settled at school and are doing well. Mr F is employed by [omitted], although he is not currently working due to a medical condition.  The evidence indicated that the family did not have any firm plans in respect of the planned relocation to Queensland.

3. In the event that the children relocated to Queensland, it is likely that the father’s time with the children will cease. He does not have a computer and is not technologically minded. He does not have the financial capacity to pay for the cost of travel to Queensland. The mother does not have the financial capacity to send the children from Queensland to Victoria. Relocation will mean that the paternal grandparents will also be unable to spend time with the children.

Section 60CC(3)(e)

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. There is a practical difficulty and expense associated with the children spending time with and communicating with the father if they move to Queensland. Neither parent has the financial capacity to pay for travel costs.

2. There is an expense for the father to travel from [N] to Bendigo.  There will be expense for him to travel to [S].

3. There are eight children in the care of the mother and Mr F. There is a practical difficulty for their family to travel from [S] to Bendigo.

   
   

   Mr F assisted the mother with the arrangement for supervised time at [F] by caring for the other children whilst she travelled.  He said that this caused difficulties for the family.  Each alternate weekend he has to drive to [omitted] for changeover for his children.  This meant that the family did not spend any weekend time together.  He said that it is also difficult to get the other children to their various commitments.

4. Counsel for the Independent Children’s Lawyer submitted that if the children are not required to travel to Bendigo, they may regard the time with the father as more positive. The mother’s negative attitude about the time has meant that the children have been influenced by this negativity.  If she were happier about the [S] time, this may flow to the children.

Section 60CC(3)(f)

(f)     the capacity of:

(i)     each of the child's parents; and

(ii)     any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The mother can provide for the physical and intellectual needs of the children.  She has not properly provided for their emotional needs. She has influenced the children against the father, thereby undermining his relationship with them. This reflects badly upon the mother as a parent and upon her ability to facilitate and encourage a close relationship between the father and the children.

2. I am not satisfied that the father can provide for the emotional needs of the children. He has continuously made negative comments about the mother, the primary carer of the children. Dr D expressed his concern that, in doing so, the father has not demonstrated awareness of the children’s feelings.

3. Ms C’s evidence raised concerns about whether the father can provide for the children’s physical needs without assistance, due to his personality and the boisterous nature of the children.  Additionally, the evidence contained in the [F] reports suggests that the father occasionally had to be directed by [F] staff to engage with the children.

Section 60CC(3)(g)

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. The father is illiterate. Dr D was of the opinion that he may have an intellectual disability. He is in receipt of a disability pension.

2. [X] has an intellectual disability. She requires the assistance of an aide at school.

3. Both [Z] and [Y] are young. They are boisterous and busy children.

Section 60CC(3)(i)

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother has not demonstrated a responsible attitude to parenting by actively undermining the children’s relationship with the father.

2. The father has not demonstrated a responsible attitude to parenting by continuing to make negative comments about the mother in the presence of the children.

3. Neither parent has behaved maturely towards each other in respect of parenting arrangements for their children. Neither of them has put the needs of the children before their own interests and needs. I intend to order that both parents attend a post-separation parenting course.

Sections 60CC(3)(j) and (k)

(j)     any family violence involving the child or a member of the child's family;

(k)     any family violence order that applies to the child or a member of the child's family, if:

(i)     the order is a final order; or

the making of the order was contested by a person

1. An intervention order was made on behalf of the mother against the father on 18 December 2007. On 5 June 2009 that order was extended for a period of two years. The orders were made in his absence. On 5 June 2009 Mr F obtained an intervention order against the father for a period of 12 months. The order was also made in the father’s absence.

2. I refer to my findings about other incidents of family violence earlier in these Reasons.

3. The father has attended an anger management program, Ongoing Change, since 22 September 2009. I am, however, mindful of Dr D’s evidence regarding the benefit of the Ongoing Change program.

Section 60CC(3)(l)

(l)     whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Neither party made submissions in relation to this factor. Parenting orders are never final and difficulties may arise, whichever parenting order is made.

Section 60CC(3)(m)

(m)    any other fact or circumstance that the court thinks is relevant

1. The evidence indicated that this was not a matter where it is in the children’s best interests to consider a change of their living arrangements. The mother has always been the primary carer of the children and she has a good relationship with them. The father does not have the capacity to care for them. 

2. Whilst the mother has demonstrated deficiencies as a parent, she is the parent better able to provide for the children’s needs.

3. The mother has an obligation to actively and positively promote the relationship between the children and the father, not to undermine it.[28] Accordingly, as I have said, I shall order that the mother attend a post separation parenting course, and shall make appropriate injunctive orders.

   [28] Stevenson v Hughes (1993) FLC 92-362

Section 60CC(4) and (4A)

1. These sections overlap to some extent with s.60CC(c) and (i). I have considered in detail already the failure of both parents to fulfil his or her responsibilities as a parent. I have considered what has occurred since separation.

Parental Responsibility

1. The presumption of equal shared parental responsibility does not apply by reason of family violence.

2. An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires genuine efforts to come to a joint decision.[29]

   [29] The Act, s.65DAC

3. “Major long-term issues” is defined in s.4(1) as follows:

   …issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s arrangements that make it significantly more difficult for the child to spend with a parent…

4. If the parties are incapable of making joint decisions, consulting and attempting to reach agreement in order to do so, it is unlikely to be in the best interests of the children to make an order for equal shared parental responsibility.

5. An order for sole parental responsibility in favour of a party means that the other party has no rights, responsibilities or authority in respect of major long-term issues for the children, save as expressly ordered.

6. The parents are hostile to one another. They are negative about each other in the presence of the children. They do not communicate, and in my view they do not have the capacity to communicate. The evidence of Dr D supports this conclusion.

7. I consider that it is in the best interests of the children that an order for sole parental responsibility be made in favour of the mother.  However, I will make appropriate orders that require the mother to keep the father informed about the arrangements for the children.

Conclusion

1. It is very unfortunate that the conflict between the parties has involved the children to the extent that it has. Both parties have failed to put the interests of their children before their own. They should adopt a more mature attitude in the future, and should realise that the best interests of the children can only be served by putting aside their anger and personal grievances. However, this may not be possible, given the limited capacity of the father and the entrenched attitude of the mother.

2. I am not satisfied that it is the best interests of the children to relocate to Queensland. They are settled at school in [S]. They will not spend regular time, or, more likely, any time with the father if they relocate.  The mother has a freedom of movement, which is constrained by the responsibilities of parenthood and must give way to the best interests of the children.  I am not satisfied that the mother will facilitate time for the children with the father if a relocation to Queensland were to occur.

3. I am of the view that any order I make for the children to spend time with or communicate with the father on an unsupervised basis will put the children to an unacceptable risk of being exposed to further conflict between the parents and to the likelihood of the father denigrating the mother. The evidence was that the father is likely to be incapable of inhibiting his impulses to make negative comments about the mother in the presence of the children. It is unfortunate that his insight and understanding of the impact this can have on the children is limited. He has a rigid and inflexible personality and, according to Dr D, his intellectual disability limits his capacity. An order for unsupervised time is not in their best interests. The father will feel aggrieved about the supervision requirement, but I consider that this is in the best interests of the children.

4. The father has proposed that his parents or Mr Y supervise the time. The evidence was that the children are very busy and boisterous.

   
   

   Mr and Ms G are elderly, and Mr G is frail. It is the opinion of Mr O that a skilled supervisor would be needed due to the conflict between the parents and the father’s inability to refrain from speaking negatively about the mother. I agree with the assessment that a skilled supervisor is required for this family. There was no evidence that

   
   

   Mr Y is skilled or experienced. Neither he nor Mr and Ms G are appropriate supervisors in the circumstances.

5. The requirement for supervision means that the time will have to occur at a contact centre with skilled supervisors. The amount and frequency of time the children will spend with the father will be constrained by the requirements of the contact centre.

6. The evidence was that [F] will not provide supervision indefinitely. Counsel for the Independent Children’s Lawyer submitted that the [B] Children's Contact Service in [S] should be the place where time occurs. He made enquiries and indicated that the Centre is able to supervise indefinitely, depending on the particular case. The mother has registered at the [B] Children's Contact Service. The time proposed by the Independent Children’s Lawyer was each alternate weekend on either Saturday or Sunday for a period of up to four hours. This time will enable the children to have a relationship with the father and ensure that the children are not at risk of emotional harm by being exposed to the conflict between the parents. I consider that this time is in the children’s best interests.

7. The evidence indicated that, despite his inability to move beyond the parental conflict, the father was motivated to have relationships with his children. His willingness to pursue the relationships led him to actively engage in whatever was necessary to spend time with them. He did not give up pursuing time with them.

8. Counsel for father indicated in her closing address that her written instructions were that, contrary to his oral evidence, the father will not attend the [S] Children's Contact Service. She submitted that he will be unable to forget that the mother has made allegations against him.

9. Notwithstanding the submission of his Counsel, I consider that it is probable that the father will want to continue to spend time with the children, so that he can continue his relationship with them.

10. The [Ms Kopek] family have been put under pressure with the travel from [S] to Bendigo. There are eight children in the care of the mother and Mr F. They are required to take them to sporting activities during the weekend.  Mr F gave evidence of the difficulties faced by the family as a result of the requirement to travel to Bendigo.

1. The father will be required to travel from [N] to [S]. He has transport. He does not have any children in his care. He is not employed, so he should have the time to travel.

2. In my view, the period of supervised time should continue indefinitely. The father would need to demonstrate an insight into the impact of his attitude towards the mother before the Court could consider discharging the requirement for supervision. If this is addressed in the future, the father would not be prevented from making an application to the court to discharge the supervision order.

3. I acknowledge that long-term or indefinite supervision at a children’s contact centre is undesirable. I refer to the cases of TF & JF & Children’s Representative[30], W & W[31] and Moose & Moose[32].

   [30] (2005) FLC 93-227

   [31] (2005) FLC 93-235

   [32] (2008) FLC 93-375

4. In TF & JF & Children’s Representative [33] May J held that whilst the evidence may support an order for long-term supervised time, “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests…”[34] In that case, Her Honour held that the evidence supported a view that the children were at an unacceptable risk if they spent time with the father on an unsupervised basis. However, Her Honour further held that, “whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”[35]

   [33] Op Cit

   [34] Ibid at 79,755

   [35] Ibid

5. In W & W[36] their Honours Warnick, May and Boland JJ addressed best interests of the child in cases where long-term or indefinite supervision is appropriate at 79,910 and following:

   114. Further we note it is not always possible to provide for appropriate supervision particularly if a children's contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children's contact centres accredited by the Commonwealth Department of Family and Community Services recognise that ``long term supervision may not be in a child's best interests'' and place emphasis on the need to move to ``self management'' by parents and others availing themselves of the present restricted services.

   115.  We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

   [36] Op Cit

6. An order for indefinite supervised time at a children’s contact centre will mean that the time the children spend with their father will be constrained. It will, by necessity, take place on terms dictated by the [B] Children's Contact Service. The children will lose the benefit of participating in daily routines with the father. They will lose the benefit of being involved in sporting or extra-curricular activities with him. Such an order will, to some extent, frustrate the development of a meaningful relationship between the father and the children. However, in my view, the evidence is such that the additional considerations set out in s.60CC(3), and in particular the conflict between the parties, and the need to protect the children from emotional harm, outweigh the primary consideration that the children enjoy the benefit of a meaningful relationship with the father.

7. The Full Court of the Family Court of Australia has accepted that it is within the proper exercise of a trial judges’ discretion to make such an order. In Champness & Hanson[37] the Full Court referred to a number of authorities in which the Family Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern expressed in cases such as H v K[38], is that the parties are left with “no mechanism for moving forward” and that the parents seeking to remove the supervision requirement will have difficulty meeting the “changed circumstances” test in Rice & Asplund.[39]

   [37] (2009) FLC 93-407

   [38] [2001] FamCA 687

   [39] (1979) FLC 90-725

8. Counsel for the mother submitted that an order should be made that the father be required to sign all necessary documents to enrol at [B] Children's Contact Service and if he does not do so within twenty eight days, the mother be permitted to relocate with the children to Queensland. This order was sought by Counsel for the mother’s in her closing address.

9. I intend to order that the mother not be permitted to relocate the children to Queensland so that the father can continue to have a face-to-face relationship with the children. If the father does not take advantage of this opportunity, there is little point in restricting the mother’s freedom of movement. Accordingly, I intend to order that the mother be permitted to relocate the children to Queensland in the event that the father demonstrates an unwillingness to spend time with the children at the [B] Children's Contact Service by failing to enrol at the Centre within a period of forty-five days. This will give the father time to consider his position.

10. I have referred to the father’s evidence. I consider that it is likely that he will travel to [S] to maintain his relationship with the children.

11. It is appropriate that an order be made that the mother provide the father with no less than 28 days written prior notice of her intention to travel interstate with the children, and that she provide the father with makeup time. An order that the father shall not unreasonably withhold his consent is also appropriate.

12. I am satisfied that the orders I intend to make are in the best interests of the children.

I certify that the preceding three-hundred and twenty-two (322) paragraphs are a true copy of the reasons for judgment of Baker FM

Date: 3 August 2011