Gidu and Brown

FAMILY COURT OF AUSTRALIA

GIDU & BROWN

[2008] FamCA 671

FAMILY LAW – CHILD ABUSE—sexual abuse—issue of unacceptable risk hinges on determination of whether father sexually abused step-daughters—father denies allegations points to his acquittal in District Court—nothing inherently incredible about evidence in mother’s case— whether time spent should be supervised or unsupervised—Orders—mother to have sole parental responsibility—father to have supervised time at Contact Centre limited to 2 hours per fortnight—finding of unacceptable risk.

APPLICANT:

Mr Gidu

RESPONDENT:

Ms Brown

FILE NUMBER:

BRF

1422

2006

DATE DELIVERED:

30 June 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

15 – 18 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Martin appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT:

Carne Reidy Herd

COUNSEL FOR THE RESPONDENT:

Ms Carew appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT:

ReesLaw

COUNSEL FOR THE INDEPENDENT

CHILDREN’ S LAWYER:

Mr Bourke appeared for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT

CHILDREN’ S LAWYER:

Kennedy Spanner Lawyers

Orders

IT IS ORDERED THAT:

The children, S born … August 1998 and Y born … November 2000, live with the Mother.
The Mother have sole parental responsibility for the long term care, welfare and development of the children.
The Mother have sole parental responsibility for any short term decisions involving the care, welfare and development of the children.
The Mother do all things reasonably necessary including the provision of all necessary authorities and information to the children’s health care and education providers so as to enable the Father at his request and expense to obtain information touching on the children’s medical or educational history, status and progress.
The Mother inform the Father of any serious illness or injury to the children as soon as possible and to enable the Mother’s compliance with same the Father shall provide in writing a telephone number upon which he is readily available.
This Order shall act as a continuing and irrevocable authority allowing both parents to receive any and all information regarding the children’s health and/or welfare and authorises both parents to request and allow any school to provide reports at each parent’s expense as may be necessary.
The Father spend supervised time with the children at all such times as may be agreed between the parties but failing agreement at the T Children’s Contact Centre once per fortnight for a period of two (2) hours with the timing of such attendance to be as determined by the Co-ordinator of the T Children’s Contact Centre. The time spent by the Father with his daughters can be off site if accompanied by a T Children’s Contact Centre staff member.
The Father shall be responsible for all costs associated with attendance at the T Children’s Contact Centre.
The Father be at liberty to telephone the children on Monday and Thursday between the hours of 5.30 pm and 6.30 pm with the Mother to make either a landline telephone number or a mobile telephone number available to facilitate this communication.
The Mother make the children available on webcam if requested by email two (2) days prior by the Father in substitution for the telephone contact.
The Mother receive emails from the Father to be shown to the children via an email address provided by the Mother, currently the address being …@hotmail.com and the Mother will advise the Father if the email address has changed within forty-eight (48) hours of such change occurring.
The Mother facilitate the transmission or receipt of gifts, letters and cards from the Father to the children and vice versa (limited to not more than one (1) letter each week) and gifts or cards only on such occasions as birthdays, Father’s Day, Christmas and Easter to be sent by the Father to a post office box address to be supplied by the Mother in writing.
The Mother shall facilitate the transmission or receipt of gifts, letters, cards and telephone calls from members of the Father’s family to the children and vice versa (limited to not more than one (1) letter each week) and gifts or cards only on such occasions as birthdays, Father’s Day, Christmas and Easter and telephone calls at least once per month provided all such communications are appropriate.
The children be permitted to travel internationally thereby allowing for passports to be issued under section 11(b) of the Australian Passports Act 2005 without the consent of the Father.
The Mother shall provide a detailed itinerary at least twenty-eight (28) days prior to any such overseas trip, and the Mother shall return to her usual place of residence with the children following any such occasion of overseas travel.
The Mother shall facilitate communication via postal services (if practicable) and email (if practicable) for the duration of the trip.
The Father shall be permitted to telephone the children (if practicable) during this time at his expense.
Should the Father fail to maintain contact with the children as permitted by these Orders, for a period of twelve (12) months without a reasonable explanation, that the Father be restrained from relying on these Orders.
Each party keep the other informed of their residential address and contact telephone numbers and inform the other within forty-eight (48) hours of any change to those details.
That neither parent will denigrate the other, or the other’s family or partner to or within the hearing of the children and will use their best endeavours to ensure that no one else denigrates the other or their family or partner to or within the hearing of the children.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1422/2006

MR GIDU

Applicant

And

MS BROWN

Respondent

REASONS FOR JUDGMENT

“The substance of the allegations are fanciful” (refer paragraph 19 of written submissions by Counsel for the Father).
“There is nothing inherently incredible about the evidence in the Mother’s case.” (refer paragraph 23 of written submissions by Counsel for the Mother).

ORDERS SOUGHT

Applicant Father

The Father (Mr Gidu) seeks orders in the following terms (in summarised form):
“1.An order for equal shared parental responsibility for any long term issues for the two female children aged 9 and 7.
2.Each parent have daily parental responsibility for the children for such periods that the child or either of them live with or spend time with that parent.
3.That the children live with the Mother.
4.The Father spend time and communicate with the children at all times as may be agreed in writing and failing an agreement then at least as follows:
(i)for a period of three months from 9.00 am to 4.00 pm on the first Saturday of the month with such time to be supervised by the paternal grandmother with handovers to be at the [T] Contact Centre;
(ii)for a period of six months from 9.00 am to 4.00 pm on the first Saturday of each month with such time to be supervised by the paternal grandmother with handovers to be at [R];
(iii)on the first weekend of every month from after school Friday to 5.00 pm Sunday with the Father to collect the children from school at the commencement of the Father’s time and the Mother be responsible for collecting the child from the Father’s residence;
(iv)commencing in 2009 for one half of the Christmas school holiday periods.
5.The Father be at liberty to communicate with the children by telephone at all reasonable times and at least at the following specified times - -
6.That the Father do all things necessary to attend upon [Ms B] (psychologist) for a period of six months from the date of these Orders and comply with all treatment to seek directions from Ms [B], including the taking of any medications and that this order is authority for the Independent Children’s Lawyer to obtain a report from Ms [B] as to the Father’s mental health after six months from the date of these Orders.
7.Forthwith the children are known and referred to as and by the surname of [Gidu].”
Thereafter there are various orders sought in general terms such as each party keeping the other informed of any change of address or contact details, non-denigration clauses and the like.

Respondent Mother

Amended Orders (handed up during the course of final submissions on 19 June 2008) sought by the Mother (Ms Brown) are as follows:
1.That the children live with the Mother.
2.That the Mother have sole parental responsibility for the long term care of the children.
3.That the Mother do all things necessary to provide information to the Father concerning the children’s health and educational progress.
4.The Mother inform the Father of any serious illness or injury.
5.That the Father spend supervised time with the children as agreed but failing agreement at the [T] Contact Centre either once per fortnight on a Saturday morning for two hours or once per month on a Saturday morning for four hours with the Father to forthwith advise the Mother of his intentions in this regard. The visits to be off site if accompanied by a [T] Children’s Contact Centre staff member with the Father to be responsible for costs.
6.Provision for telephone contact Monday and Thursday between 5.30 pm and 6.30 pm.
7.Provision for the Father to have communication via webcam.
8.Provision for the Father to forward emails.
9.The Mother to facilitate the transmission or receipts of gifts, letters and cards from the Father to the children (and vice versa).
10.The Mother to facilitate the transmission or receipt of gifts, letters, cards and telephone calls from members of the Father’s family.
11.The Mother seeks orders in relation to the change of name in the following terms:
(a)Henceforth exclusively use the name “[Brown]” as the surname of the children of the marriage, [S] and [Y], formerly known as [Gidu] and also known as [Brown];
(b)Forthwith do all things necessary, individually and jointly including making application and executing documents, to seek the alteration of the registration of the name of the said children on the register of births in the State of Queensland, from the surname “[Gidu]” to the name “[Brown]”;
(c)In the event that the Father fails to comply with the preceding subparagraph a Registrar of the Family Court of Australia is hereby authorised to sign any documents on the Father’s behalf.
12.An order for the issue of passports to allow the Mother to travel overseas with the children subject to certain conditions.
13.Should the Father fail to maintain contact with the children as permitted by these Orders for a period of twelve months without reasonable explanation the Father be barred from relying on these Orders or commencing fresh parenting proceedings to re-establish the time he spends with the children.”
The matter proceeded before me over four days from 15 April to 18 April 2008 inclusive with final submissions taken on 19 June 2008.

WITNESSES

Father’s Case

In the Father’s case there were two witnesses; the Father and his partner Ms D.

Mother’s Case

In the Mother’s case the Mother gave evidence together with her adult daughter, E Brown and a friend of E’s, Miss M. Reliance was also placed on an affidavit of her former husband, Mr M Brown. He was not required for cross examination.

Independent Children’s Lawyer’s Case

Professor N, psychiatrist and Mr C, psychologist.

BACKGROUND FACTS

The Mother was previously married to Mr M Brown. From that relationship there were three children; E (18), H (17) and U (15).
The Mother separated from Mr Brown. Thereafter she formed a relationship with the Applicant. They married in December 1996. There were two daughters born of that relationship; S born August 1998 now aged 9 years and Y born November 2000 now aged 7 and a half years.
In February 2003 the parties separated when the Mother telephoned the Father whilst he was working in northern Queensland and informed him the marriage was over. The Mother raised allegations that the Father had sexually molested her eldest daughter E.
In July 2003 the Father commenced proceedings in the Federal Magistrates Court and shortly thereafter an Independent Children’s Lawyer was appointed.
In October 2003 consent orders were made reducing supervised contact to once per month. Prior to that from July 2003 there had been an order in place for contact of two hours per fortnight.
In November 2003 the Father was charged by the Queensland Police with nine counts of sexual offences against E and H. The Father denied the charges and entered pleas of not guilty.
In the intervening period all contact ceased between the children and their father. As I understand the situation this was on the advice of the Father’s legal representatives (refer Mother’s affidavit – annexure MB7).
On 24 May 2005 the Father was acquitted in the District Court in T of all charges by Jury verdict.
Family Reports were prepared by Mr C on 2 December 2005 and 26 November 2007. An earlier report dated 21 September 2003 had been prepared by Professor N. At the request of the Mother, Professor N wrote a second report dated 21 March 2006. There were no further interviews conducted for this report. The second report was directed more at answering queries raised by the Mother.

MATTERS TO BE DETERMINED

Essentially the issue to be determined is whether the Father’s time with his daughters should be supervised or unsupervised. If it is to be supervised, is it to be supervised at a Contact Centre or by his mother or some other person and, if so, then who?
The primary consideration in a determination of whether time spent by the children with their father should be supervised is whether there is an unacceptable risk to the subject children in seeing their father on an unsupervised basis.
The issue of unacceptable risk largely hinges on a determination whether the Father has sexually interfered with his step-daughters. The Mother says there is an abundance of evidence to this effect. The Father denies all allegations made and points to his acquittal on criminal charges in the District Court.
A further consideration is whether his time with the children should be supervised on account of the Father’s inappropriate conduct with the children from time to time. Again the Mother asserts and the Father denies.
I propose to briefly summarise the evidence of each witness and make some observations in relation thereto.

WITNESSES

The Father

In his case the Father relied on two affidavits affirmed on 29 February 2008 and 1 April 2008. The Father is 35 years of age. The parties initially resided in country New South Wales after they met in 1996. They moved to T in the year 2000 shortly prior to the birth of their second daughter, Y. Separation was on the 27 February 2003.
In his first affidavit the Father deposes to one period of unsupervised contact in March 2003 after the date of separation. In paragraph 21 he says:
“21.Between March 2003 and my acquittal I did not see the children at all because a no contact order had been made by the Family Court.”
I accept submissions made by Counsel for the Mother (refer written submissions paragraph 32(h)) that this assertion by the Father is not a true reflection of what actually occurred. There were orders in place for supervised time but the Father elected not to avail himself of such opportunities to see his daughters.
At paragraph 31 of the same affidavit he states:
“31.A family report was prepared by Professor [N] on September 2003. Professor [N’s] report stated that in Dr [N’s] opinion he believed I was guilty of sexually abusing [E] and [H]. The report was prepared at the request of the Respondent’s lawyers.”
As I understand the position Professor N’s first report was commissioned by the Independent Children’s Lawyer. That is what the report itself notes.
In perusing the affidavits of the Father I detect a consistent pattern of inaccuracies, some minor and some of greater concern. Some probably attributable to carelessness, others more likely to be deliberate.
The Father’s affidavit sworn on 1 April is largely an affidavit in reply to the Mother’s affidavit filed 19 March 2008.
On the issue of the Father’s credibility I shall touch briefly on the submissions made by the Mother’s Counsel in paragraph 32 of her written submissions.
By and large I accept the force of all of the submissions made in the various subparagraphs. In relation to subparagraph (f) it is noted in the course of his cross examination the Father denied that the video he took of E whilst she was in the shower area involved him filming E in the nude.
In his affidavit in reply (paragraph 28) the Father states:
“28.I recall that I taped over the bit where [E] was naked.”
The video has been tendered into evidence (exhibit 2). I am satisfied there is a brief moment where E can be seen naked. This portion of the tape appears to be out of context and appears to have been largely taped over.
In paragraph (m) Counsel notes:
“(m)The Father stated to Mr [C] in October 2005 that he would never smack a child (refer paragraph 38 of Mr C’s first report). However the Father conceded smacking his step-children by way of discipline and on occasion with the use of a belt”. (Refer oral evidence of the Father).
At paragraph 9 of the Father’s affidavit in reply he states:
“9.As to paragraph 11, I deny that I used to belt [H], [E] or [U]. I concede that I used smacking as a form of discipline. I only smacked the children on the bottom if they were disobedient or had done something wrong.”
I accept the force of the submissions made generally about the inconsistencies in the Father’s evidence as particularised in paragraph 32.
The Father corroborates Ms D’s account of events surrounding the return of her children to their father’s care. I am quite disbelieving of their account of these events concerning Ms D’s former husband’s behaviour in relation to violence. If he is as bad as portrayed by Ms D or the Father, why would Ms D’s allow the children to be placed in his care without a rigorous challenge being mounted?
If nothing else it gives me cause for concern as to Ms D’s ability to ever be an appropriate supervisor of time spent by the Father with the subject children. By the end of the hearing this was not being canvassed even as a possibility. In the course of her cross examination Ms D was quite emphatic that she believed in the Father’s innocence and she could not conceive that he would have engaged in the behaviour alleged against him.
In relation to the “Nutty Professor” incident; where a film of that name was being shown on television the most common reply by the Father in answer to questions surrounding the events was:
“I can’t recall.”
At one stage he let slip:
“It was on Channel 9.”
I find it difficult to accept he cannot recall his conversations with the children or recount his behaviour in relation to them yet could claim to recall the channel the film was being shown on. In making these observations I make full allowance for the fact the Father says he had consumed a considerable quantity of alcohol which may have had some impact on his ability to recollect events.

The Father gave evidence the marriage broke down because of financial reasons.
Annexure 3 to the Mother’s affidavit filed on 19 March 2008 is a letter from her then solicitors, Jones Leach & Hawley of the 4 March 2003.
The opening paragraph of that letter is in the following terms:
“Our client instructs that the marriage is irretrievably broken down following disclosures by the children, including children of our client’s previous marriage, that you have exposed the children, including the children of the marriage, to sexual matters of an explicit nature in circumstances causing our client to be fearful of the children’s safety and well being.”
Annexure MB(4) to the Mother’s affidavit is a letter dated 3 March 2003 from solicitors engaged by the Father. This letter actually predates the letter written by the solicitors engaged by the Mother. In the letter from the Father’s solicitors (first sentence paragraph 3) the following appears:
“We are instructed that [the father] left the matrimonial home in which you continue to reside at your request as a result of allegations made by [E].”
How the Father, who had not terminated the relationship, could assert that the marriage broke down because of financial reasons is difficult to comprehend.
Without going into any further detail at this point in time suffice it to say I formed a very poor view of the reliability of the evidence given by the Father.
Apart from the inconsistencies in what he said at various times above all else I am disbelieving of his evidence because the evidence of the Mother and her daughter is so powerfully credible.

Ms D

Ms D swore an affidavit on 3 March 2008. She says in paragraph 7 of that affidavit that all of her own children were with her until three months ago. This was clearly not the fact.
In October 2007 at the time of the preparation of the second report of Mr C both the Father and Ms D represented to the report writer that Ms D’s three children were residing with them (refer paragraph 45 for the Father’s version and paragraph 76 for Ms D’s version). I note that Ms D’s evidence was two of the children were returned to their father in late September 2007. The interviews for Mr C’s second report were conducted on 9 October 2007.
As I noted earlier my principle concern is that Ms D allowed the children to return to their father when he is portrayed in quite violent terms. Either way whichever version of events be correct Ms D’s account places her in an invidious position. I am cynical about the manner in which they have sought to demonise Ms D’s former husband but if their claims be correct it is astonishing that the children would be sent back with such little effort to obtain a recovery order or to somehow comply with the terms of the orders of the Newcastle Magistrates Court or even to seek to have the terms of the orders altered.
Ms D was to provide an updating affidavit prior to the hearing. I am cynical about the Father’s explanation for not supplying the Mother’s solicitors with the name of Ms D’s husband. Ms D deposes that she has no knowledge of the whereabouts of her former husband and her own children since about Christmas 2007 and accordingly is unable to take action to spend time with her children.
In paragraph 13 of her affidavit sworn on 3 March she deposes:
“13.My own children are always asking me when [S] and [Y] are coming down to spend time with them so I expect our extended family will blend well.”
I can place little reliance on the evidence of Ms D. She was an apologist for the Father. She has no objectivity and no insight into the seriousness of the situation. Her evidence is internally inconsistent and generally lacks credibility.

Mother’s Evidence

The evidence of the Mother is contained in an affidavit sworn on 18 May 2008. The Mother gives details of angry outbursts by the Father on a regular basis (refer for example paragraphs 7, 8 and 9 of this document).
At paragraph 24 the Mother recounts that on 1 March 2003 E (who would have been 13 at the time) recounted events that had occurred when she was 10. The Mother says these events occurred in October 2000 (refer paragraph 24).
This incident was the occurrence when the four wheel drive vehicle became bogged and the Father had E sitting on his lap in an enclosed verandah at a nearby home.
The first incident then is said to be about October 2000.
The second incident was on 15 December 2000. Whilst the mother was away from the home the Father spoke to his step-daughters about sexual matters. He later claimed it was a harmless “birds and the bees” discussion. When the Mother raised this issue with the Father it was late at night. As a result of this discussion the Father woke the girls up at about 1.00 am and according to the Mother threw the computer out on the front lawn.
Attempts were made to discredit the evidence of the girls in that their recollection was what was thrown was a telephone/fax machine.
The girls were being asked to recall an incident several years earlier. E was only 11 at the time. She had been woken at 1.00 am and was witness to a heated discussion between her Mother and step-father.
I find no inconsistency in the version given by the Mother and daughter other than arising from an honest but mistaken recollection as to the precise item that was thrown out on the front lawn. It seems likely the Mother’s version was more accurate. The Father concedes he did place the computer next to the wheelie bin.
Having regard to the Father’s impulsivity and propensity to angry outbursts I find it more likely the computer was thrown but the conflict in the versions was to my mind much ado about nothing.
In paragraph 28 of her affidavit the Mother affirms that the next incident was in February 2002. This was the incident of filming E in the shower. In paragraph 31 the Mother relates a further incident in August 2002 at the L Hospital. After an altercation with medical staff at the hospital the Father returned home. The allegation is that he arranged for the two girls, E and H, to sleep in the main bed at a time when the mother was to remain at the hospital. In the morning after they had returned to their own bed he moved into E’s bed and covered her with sloppy kisses. He was also pressing her against his body.
In paragraph 33 of her affidavit the Mother deposes to an incident which occurred at K. The period the parties resided there was between 5 September 2002 and 26 February 2003. The Mother estimates the most likely date was late 2002. When she returned from a visit to the corner shop all three children related that the Father had played a game that involved him lying on top of them. The girls also complained of sloppy, sucking kisses all over their faces.
In paragraph 34 the Mother relates how the Father had rubbed the girls’ backs and around their abdomens and in doing so had pulled up their tops.
On another occasion (related by H after separation) the Father had directed her to take off her bra from under her tee shirt so he could massage her back but he also massaged the side of her breasts.
In about February 2002 whilst living at P (E would have been 12) the mother says she observed E lying with her head on the father’s lap. In late 2002 early 2003 she states she observed an occasion (refer paragraph 35):
“When [E] was lying across his whole body.”
It is clear from this observation and other evidence such as contained in the video that E was at times complicit in the inappropriate behaviour engaged in by the father. In the video tape (exhibit 2) the Father is seen following E around the house and at other times he is backing away filming whilst E approaches. The child is protesting but in an almost coquettish way.
In making these observations I am not in any way being critical of E. She was in the company of a man about 20 years her senior. She was still a child. He was a man prone to angry outbursts and given to impulsive behaviour. I do not find it necessary to assume a motive for E’s behaviour. It may be as a young girl in early puberty she was flattered by certain of the attentions she was receiving. It may be she was simply afraid of offending her step-father. The main focus for my consideration concerns the appropriateness or otherwise of the father’s behaviour.
The Mother says at paragraph 36 of her affidavit:
“36.[E’s] withdrawn behaviour was quite evident; [E] showed negative emotions towards [the father] – for example, her facial expression was that she was finding [the father] most offensive.”
Whilst this observation may be accurate on certain occasions (particularly if the Mother was present) I am not satisfied this was always the case.
I accept the evidence that E has been greatly affected by her step-father’s behaviour and has required counselling.
In paragraphs 42 to 43 the mother recounts an incident relayed to her by the girls when they were practising Tae Kwon Do in the downstairs area of the home. The father insisted that E change her tee shirt and whilst she went into an adjoining room to do so he was observed peeking over the wall. As she emerged from the room her evidence is that he made comments about the size of her breasts. I accept that the father engaged in the conduct alleged by E.
The Mother presented as a sincere woman, anxious to protect her children and do what is best for them. I would assess her as of a rather conservative nature. I have no doubt she has done her very best to be truthful in the giving of her evidence. She is a woman without guile – a relatively trusting and unsophisticated person. It was these qualities that caused her to be so slow to interpret the father’s behaviour for what in reality it was.

Affidavit of E Brown Sworn 19 March 2008

E was 7 when her mother married the father in December 1996. In paragraph 6 she refers to times when she and her siblings were the recipients of physical discipline at the hands of their step-father. At paragraph 10 she describes events in late-2000 surrounding the incident where the father’s 4 wheel drive vehicle became bogged.
In paragraphs 25 to 28 of her evidence she recounts a serious incident which occurred in December 2002.
In paragraph 33 she recounts her version of the “Nutty Professor” incident. She was of the view that it was on Channel 7 or Channel 10. It matters little what channel it actually was on.
At my direction E gave her evidence by video link from an adjoining Court room. Her affect was largely flat and her voice monotone. I expect this was primarily a form of defence mechanism as it was unpleasant for her recounting such events. She had had to do so on a previous occasion when her evidence had (seemingly) not been accepted.
I have no reason to disbelieve the evidence given by E. There was no attempt made to embellish her account of events. Her version of what occurred was consistent (save for relatively minor details) and if anything, understated.

Evidence of Miss M Filed 1 April 2008

This witness is 20 years of age. She was a friend of E’s and H’s through their Church group. She is about two years older than E.
In paragraph 6 of her affidavit she recounts an episode of being driven by the Father in his Mini at high speed and in a reckless manner.
At one point in the cross examination it was put to the witness that the wild driving as described by her in paragraph 6 of her affidavit did not occur. Objection was taken by Counsel for the Mother.
In his affidavit in reply of 2 April 2008 (paragraph 100) the Father affirms he has no recollection of the events recounted in this witnesses’ affidavit.
The balance of the witness’s affidavit is corroborative of the Father behaving in an inappropriate manner – pushing H’s face into his crotch – rubbing this 15 year old visitor down her shoulders and back. The conduct is of someone who has no regard for proper boundaries regardless of whether it may be described as sexually abusive. Miss M was impressive in the giving of her evidence. I have no reason to disbelieve her testimony.
It was not put to the witness that the events she recounts in paragraph 8 of her affidavit did not occur.
I shall canvass this aspect when dealing with submissions raised in paragraphs 16, 17, 18, 19, 20 and 22 of the Mother’s Counsel’s submissions namely that it was not put to the Mother, E or Miss M that their evidence was false or that they were otherwise mistaken.

Affidavit of Mr M Brown

The evidence of this witness is not relevant other than to note there is no suggestion the Mother at any time prevented him from seeing any of his children. He was not required for cross examination and his evidence is therefore before the Court on an unchallenged basis.

H Brown

This witness was 17 years old at the time of trial. No leave was sought to have the witness swear an affidavit or otherwise adduce oral evidence from her.
She had given a statement to the Police on 21 May 2003 (exhibit 7). There was also a Police record of interview taken some 17 months later (exhibit 8). During the course of final submissions reference was made to a transcript from pre-recorded evidence and the District Court trial concerning cross examination of H. Excerpts of the transcripts were tendered (exhibit 16) of the evidence of H, Dr … and Detective ….

Police Statement of H Brown

H’s account in the Police statement is corroborative of E’s account of certain events the two were witness to. The conduct engaged in by the father as recounted by H is similar in terms to those accounts given by E:
·    Coming into the bathroom with a video camera without knocking and at a time when the child was naked.
·    Rubbing her around the tops of her legs.
·    Touching her vagina outside her clothing and inside.
The record of interview was about 17 months after the statement given to the Police. It records two additional incidents of rubbing the side of her breasts whilst purporting to give her a massage.

Independent Children’s Lawyer’s Witnesses – Professor N and Mr C, psychologist in private practice in Brisbane

It is more convenient to refer to the evidence of these witnesses when considering the sexual abuse allegations.

Documentary Evidence

I do not find it necessary to refer in any detail to the various documents tendered into evidence.

Validity of Sexual Abuse Allegations

Professor N’s report was dated the 21 September 2003 approximately six months after separation. He was able to evaluate the parties and the children and had the opportunity to see the Father interact with his daughters, S and Y.
At paragraph 104 of this report Professor N observes:
“104.Neither [the father] nor [the mother] suffers from an Axis 1 Psychiatric Disorder. However [the father] manifests impulsivity, irritability, aggressiveness, fear of abandonment, suicidality, emotional lability and poor anger control. Without further information from his medical history, it is difficult to differentiate between a diagnosis of mixed personality disorder (possibly the outcome of childhood attention deficit hyperactivity disorder), bipolar disorder, or dysthymic disorder.”
In paragraphs 111, 112 and 116 of the same report under the heading “The Validity of the Allegations of Child Sexual Abuse” Professor N makes the following observations:
“111.Turning now to the content of the allegations, the following observations support the validity of [E’s] and [H’s] accounts:
·Their stories make sense, that is, they do not violate the laws of nature.
·So far as I can tell, the different elements of the two girls’ stories have been consistent over time and between each other. If the paediatric examination indicated genital penetration, it would further corroborate their accounts.
·Valid stories are not likely to be disclosed in a structured, chronologically organised manner, but piecemeal, as is the case (particularly with [E]).
·Valid statements are usually rich in detail. I did not press [E] to give details of what had happened to her since she had already been questioned and she was distressed by further interrogation. If the information gathered in the police investigation revealed rich detail it would tend to validate [E’s] account.”
I am satisfied the allegations made by E are rich in detail.
·“Idiosyncratic details concerning the perpetrator and the circumstances of the alleged abuse support the validity of an allegation. I do not have sufficient information to comment on this matter.”
I am satisfied E has provided idiosyncratic details concerning the perpetrator and the circumstances of the abuse. A textbook example is the “Nutty Professor” episode where the father was clearly under the influence of alcohol and the children’s observations reflect that.
·“Truthful witnesses are hesitant to disclose details and may even make tentative retractions. Once again, one would have to refer to the police investigation.
·The truthful child’s emotion while recounting the abuse is appropriate to the content of the story. [E] was anxious, fearful and embarrassed about the abuse. For that reason I did not press her. [H], a more confident child, exhibited no such dysphoria; however, she was adamant that she did not want further contact with her stepfather.
·The language and conceptual understanding involved in both children’s stories was appropriate to their developmental level. In other words, they did not use adult words or introduce advanced concepts that could have been derived from adult indoctrination.
112.In summary, the information I have is incomplete and my content analysis somewhat inconclusive; nevertheless, it is generally supportive of the validity of [E’s] and [H’s] allegations of sexual abuse.
116.I found [the father’s] description of the “videotaping” and “[E’s] top-off” incidents (paragraphs 2, 25, 42) were unconvincing. It is very hard to believe that [the mother] was part of horseplay in which [the father] videotaped his stepdaughter in the shower and his mother-in-law in the toilet. Furthermore, I found it difficult to understand why [the father] was “practicing martial arts” with his stepdaughters, why [E’s] top made him feel uncomfortable, and why the children would lie about his attempting to look over the wall to see [E] changing.”
I accept the accuracy of the observation made by the report writer and his conclusions arising from such observations.
In the final paragraph of the report at paragraph 121 Professor N observes:
“121.If the allegations of sexual abuse are indeed valid, what is the appropriate disposition concerning future contact between [the father] and his daughters? I see no reason why supervised contact should not continue. [S] and [Y] love their father and delight in his company. It is desirable that they continue to have contact with their father, even though their mother will be upset at such a prospect. However, given the uncertainty concerning the allegations of sexual abuse, unsupervised contact is not, at this time, appropriate. When would it be appropriate? Given the fact that [the father] has limited insight into his own personality, and in view of the fact that a free disclosure of the abuse would potentially expose him to a criminal action, it is unlikely that he would seek professional help for his inappropriate behaviour, if such behaviour there was. If the allegations of sexual abuse are found to be true, and he does not seek professional help, it is not clear to me when supervised contact would be appropriate.”
In his second report he has the opportunity to comment on Mr C’s first report. At page 5 of that report he concludes:
“If [the father] is regarded as having behaved in a sexually inappropriate manner towards his stepdaughters, the matter becomes more complex. In my opinion, it would not be appropriate to deny [the father] all contact with his stepdaughters. There is no evidence that he ever behaved in a sexually inappropriate manner to his biological children and they have a close and affectionate relationship with him. To cut him out of their lives would not be in their psychological best interests. The question then is whether supervised contact should continue or whether a graduated return to unsupervised contact should occur according to the schedule recommended by Mr [C]. In my opinion supervised contact should continue for the next two years. At that time consideration should be given to whether the graduated reunification plan recommended by Mr [C] should be implemented. I say this because the two children involved are still very young (5 years and 7 years); [the father] has an unstable personality and he has not been paying child support.”

I am satisfied that the conclusions reached by Mr C in his reports as to the likelihood of recidivism are deeply flawed. Accordingly I am cautious about the extent to which Professor N has relied on Mr C’s report in making the recommendations he does in his second report. As previously noted there were no further interviews between the publication of the first report and the compilation of the second report. For a person with the qualifications and experience of Professor N, it is not greatly relevant that the first report was commissioned and paid for by the Independent Children’s Lawyer whilst the second report was paid for by the Mother.

First Report – Mr C

The interviews for this report were carried out in October 2005. The Father had been acquitted of the criminal charges in May of that year. At paragraph 13 he notes:
“13.[S] and [Y] were excited and happy to see their father. They demonstrated no fear, anxiety or distress when in his company.”
I accept that this observation coincides with the observations made by Professor N two years earlier. It is quite clear that the children enjoy a close relationship with their father and are happy to interact with him.
Mr C carried out a series of psychological self report tests to assess the Father’s personality and psychopathology. The tests are as follows:
i.         Personality assessment inventory – PAI.
ii.        Parenting stress index – PSI.
iii.      Child abuse potential inventory – CAPI.
iv.Children’s trauma questionnaire – CTQ.
v.Depression anxiety stress scale – DASS.
vi.Adult attachment questionnaire.
At paragraphs 49 and 53 in his commentary on the father’s completion of the personality assessment inventory he notes:
“49.The PAI clinical profile was marked by significant elevations across several scales, indicating a broad range of clinical features and increasing the possibility of multiple diagnosis. Profile patterns of this type are usually associated with marked distress and severe impairment and functioning. Configuration of the clinical scale suggested that [the father] was angry, resentful, impulsive, and emotionally labile. He was likely to be extremely sensitive in social interactions and very quick to perceive rejection (real or imagined) by others – he likely feels that he has been betrayed by those close to him. This is likely to be part of a more general pattern of chronic maladjustment in social relationships marked by anxious ambivalence between bitterness and resentment on one hand and dependency and fear of possible rejection on the other. The bitterness is likely to surface readily and he may tend to lash out impulsively at those whom he feels has slighted him in some way. A combination of impulsivity, anger, and dysphoria could place [the father] at an increased risk of self harm or acting out behaviours - -
53.[The father] describes significant problems frequently associated with aspects of a manic episode. It appears that his clinical picture is primarily characterised by irritability. Others are likely to view him as impatient and hostile. As a result his relationships with others are probably under stress due to his frustration with the inability or unwillingness of those around him to keep up with his plans and possibly unrealistic demands. Grandiosity and abnormal levels of activity do not appear to be prominent features of the picture at this time.”
Under the Child Abuse Potential Inventory at paragraph 64 Mr C observes:
“64.[The father’s] physical abuse potential score was in the normal range. This result means he has no significant potential to perpetrate physical child abuse against his children.”
In relation to the administration of Static 99 this is an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. Mr C observes:
“The risk factors included in the risk assessment instrument are the presence of prior sexual offences, having committed a current non-sexual violent offence, having a history of non-sexual violence, the number of previous sentencing dates - - “
At paragraph 73 he observed:
“73.[The father] received a score of 0 out of a possible score of 10.”
At paragraph 77 Mr C records:
“77.[The father] has not been convicted of any criminal acts. Application of the Static 99 actuary risk assessment realised a score of 0; this indicated that [the father] represented no risk of sexual offence or recidivism.”
In the course of cross examination Mr C conceded there is no definitive psychological test in circumstances where no conviction has been recorded or where the offender refuses to acknowledge his behaviour. He conceded if an offender will not confront his behaviour there is a greater risk of recidivism.
In paragraph 125 under the heading “Summary of [the mother]” he notes:
“[The mother] was a moderately reliable interviewee. She maintained a high degree of vigilance about her children’s safety from [the father], and despite his innocence her belief that he remained a risk dominated the theme of her interview data.”
I intend to place no reliance on Mr C’s assessment of the father’s risk of re-offending. The Static 99 was to my mind an inappropriate test in the circumstances. The witness, somewhat surprisingly, seemed unable to differentiate between an acquittal in the criminal courts and an assessment of conduct applying a lesser standard of proof.
Because of his flawed methodology I propose to place no reliance on the recommendations made in Mr C’s second report. He appears to have based his assumption of the Father’s innocence on the letter from the Father’s solicitors in the criminal proceedings. That letter was annexed to the Father’s affidavit but I ruled it inadmissible at the outset of proceedings. He also relied on the Father’s account and the fact that it had been confirmed that the Father was acquitted at a Jury trial.
During the course of cross examination Mr C resiled from the recommendations made in the second report and confirmed the Father should continue to have supervised time with his daughters until he has treatment for his mental illness. I am inclined to accept Mr C’s assessment of the parties based on the Personal Assessment Inventory.
There was no indication that the terms of that test were in any way invalid.
At paragraph 50 of the Mother’s Counsel’s submissions it is submitted that this is a case where a finding that the Father has sexually abused E and H can be and should be made.
In the decision of M and M [1988] CLR 1235:
“The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to “regard the welfare of the child as the paramount consideration” (s.60D) … The cons is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue - - -.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question where the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences - - -.”
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.”
Whilst I can see merit for E and H’s benefit in having a Court vindicate their allegations the focus at all times remains on S and Y. The case against the Father that he has engaged in the conduct alleged is compelling. There is the evidence of what the Mother observed; there is the evidence of E and the evidence of H as contained in her sworn Police statement. There is the corroborative evidence of Miss M; there is the opinion of Professor N; there are my own conclusions based on my observations of the parties.
After separation the Father sent 36 red roses with a card to E and H. It was not sent to U, S or Y, children who presumably were at least equally distraught by the separation of the adults. I have to ask myself the question why would he do that – why send roses, with a card which reads:
“Dear [E] and [H] I am sorry. I love you and miss you – with all my love Dad xxxxoooo”
Why send a card in such terms only to those children? Why is he only apologising to those children?
I found the Father’s bald denials of all the allegations unconvincing in the extreme. Where he did admit to certain conduct but claimed it was innocent again he was unconvincing in his explanations.
However, mindful as I am of the caveat given by the High Court in the passage quoted above I propose to record only a finding of unacceptable risk.
In reaching this conclusion I adopt the careful detailed submissions made by Counsel for the Mother other than where she argues I should make a positive finding or contends for no time at all to be spent with the children.
It is no answer to say the Father has not engaged in such behaviour to his daughters to date.
His behaviour towards his step-daughters only commenced at puberty, an age S and Y are likely to enter shortly if that milestone has not already commenced.
The abuse is not at the highest end of the scale although in certain instances there were serious incidents. At other times the conduct was more sleazy or lecherous rather than physically abusive – conduct such as lying on top of the children in some form of play mode.
Without the surrounding context an episode such as that, of itself, might be overlooked. I do not find it necessary to grade the behaviour of the applicant. Suffice it to say it was unacceptable and has caused considerable emotional damage particularly to E. The records of the T Hospital contain reference to Community Mental Health notes concerning attendances by E (refer exhibit 12). They recount symptoms of being teary, having suicidal thoughts, difficulty sleeping, nightmares, poor appetite, lack of motivation, depressed mood, poor concentration and avoidant of social activity. It is extremely difficult to fake such symptoms. These are consistent with the symptoms commonly seen by a young woman who has been traumatised by the sexual behaviour of an adult.
It is the risk of this behaviour repeating itself which leads me to conclude there is an unacceptable risk to the subject children if the applicant was to have unsupervised time with them.
Even if I had discounted all of the evidence of a sexual nature I find the conduct engaged in by the applicant in many other ways was so inappropriate that to allow unsupervised time with his daughters would expose them to unacceptable risk. Particulars of such inappropriate behaviour include:
·Reckless driving – affidavit of Miss M and the Department of Transport records. I note that in his most recent speeding offence he was given a further traffic offence notice on the same day for burning rubber and accelerated away at high speed after being ticketed.
·Impulsive angry outbursts – the evidence of the Mother, E and various sections of the documentary evidence.
·Risk of physical discipline and/or angry outbursts directed towards the children.
·Not allowing the girls privacy when getting dressed or having showers.
·Offering the children rum at a very young age.
·Failing to recognise proper boundaries such as reflected in the evidence of Miss M.
The Mother’s first preference was for no contact although she did not go so far as to seek an order in those terms but it was clearly articulated on her behalf. To my mind it is not a case where all communication between Father and daughters should cease. I accept the subject children have related well to their Father when observed by Professor N and Mr C. These observations are generally confirmed in the Contact Centre’s records. It is unfortunate that by his conduct in other areas the Father has allowed the position to arise where he cannot be trusted to spend time with his daughters alone. The Mother, supported by the Independent Children’s Lawyer, seeks orders for supervised time only. That appears to be the safest course. It only remains to determine the nature of the supervision and an appropriate schedule for same.

Nature of the Supervision

At the commencement of the hearing an attempt was made by Counsel for the Mother to rely on an affidavit of the paternal grandmother to the effect that she would make herself available to be a supervisor. I rejected such a request on the basis that it was made too late with no prior notification.
The Father has not put forward an alternate supervisor although in the written submissions by Counsel for the Father the Court was being asked to accept the paternal grandmother sight unseen. The Father’s Counsel seems to engage in a reversal in the onus of proof. Her submissions would indicate that somehow there was an onus on the respondent’s side to establish that the paternal grandmother was not suitable as a supervisor. The appropriate mechanism is to put somebody forward as a supervisor. There was no satisfactory evidence before the Court to this effect other than the applicant purporting to relay what his mother had told him. In the circumstances of the late filing of the affidavit the Court was given no opportunity to assess the paternal grandmother – her attitude to her son’s conduct, her sense of independence and other relevant factors.
The result of all this is that for the immediate future the time would have to be supervised at the T Contact Centre. Again I have not been presented with accurate details of the cost of the Centre, times when it is open and the maximum time that could be ordered. I propose to accede to the Mother’s request that for the immediate future the Father’s time be limited to two hours a fortnight. The Contact Centre has been able to accommodate that regime in the past.
In the event that the Father is able to produce someone who would be an appropriate supervisor he may approach the Independent Children’s Lawyer who in turn may approach the Mother. In the event that the Mother unreasonably refuses to accept such a proposed supervisor the Independent Children’s Lawyer may find it necessary to have an assessment of him or her conducted by a social worker or psychologist – I suggest it not be Mr C.
It is a great pity more thought was not given to this aspect prior to the hearing as it could have been dealt with during the course of the trial.
In the event the Independent Children’s Lawyer has approved an individual as an appropriate supervisor after carrying out an assessment process and the Mother still objects the matter may be referred back to Court for determination on that issue. I would not anticipate the matter would take more than a couple of hours.
I propose to direct that any such listing be made before myself.
Professor N suggested that the issue of supervised time be reviewed after two years. That report of course was dated over 12 months ago. I am not minded to make an order in those terms. To my mind the first step for the Father to get out of the confines of a Contact Centre is to come forward with an appropriate independent supervisor so that he can see his daughters in a more flexible time frame and in a variety of environments. In the event that the Father seeks treatment and is responsive to such treatment he may seek at some point in time to have his time with the girls unsupervised. Whether a Court would allow such issue to be re-litigated is a matter to be determined on the evidence available at that point in time.
Because of the terms of these orders requiring the Independent Children’s Lawyer to be involved in an ongoing process I do not propose to discharge the Independent Children’s Lawyer for a period of six months. If the Father has not made application for approval of a supervisor in that time frame it will necessitate a fresh application to the Court. It is plenty of time for the assessment process to be done. At the end of six months unless the Court otherwise orders the Independent Children’s Lawyer will be discharged.

Equal or Sole Shared Parental Responsibility

The parents are completely unable to communicate. The Father will only have minimal time with his children. I propose to accede to the Mother’s application that she be given sole parental responsibility. I will put in place orders that the Father be at liberty to contact schools or medical practitioners on issues of health.

Failure to Put Father’s Case to Respondent’s Witnesses – The Rule in Brown v Dunn

In paragraphs 16 to 23 the Mother’s Counsel raises the issue that the Father’s Counsel failed to put to various witnesses that events had not occurred or that they were fabricating the allegations made.
At paragraph 39 of her submissions the Father’s Counsel asserts:
“39.The Father contends that the allegations made by the Mother are false.”
The cross examination of the respondent’s witnesses was significant in that it was not put to them in most instances that their evidence was false. They were not given the opportunity to respond to what was said to be the Father’s case.
I accept it was abundantly clear from the manner in which the criminal trial was conducted that the Father was denying the allegations made against him. Where evidence in chief has been given by affidavit I accept the rule in Brown v Dunn has less significance but it is still a time honoured practice.
I expect the fact the rule was not observed in this case was more the oversight of Counsel than from specific instructions by her client. As a matter of caution I have not drawn any adverse inference against the applicant for the failure to specifically put his case to the respondent’s witnesses.

Section 60CC

Having made the findings recorded above I do not deem it necessary to consider the individual factors set out in section 60CC.
Where I am prepared to find there is an unacceptable risk to the subject children of inappropriate sexual conduct by the applicant and inappropriate behaviour generally there seems little point in analysing the Mother’s attitude to the Father’s relationship with his daughters or contemplating the strength of the children’s wishes to see their father.
There is no suggestion other than the Mother is to be the primary parent. There is no criticism of her parenting skills. The only criticism made is that she has been resistant to the fostering of a relationship between the children and their father. Given her experiences in living with the applicant her reaction is not at all surprising.

The children have had little time with their father in the past five years with any such time being supervised. The Father could have availed himself of more time but for various reasons elected not to do so.
It is in the children’s interests to know their father and have an opportunity to continue to develop a relationship with him. Sadly, in their own interests, such time needs to be supervised.
I do not believe I would be assisted by a detailed canvassing of the specific factors set out in section 60CC. The position is governed principally by section 60CC(2)(b) namely the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Once an adverse finding is made in that regard as is the case here, there seems little point in engaging in an analysis of the other factors in the subsection.

Impact of Supervised/Unsupervised Time on the Mother

I accept that if there was to be unsupervised time the Mother would become extremely anxious and concerned for the wellbeing of her daughters.
Again if there was to be at some future point in time supervised overnight time the Mother may be affected emotionally. However the Mother has proved very determined and resilient in the past. I assume she has the support of members of her Church. The Mother has paid for her own legal representation making great sacrifices to do so. At a time when she has the care of five children in her household, three of whom are still under 18 years of age the Mother has undertaken further studies. I am confident that she would be able to adapt to any orders that may reasonably be imposed. I would be more than confident that she would be conscientious in complying with Court orders.

Change of Surname

In paragraph 88 of her submissions the Mother’s Counsel observes:
“88.The children have been known as [Brown] now for some five years. They live in a household where all other members are known as [Brown]. It would serve no purpose for the children at this stage of their lives to change the name by which they are known. Accordingly an order should be made that the children be known as [Brown].”
In the original orders as sought by the Mother, she sought orders that the Court direct the Department of Foreign Affairs to issue passports in the name of Brown. I am not at all confident the Court has the power to do so. The Department of Foreign Affairs must issue passports in the names in which the children are lawfully known. The Mother has now sought a detailed variation. The amended orders the Mother seeks are paragraphs 5 (11)(a) – (c) on page 3 of these reasons.
For the Father it was submitted (refer paragraph 63 of written submissions):
“63.The Mother disclosed that she changed the names of her three children of her first marriage from [Brown] to [Gidu] without any discussion or notice to [Mr M Brown]. She has done the same in respect of [S] and [Y] in changing their known name from [Gidu] to [Brown] without consultation with the Father. She offers no explanation for why she determines such a significant matter could be determined arbitrarily. It is her evidence that she discussed this change of name with [S] and [Y] and that they wanted the same name as the other children. She says she does not recall when this discussion took place. She states however in paragraph 43 of her affidavit filed 20 March 2008 that ‘the children have been known as [Brown] for several years’. [Y] is now only aged seven years and [S] nine years.”
The reference to paragraph 43 of the Mother’s affidavit filed 20 March 2008 is an incorrect reference.
The children are known to their friends and at school by the name of Brown. I understand the terminology is they are enrolled officially as “[Gidu] known as [Brown]”. I do not propose to make any order in relation to the issue of the children’s surname. There was insufficient evidence and insufficient attention given to this important issue.
The Mother said in the course of cross examination the medical records are in the name of Gidu as are their Medicare cards.
I do not intend to preclude the Mother enrolling the children at school effectively under the name of Brown. I am of the view it would be embarrassing for the children to have to revert to the name registered on their birth certificate at school. I am certainly not convinced by the evidence that there should be official change effected by a direction to the Registrar of Births, Deaths and Marriages. If in the fullness of time passports are to issue for the girls I do not believe it would cause great harm for them for such passports to issue in the name of Gidu. I am sure the Mother is able to adequately explain the situation to her daughters.
For the reasons given above I propose to make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 30 June 2008

[2008] FamCA 671

30 June 2008

Key Legal Topics

Areas of Law

Family Law