GILMORE & RAY

FAMILY COURT OF AUSTRALIA

GILMORE & RAY

[2013] FamCA 153

FAMILY LAW – CHILDREN – Magellan proceedings – With whom a child lives – Best interests of children – Allegations of child sexual abuse – Discussion of the meaning of unacceptable risk – Finding on the balance of probabilities that the father did not sexually abuse the children – Finding that there is no unacceptable risk of sexual assault of either child by father – Where it is not in the children’s best interest for the parties to have equal shared parental responsibility – Whether it is appropriate for the father to spend unsupervised time with the children – Where it is appropriate for the father to have three occasions of supervised time at a contact centre, then the time to be supervised by the paternal grandparents, thereafter unsupervised time with the condition that for overnight time the paternal grandparents also stay overnight.

Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA

M and M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368
N and S (1996) FLC 92-665
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Gilmore

RESPONDENT:

Ms Ray

INDEPENDENT CHILDREN’S LAWYER:

Coleman & Greig Lawyers

FILE NUMBER:

PAC

5353

2008

DATE DELIVERED:

15 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

29 & 30 January 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

James Maspero Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Paraska

SOLICITOR FOR THE RESPONDENT:

Dear Loneragan & Hogan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Othen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Warda

Amended pursuant to Rule 17.02 of the Slip Rule

Orders

That all existing orders in relation to the children N born on … July 2005 and C born on … June 2007 (“the children”) are discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the children spend time with the father as follows:
4.1on three (3) occasions at the P Town Contact Centre, or such other supervisory facility as the parties may agree in writing, at times and on dates to be nominated by the manager of that service
4.2thereafter each alternate Saturday from 10:00am until 5:00pm until the commencement of the 2013 Christmas school holidays, provided that all such time is spent under the supervision of either or both of the paternal grandparents and provided further that each of the paternal grandparents execute a written undertaking in a form approved by the Independent Children’s Lawyers in relation to the role and duties of supervisor prior to the commencement of this order.
4.3Thereafter:
4.3.1From 9:30am on Saturday until 5:00pm on Sunday during the 2013 Christmas school holidays
4.3.2each alternate weekend from 6:00pm on Friday until 5:00pm on   Sunday during school terms 2 and 3 commencing in 2014
4.3.3each alternate weekend from 9:30am on Saturday until 5:00pm on Sunday during school terms 1 and 4 commencing in 2014
4.3.4from 12:00 noon on the first Monday of the terms 1 and 3 school holidays until 12:00 noon on the second Wednesday thereof commencing in 2014   and
4.3.5from 12:00 noon on the first Sunday of the term 2 school holidays until 12:00 noon on the following Sunday commencing in 2014   and
4.3.6from 3:00pm on Christmas Day until 11:00am on Boxing Day in 2013   and
4.3.7from 12:00 noon on 3 January 2014 until 12:00noon on 20 January 2014 and each alternate year thereafter and
4.3.8from 3:00pm on Christmas Day 2015 until 12:00 noon on 11 January 2015 and each alternate year thereafter.
That the children sleep within the home of the paternal grandparents during all overnight stays with the father or alternatively that either or both of the paternal grandmother or the paternal grandfather sleep at the location of any overnight stay by the children with the father.
That the parties effect changeovers at L Town Police Station or such other venue as they may agree in writing from time to time.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5353 of 2008

Mr Gilmore

Applicant

And

Ms Ray

Respondent

REASONS FOR JUDGMENT

The Proceedings

Mr Gilmore and Ms Ray are the parents of two children:
N born in July 2005 (7) and
C born in June 2007 (5).
They agree that the children will continue to live with the mother and that she should have sole parental responsibility. They disagree strongly as to whether they should spend time with the father and if so, upon what if any conditions.
The applicant father sought to reinstate parenting arrangements prescribed in final orders made by consent on 9 August 2011. These orders provided that the children spend time with the father each alternate weekend from Friday afternoon until Sunday evening and for half of all school holidays. The orders contained provision for time with the father on special occasions and for changeovers at L Town Police Station.
By an Amended Response filed on 24 December 2012, the mother sought firstly an order that the children spend no time with the father. Alternatively she sought an order that the children spend two hours per month with the father at a contact centre in O Town or P Town. At the end of the trial the mother’s counsel submitted a Minute of Proposed Orders to the effect that the children spend time with the father once per month at a contact centre in O Town. The mother agreed to the paternal grandparents accompanying the father on these visits.
The Independent Children’s Lawyer (“the ICL”) proposed that the children spend time with the father at a contact centre “in the short term” and that the paternal grandparents then take on a supervisory role for six to twelve months. Counsel for the ICL submitted that unsupervised overnight time could then be considered, subject to the parties being granted a liberty to apply at that point.

Background

The father was born in 1968 and is now 44 years old. The mother was born in 1977 and is presently aged 35 years. They began to live together in April 2004 and separated in November 2004. From that time until January 2005 the mother lived with the maternal grandmother. She lived again with the father between January 2005 and February 2006, when the parties separated finally. The father admitted to the single expert, Dr R, that he “kicked her out with the child” at the time of final separation.
Following the birth of the parties’ son C the father stayed at the mother’s home each weekend. The relationship was volatile and characterised by frequent arguments. The mother alleged and the father denied that he subjected her to physical violence during this period. The father admitted in his oral evidence that he called the mother foul names, including “filthy whore”, “dirty slut”, “fuckwit”, “cunt” and “filthy skank”.
On 6 March 2006 the mother obtained an apprehended violence order against the father. His criminal record (exhibit 2) contained several convictions for breach of an apprehended violence order (“AVO”). The facts sheet prepared for a court event on 14 November 2009 indicated that some of these breaches consisted of text messages of a non-threatening nature, for example: “I miss u and the kids so much”.
It seems that the father did not understand that these text messages constituted breaches of the AVO. That opinion was expressed by a psychologist, Ms S, who interviewed the father and prepared a report dated 7 April 2010 to assist in his defence of these charges (annexure F to the father’s affidavit). Inter alia, Ms S wrote:
My opinion is that Mr [Gilmore] failed to recognise that any contact with his former partner is considered a breach of AVO. He believed that if it is not a threatening text message then it should not be considered a breach of AVO. He stated that he now understands that any contact with Ms Ray is considered a breach of AVO, and that if he continues to breach AVO, it will have a negative consequence on his access to see his children. I believe that he looks forward to seeing his children for two hours per month and continues to feel frustrated that he cannot see them more often. I believe that he is trying to implement and continue to practice impulse control techniques and other helpful strategies he has learned throughout the sessions mentioned above.
On 22 July 2009, the District Court ordered that the father attend an anger management course. He had appealed against the severity of a sentence of three months imprisonment imposed by the Local Court for two counts of breach of AVO. I infer that the “sessions” to which Ms S referred were components of the anger management course.
Records of the New South Wales Police Force (exhibit 7) suggested that not all of the father’s breaches of apprehended violence orders were of the relatively benign nature described by Ms S. These records also described an incident between the parties on 18 February 2006 which resulted in the father being convicted of an assault of the mother. I now refer to two COPS entries as examples of incidents between the parties.
The COPS entry for 18 February 2006 recorded that the father slapped the mother three times on her face and ear with an open hand and grabbed her around the throat. He was convicted of common assault; fined $500 and placed on a bond on 6 March 2006.
The COPS entry for 27 March 2006 described an incident between the parties during which the father said to the mother: “if you try and keep [N] from me I will kill you”. The father allegedly pulled the mother’s hair and closed a car door on her back. Police officers took photographs of a red mark on the mother’s back.
The father denied that he made this statement or that he “dragged [the mother] by the hair”. I found his denials implausible, given the number of complaints contained in the police records and his admission as to outbursts of temper in his dealings with the mother.
In 2008 the mother and children moved to F Town in the Central West of New South Wales. The mother formed a relationship with Mr M in October 2009. They lived together with the children between October 2009 and May 2012. At present they live separately but see each other daily and plan to marry in the near future. They have a daughter, E, who was born in July 2010 and is now two years old.
The evidence did not establish how much time the children spent with the father in 2009 and 2010. Dr R reported that the father told him that he saw the children for “two hours contact for twenty months” and “then second Saturdays for six hours at [L Town]”.
Pursuant to the final orders made by consent on 9 August 2011, the children began to spend overnight time with the father on alternate weekends. This arrangement ceased early in November 2011, when the mother alleged that the father sexually abused N.
The mother contended that N complained to her on 8 November 2011 that the father touched her genital area during an overnight stay. She reported this complaint to the then Department of Community Services on 9 November 2011. The child was interviewed by a Joint Investigation Response Team (“JIRT”) on 15 March 2012.
On 16 November 2011, JIRT officers took out an interim AVO against the father for the protection of the children. This order precluded any contact between the children and the father. The application for a final AVO was contested and dismissed on 29 June 2012. The children have spent no time with the father since 6 November 2011.
On 5 July 2012, police officers applied for an AVO against the father for the protection of the mother. In her police statement (annexure D to the father’s affidavit) the mother said:
[Mr Gilmore] does not know where I am living and we are currently going to family law court for arrangement in relation to [N and C]. As I am aware the AVO has expired I have great fears for my safety. I had recently applied for an AVO for the protection of [N and C] after an investigation involving sexual abuse against [N] from [Mr Gilmore]. This matter was recently dismissed at the Downing Centre in Sydney today. This gives me more concerns that [Mr Gilmore] will try and contact me and react violently or abusive towards me.
This application was dismissed after a contested hearing on 23 November 2012.

Approach to these Proceedings

In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. …
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
and at page 75:
…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 M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:
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) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood 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 whether 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.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)    the nature of the subject matter of the proceeding; and
(c)    the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S (1996) FLC 92-665:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing “unacceptable risk” of sexual abuse of a child.

The Evidence and Witnesses

The applicant father relied on the following affidavits:
1.Mr Gilmore (the father) sworn on 16 December 2012
2.Ms N Gimore (the paternal grandmother) sworn 16 December 2012
3.Mr O Gilmore (the paternal grandfather) sworn on 16 December 2012
All of these witnesses gave oral evidence in the case for the father.
The respondent mother relied on the following affidavits:
1.Ms Ray (the mother) sworn 19 December 2012
2.Mr M (the mother’s partner) sworn on 20 December 2012
3.Ms D (the mother’s friend) sworn 19 December 2012
All of these witnesses gave oral evidence in the case for the mother.
I had the assistance of a Magellan report dated 25 July 2012, which summarised the involvement of the parties and children with the Department of Family and Community Services. I had the benefit of a report, dated 5 November 2012, and oral evidence by the single expert, Dr R.

The Allegations of Sexual Abuse of N by the Father

In her affidavit sworn on 19 December 2012 the mother deposed as follows:
18.On 8 November 2011, [N] disclosed that her brother had tried to kiss her on or near the vagina. I immediately asked [C] ‘What the fuck! Where did you learn that?’ [C] did not reply but [N] said ‘He must have seen Dad do it to me because Dad does it to me in my sleep.
19.On 9 November 2011, I reported the matter to the Department of Community Services.
20.[N’s] allegation was subsequently reported to the Joint Investigation Response Team.
40.Prior to November 2011, although I was concerned about the Applicant’s tendency to violence, it never occurred to me that he was capable of sexually abusing a child. This was in spite of an incident when [N] was three years old and we were living in the Blue Mountains. One day, out of the blue, [N] said to me ‘Daddy touches me in the corner’.
41.I did not know what to make of this comment. I took [N] to the local GP who said that he could not confirm if anything had or had not happened. He advised me to let it go and I had dismissed it from my thoughts, that is until November 2011.
In her affidavit sworn on 1 June 2012 (exhibit 5) the mother deposed as follows:
15.I did not realise that [N] was experiencing problems during the course of her visits with the Applicant until November 2011 when the incident occurred which is described in the Notice of Child Abuse and Family Violence.
21.Between now and November 2011, there were about 3 occasions on which [N] attempted to talk to me about being touched by her father. This may not be the right thing for me to do but I find it unbearable so I ask her to stop. On one of these occasions, she was talking to me fairly normally about having attended the [H Town] Show with her father and the things they had done. She then said to me ‘that was the first time Dad touched me’. I did not let her go on much beyond that.
22.Prior to November 2011, although I was concerned about the Applicant’s tendency to violence, it never occurred to me that he was capable of sexually abusing a child. This was in spite of an incident when [N] was 3 years old and we were living in the Blue Mountains. One day, out of the blue, [N] said to me ‘Daddy touches me in the corner’.
The mother’s Notice of Child Abuse or Family Violence filed on 21 May 2012 stated:
On Monday 8 November 2011, the child [N] had just had a shower and gone back to her bedroom dressed in a towel. The mother then heard [N] scream and went running into the bedroom to see what had happened. By that time [N] was standing outside the bedroom in the hallway. The mother asked [N] what happened. [N] replied that her brother [C] had tried to kiss her ‘there’. While saying this, she bent over and pointed to her genital area. The mother then turned to [C] and said ‘where have you been learning this?’ [C] did not reply but [N] answered ‘he must have seen Dad do it to me because Dad does it in my sleep’.
On 25 July 2012 the author of the Magellan report wrote:
On 15 November 2011 officers from the Joint Investigation Response Team interviewed [N] in regards to indecent assault disclosures made to her mother. [N] also disclosed allegations in the JIRT interview; assault allegations were substantiated and [Mr Gilmore] was identified on Community Services data as a ‘Person Causing Harm’. An interim apprehended violence order was enforced on 16 November 2011.
A referral was made by JIRT officers to the Sexual Assault Counsellor at Health on 14 November 2011 for [N]. On 19 July 2012 [Ms Ray] presented at [E Town] Community Services Office and requested an interview. [Ms Ray] advised that the children had not seen their father since 6 November 2011 and [N] had said she ‘did not want to see her father’. [N] is currently having counselling with an approved children’s counsellor.
Community Services understands that the interim AVO against [Mr Gilmore] and protecting [N] was dismissed at court on 29 June 2012.
A transcript of N’s JIRT interview was annexed to the father’s affidavit. The child was six and a half years of age when the interview took place on 15 November 2011. These exchanges, inter alia, took place between N and a police officer during the interview:
Q53 So, [N], tell me what you’ve come to talk to me about today.
A.My dad.
Q54Your dad. And what about your dad?
A.He has been touching me in the rude parts.
Q55And what do you mean by rude parts?
A.My vagina.
Q56And when was the, when, when did that happen?
A.Um, all the time I go there.”
Q61O.K. So I know, [N], that you said that it happens all the time, but I’d like to talk to you about the last time that this happened, O.K. So I wasn’t there last Saturday when your dad touched you in the rude parts in his bedroom. Can you tell me everything from beginning to end about what happened? Try not to leave anything out, O.K.
A.I slept in there. When I was asleep he pulled my pants down and then he touched me there.
Q62Then what happened?
A.And then um, he went back to sleep.”
Q125So last Saturday night when you were in bed, what was dad wearing?
A.His shorts.
Q126        And anything else?
A.No.
Q138        Was daddy wearing anything else?
A.             No.
Q139O.K. All right. You happy to go to the next one? So you said that you were asleep and he pulled my pants down. Tell me more about that.
A.Um, and um, and he done nothing else.
Q140        [23.54] So tell me more about him pulling your pants down.
A.He, he touched my rude parts then pulled it back up, pulled my pants back up.
Q162One dancing show. O.K. So you said that you were asleep and he pulled your pants down. Tell me more about being asleep.
A.Um, like, nothing else.
Q163So how did, how, how did you know that he pulled your pants down?
A.‘Cause um, ah, ‘cause I just felt his arms going in my undies.
Q164        And where was [C] at that time?
A.In the bed, sleeping.
Q165        He was sleeping. How do you know he was sleeping?
A.‘Cause he goes to sleep before me.
Q173You climbed in on the bed. Yep. And who was there when you got in there?
A.Dad, [C] and me.
Q174        So were they already in the bed when you got in? Yep.
A.Yep.
Q175        So where was dad?
A.In bed already.
Q176        In bed. And whereabouts in the bed was he?
A.In the middle.
Q177        In the middle. And where was [C]?
A.At the closest to the door.
Q178        Closest to the door. So where did you get in?
A.At the other side where I lay.
Q192O.K. So you said earlier that dad touched you on the private parts. Was that before you went to sleep?
A.When I went to sleep.
Q193        When you went to sleep. So how do you remember that?
A.‘Cause he, I can feel somebody when they touch me on the rude parts.
Q194        So you said that, “I felt his arms go in my undies”.
A.Yep.
Q195        Tell me more about that.
A.I don’t remember any more.
Q196Mmm. So how were you in bed? You said that there was blankets on your bed. Were you under the blankets, over the blankets or something else?
A.Under ‘em.
Q197Under them. Yep. And so were you under them when dad pulled your pants down?
A.Yes.
Q198Yep. So tell me about him, how far did he pull your pants down?
A.Um, all the way.
Q199        All the way. So where did you, where were your pants?
A.Um, nearly off the, off my feet.
Q200[32.13] Nearly off your feet. So what do you mean by pants? You said that you were wearing shorts and undies. What did he pull down?
A.The shorts and undies.
Q201Your shorts and undies. O.K. And then you said that he touched you there on your rude parts. How did he touch you?
A.By putting his hands on my rude part.
Q202        So tell me more about that.
A.I don’t remember anything.
Q203        O.K. Could you see anything?
A.No.
Q204        So how do you know that it was your dad?
A.‘Cause I felt his hands.
Q205        Was anything said?
A.No.
Q206        And what did his hands feel like?
A.Um, smooth.
Q207        Anything else?
A.No.
Q208        And were you awake, asleep or something else?
A.Asleep.
Q209Asleep. So how, how do you know that it was him doing that when you were asleep?
A.‘Cause his hands are bumpy and smooth.
Q210        [33.31] O.K. And at any time did you open your eyes?
A.No.
Q211        No. O.K. At any time was anything said?
A.No.
Q212        No. O.K. And so what did he do with his hands?
A.I don’t remember.
Q213        O.K. So whereabouts on the rude part did he touch you?
A.My vagina.
Q214        Your vagina. O.K. And how, what did Your vagina feel?
A              I don’t remember.
Q215        Did he touch any other part of your body?
A.No.
Q216No. And what part of his hands did he touch your vagina with?
A.The fingers.
Q217        The fingers. Do you know which hand he used?
A.No.
Q218        Do you know which fingers?
A.No.
Q219        And what, what did his fingers do?
A.They, I don’t remember.
Q220[34.42] So what does your vagina do? What do you use your vagina for?
A.To wee with.
Q221To wee with. Yeah. So, so there’s a hole where we wee out, when you wee out of. So did he touch the inside, outside or something else?
A.Outside.
Q222        Outside. And how do you know it was outside?
A.‘Cause I feeled his hands go and touch the outside.
Q223        And what could you feel his hands doing?
A.Um, rubbing on my vagina.
Q224        So his hands were rubbing. Tell me more about the rubbing.
A.I don’t remember.
Q225        Was he doing anything else while he rubbed your vagina?
A.No.
Q248        How do you know it’s happened lots of times?
A.I, ‘cause I feeled him all the time I was there.
Q249        O.K.
Q250[38.39]So did he, did he touch your vagina with anything else but his hands?
A.No.
Q284Because you said it’s happened heaps of times, has [C] ever been there when it’s happened?
A.Yes.
Q285        Has he ever seen it happen?
A.No.
Q286        No. Have you ever seen dad do that with anyone else?
A.No.
Q287        No. And how did it make you feel when dad did that?
A.I don’t remember.
Q288        But how, how did it feel? How did it make you feel?
A.Um, sad.
Q292How did your pants, you said that your pants were pulled down to around your, to right down around your feet. How did they get back up again? Did they come back up or did they stay down there or something else?
A.Come, back up.
Q293        So how did they get back up?
A.Daddy pulled ‘em back up.
Q294        O.K. And where were your hands?
A.             Um, beside me.
The single expert, Dr R reported on his interview with C on 30 August 2012 as follows:
He said that his father was bad. He throws our toys away. He was trying to keep us. He then ran out to speak to his mother who was in another room and came back and said he did something on the rude part. [C] seemed unclear. But he seemed to think that he needed to report something about the father doing something to his rude parts.
In respect of his interview of N, Dr R reported as follows:
I asked if anything bad had happened to her. She said ‘he touched me on the rude part. It was only when I was asleep’. I asked her could she tell me more about it. She said she couldn’t. She said ‘I don’t remember anything’. She said she was asleep and therefore she was not able to remember what had happened to her.
Dr R reported on his discussion with the mother about the allegations of sexual abuse as follows:
On the Monday 8^th November 2011 after a visit that had occurred on 6 and 7 November [the mother] said she had put [N] in the shower and [C] was playing. She told [N] to go to the bedroom after she had left the shower. She then heard [N] scream. She then saw [N]. She asked why she had screamed. ‘She said [C] put his head down there’. She asked her what she meant and she said that [N] pointed to her genital region. (the interview with the mother was conducted with the three children present and also the friend [Ms G]. The mother refused to leave the children alone at that time in case the father arrived.) [C] then said quite confidently ‘no I didn’t’. The mother ignored what [C] said and she then repeated what she had said to [N] ‘what the fuck where did you learn that?’ Then [N] said to her ‘he must have seen daddy do it daddy does to me in my sleep.’ And then [C] denied that this happened and said ‘mum you’re lying’. Then [the mother] said she asked [N] on the night to show her what she meant and [the mother] said [N] at the time of the disclosure bent forward and put her head down as far as she could. She interpreted [N]’s head moving down as indicating oral sex on her genitals. Then [the mother] said she felt very shocked. ‘I had to process what had happened. I sat [N] down and we talked.’ She said [N] had a secret. She said that she would speak to DOCS. ‘I believe her.’ I asked if there were any more details that she could give about what [N] had said and she said that that what was she had reported to her and she didn’t want to contaminate it any further.
In his report Dr R expressed these opinions as to the validity of the allegations of sexual abuse of N by the father:
In essence I believe that the allegations have occurred in the context of the mother’s anxiety and difficulties coping: firstly with parenting the children and secondly with her anxiety about the children being away from her and in the context of previous conflict between her and the father. I believe that she has inappropriately questioned the children and then she has formed conclusions which don’t appear to be logically or firmly based. In fact [N] was under pressure and said she can’t remember any sexual abuse happening because she claims she was asleep at the time that it must have happened. [C] denied that anything had happened. Therefore I don’t believe that there is reasonable evidence to support the mother’s allegations despite the substantiation of JIRT which appeared to be because of the repeated allegations of [N].

In his oral evidence Dr R elaborated on these opinions, in words to this effect:
I found the allegation to be spurious on a much broader basis than [C’s] denial and the fact that [N] said she was asleep. There were various jumps in logic by the mother. There was an assumption by the mother that sexual abuse had occurred because [N] pointed to her genitals. Most children of this age play with genitals and are interested in sexual matters at a childish level. [C] seemed quite confident in his denial and was correcting the mother as to an incorrect statement. At the start of the JIRT interview the child had a clear idea that she was there to make disclosures about the father and questions elicited disclosures. Details in the JIRT interview were very scant.
I share Dr R’s concerns as to the validity of the allegations of sexual abuse. It is readily apparent from the transcript that N came to the JIRT interview with an expectation that she was to complain of inappropriate sexual touching on the part of the father. The only complaint that she made during the interview, in effect, was that the father touched her genital area while she was asleep. It seems to me to be inherently unlikely that sexual abuse occurred in the manner described to the JIRT officers by N.
As appears below, Dr R assessed that the mother may project her own anxieties onto the children and have difficulty in separating her experiences from those of N and C. The mother said to Dr R: “…she’s shy and he’s quiet. There is something there because of [C’s] anger. There must be something there.” Dr R reported that the mother inferred that C has been sexually abused by the father. There was no evidence of any complaint by C of sexual abuse of himself by the father, other than his seemingly rehearsed or prompted statement to Dr R.
It seems to me to be significant that C made a statement to Dr R about the father touching him on his “rude part” after he left the room and spoke to the mother. I have referred above to Dr R’s account of his interview with C. In my view, it is likely that the mother influenced C to make these statements.
It seems to me to be significant also that the mother suffered sexual abuse as a child. She said in her oral evidence:
I was sexually abused as a child and in my sleep. I am seeing a counsellor…
In my view, it is likely that the mother is hypervigilant to the possibility of sexual abuse of the children.
For all of these reasons I find, to the requisite standard, that the father did not sexually abuse N. I find that there is no unacceptable risk of sexual abuse of either child by the father.

The Best Interests of N and C: Section 60CC Considerations
Section 60CC(2) – The Primary Considerations

The observations and opinions of Dr R strongly indicated that the children have maintained a meaningful relationship with the father, despite having spent no time with him since November 2011. On 30 August 2012 Dr R observed the children with the father and the paternal grandmother. He reported that “they looked pleased to see him” initially “but stood away from the father” and “were trying to assess what would happen” early in the observation session.
Unfortunately the father became frustrated and angry when the children refused to approach and interact with him. In their presence he verbally abused and swore at Ms G, a friend of the mother who was present at her insistence. The mother refused to allow the children to be observed with the father unless Ms G was present at all times. Dr R observed that the children became frightened by the father’s “anger outburst”.
The father directed some highly inappropriate comments to the children in the presence of Dr R. For example, he said: “don’t you want to come and talk to me [N]; this is bullshit you’re poisoned” and “what did I do wrong nothing what did I do wrong nothing what did I do wrong nothing”. He said also: “Tell me what’s wrong. Tell me what’s wrong.” and “Don’t you want to come and see me. Do you want me to just throw your toys in the bin? There are plenty of poor kids around without any toys. Do you want me to throw your toys, give your toys to the poor people?” These remarks must have caused considerable distress to the children and certainly demonstrate a lack of child-focus on the part of the father.
Later in the observation session, however, the children and the father threw small cushions at each other in a manner which Dr R interpreted as “a way of interacting”. He assessed that the children enjoyed the “rough and tumble” of this play activity. He was of the view that “the children clearly wanted to connect with the father but the father’s anxiety and child-like approach made it difficult for the children”.
The paternal grandmother managed to engage successfully with the children in the presence of Dr R. He observed that she was “taking her time” and “trying to quieten [the father] down”.
Dr R opined that the children would benefit from “some form of relationship with the father”. He reported:
Despite his shortcomings and difficulties I believe that there is an important relationship between him and the children and that it would be important for the children to continue some form of relationship with him. I formed the view that he was not an unacceptable risk to the children. However he had significant limitations to his parenting skills and ability to care for them. I believe that he would be able to provide some contact care for the children. His parents seem to be important and particularly his mother was impressive in how she conducted herself.
There is little doubt that the children have been exposed in the past to family violence directed at the mother by the father. As noted, he admitted to calling her foul names in their presence. I am unconvinced that the children “would not have understood what [the father] was saying” as he contended in his oral evidence.
The father said that the difficulties between the parties arose to some extent because of his temper. He displayed obvious anger in the presence of Dr R and also during the trial.
I digress to observe that the mother also indulged in angry and impolite behaviour during the trial. I have referred above to the contents of New South Wales Police Force descriptions of incidents between the parties and to the father’s denials of some of these allegations of physical violence directed at the mother. On the balance of probabilities, I find that there were incidents during which the father perpetrated physical violence against the mother. His own admissions leave no room for doubt that he directed foul verbal abuse at her. Obviously, there is a need to protect the children from exposure to conduct of this nature between their parents.
I should note that the mother relied on an affidavit sworn by Ms D on 19 December 2012, to corroborate her allegations that she suffered physical violence at the hands of the father. Ms D swore that the mother told her in 2004 that the father acted violently toward her in the presence of the children. That proposition is an impossibility given that they were born in 2005 and 2007. Otherwise Ms D’s evidence was unchallenged but I do not rely on her evidence in reaching my conclusions on the issue of violence.

Section 60CC(3) – The Additional Considerations

The mother maintained that neither child has expressed to her a wish to see the father since November 2011. She clearly harbours great hostility toward him and, in my view, the children are highly likely to be aware of this attitude. In these circumstances, it would be surprising if they communicated to the mother any wish to see the father.
The children expressed no views to Dr R on the issue of spending time with the father. There was thus no independent evidence as to how they currently feel about a resumption of time with the father. As noted, Dr R was of the view that the children’s behaviour indicated that “they clearly wanted to connect with the father”.
I have referred above to part of Dr R’s evidence as to the nature of the relationship of the children with each of their parents. Unsurprisingly, he assessed that the children are primarily attached to the mother but he had concerns as to the nature of this relationship. In his oral evidence Dr R said, inter alia: “It may be that the mother is projecting a lot of her own feelings and anxieties onto the children and that she has difficulty in separating her own feelings and experiences from the children’s.”
As to the children’s relationship with the father Dr R opined:
I formed the view that [Mr Gilmore] cared a great deal about the children and there was a strong bond between him and the children. However he was very unsophisticated and had difficulty knowing how to be an adult in the situation. When I interviewed him [Mr Gilmore] kept asking why [N] wouldn’t see him. He was unwittingly putting pressure on her and [C]. The children clearly wanted to be able to connect with him but were intimidated by the situation. However he found it difficult to understand. Whereas his mother understood well and was able to try and find a way of connecting with the children that wasn’t intimidating. He also lost his temper with [Ms G] which was unfortunate but however demonstrated his difficulty in being able to place the needs of the children above his own.
Dr R summarised his assessment of the nature of the children’s relationships with the mother, the father and the paternal family as follows:
I formed the view that the children cared about both parents. They saw their mother as the primary caregiver but I believe they also have a strong connection with the paternal family in that they enjoy their father playing games with him and doing rough and tumble activities with them. I don’t believe either of the children were fearful of the father. In the joint interview the children could easily have left the office if they had wanted to. But the awkwardness of the situation I interpreted as the children wanting to gain confidence because of the extreme anxiety that the mother had exhibited and that their reactions were very much governed by how the mother had behaved.
The father has demonstrated considerable persistence in pursuing a relationship with the children and, in my view, he has a genuine wish to play a significant role in their lives. He pays child support in an unknown amount but which I assume is in accordance with assessments issued by the Child Support Agency from time to time.
The effect on the mother of a reintroduction of time with the father was a matter of significant concern to Dr R. In his oral evidence he said inter alia:
The mother is the primary carer and her stability and ability to provide for the children is paramount.
I felt that the mother was extremely anxious and too much contact would be extremely threatening to her.
In August 2012 when I interviewed them, the mother’s anxiety was such that it would be unrealistic [to expect her] to hand the children over to the paternal grandparents and the father.
These considerations prompted Dr R’s recommendation for the children’s time with the father to resume at a contact centre for a short period.
Overall, however, Dr R considered that the children would benefit from a resumption of time with the father and paternal grandparents. In his oral evidence he said:
I formed the view that some gradual contact could occur and perhaps contact could occur.
I was thinking that a connection with the paternal family is important – I think the paternal grandparents are a potential source of great benefit to the children.
I was very impressed with the paternal grandmother and formed the view that she had great ability to interact with the children.
Dr R recommended that the children see the father at a contact centre for one to two months and thereafter that the paternal grandparents be present during their time with him. He opined that it may be possible for the children to spend overnight time with the father in the home of the paternal grandparents in six to twelve month’s time.
I should note that the father and the paternal grandparents were opposed to any further time at a contact centre. On the balance of probabilities, however, I consider that they would accept a short period of time at a contact centre as a step in the process of the children’s reintroduction to them. They gave this evidence before they heard Dr R recommend “perhaps a month or two at a contact centre and then the paternal grandparents take on responsibility”.
I will thus order that the children are reintroduced to the father and the paternal grandparents at a contact centre in the best interests of the children. The father should understand clearly that he does not have the option of simply omitting this step in the graduated time regime.
The distance between the parties’ homes creates some difficulty in the children spending time with the father. As noted, the mother lives at F Town and the father and paternal grandparents’ home is in H Town. An approximate mid-point is L Town but the paternal grandmother explained that time in that town would be “cold and boring for the children”. The father also expressed the view that there is “nothing for the children to do” in L Town. Nonetheless, the paternal grandmother said she would travel to L Town to enable the father to spend time with the children for an unspecified period of less than twelve months.
Dr R identified serious concerns as to the capacity of each of the parents to provide for the children’s needs. In his oral evidence he said: “This is a very complex matter, with great vulnerabilities in each parent.” In relation to the father Dr R opined as follows:
…from a personality perspective he has significant limitations. I am not sure if there is an intellectual limitation or specific learning problem. He has had some anti-social features in the past with assaults and perhaps some illegal activities. He certainly has impulse problems and difficulty being able to judge interpersonal situations in a sophisticated way.
In relation to the mother, Dr R expressed these opinions:
I suspect she has had quite a difficult childhood. I also suspect being the second-oldest of seven siblings and having had a disabled brother and her father was deceased that she may have had a lot of responsibility at a young age placed on her. However I don’t have confirmation of this. She presents as somebody who is very fragile and I suspect may have suffered a lot of deprivation herself. I don’t know whether there was significant abuse but probably a lot of emotional neglect when she was younger.
Further in relation to the mother, Dr R expressed these opinions:
I recommend that the children continue to reside with the mother who is attempting to provide for them to the best of her ability. She is struggling. She is a single mother of three children and this is an extraordinarily difficult task for her considering she has significant stresses in her life. However she does appear to have found a degree of stability in M Town and is trying to provide well for her children and does appear to be trying to cooperate with Community Services to give her help with the children.
Some concerns as to the father’s attitude to the children and the responsibilities and duties of parenthood arose from his evidence, including that he may move to Perth if he is dissatisfied with the outcome of these proceedings. He said that he has been offered a job in Western Australia but would spend about twelve months in Sydney paying various debts before he makes any move to Perth.
I have referred above to past violence between the parties and the existence of AVOs. In her oral evidence the mother said that the last AVO was taken out in 2006 and the most recent episode of violence between the parties occurred in 2008.

The Presumption of Equal Shared Parental Responsibility

The mother sought an order that she have sole parental responsibility and the father offered no opposition to that proposal. As noted he effectively sought to resume the arrangements prescribed in consent orders made on 9 August 2011. These orders provided that the mother have sole parental responsibility for the children.
Despite this common position, I am still required to apply a presumption that it would be in the children’s best interests for the parties to have equal shared parental responsibility. In my view, this presumption was rebutted by compelling evidence that it would not be in the best interests of the children that the parties equally share parental responsibility.
It was obvious that the parents have little regard or respect for each other and that a high level of hostility and conflict exists between them. Their communication is very poor and it is most unlikely that they would be able to make joint decisions in the interests of the children. In these circumstances, equal shared parental responsibility is an unviable concept and such an order would be contrary to the children’s best interests.

Conclusion

As there will be no order for equal shared parental responsibility, I am not required to consider whether it is in the children’s best interests, and reasonably practicable, for them to spend equal or substantial and significant time with each of their mother and father. I am at liberty to proceed directly to the determination of what orders are in the best interests of the children.
In my view, the children will benefit from a resumption in their relationships with the father and the paternal grandparents. I entirely agree with Dr R that the paternal grandparents are “a potential source of great benefit to the children”, particularly in circumstances where there was no evidence of any involvement in their life by maternal family members.
I consider that it would be in the children’s best interests for their time with the father to recommence at a contact centre and to take place at that venue on the first three occasions. Thereafter, I am of the view that either or both of the paternal grandparents should be present with the children throughout their time with the father, essentially to contain his behaviour and to protect him from further allegations, until the commencement of the Christmas school holidays. The arrangement will then progress to alternate weekends from Saturday morning until Sunday afternoon for the duration of the 2013 Christmas school holidays. From the commencement of term 1 in 2014, there will be a resumption of the arrangement prescribed by the consent orders of 9 August 2011.
It seems to me that the children’s best interests require an order that they sleep within the home of the paternal grandparents when they have overnight stays with the father. They should not sleep in his caravan, as was previously the case. I have found that the father did not sexually abuse N but, in my view, there are two valid reasons for the making of this order. Firstly, the mother requires reassurance and secondly, the father and the children need to be protected from further allegations. For the same reasons I will order that one or both of the paternal grandparents sleep in the children’s accommodation if an overnight stay takes place away from their home.
Normally I would be loathe to make an order for changeovers to take place at a police station but I was presented with no alternative proposal. In the particular circumstances of these parties, there may be some advantage to the use of a police station in terms of containment of the father’s behaviour and reassurance of the mother.
The mother gave evidence that “the children were so happy at [P Town] Contact Centre”, which they seem to have attended pursuant to interim orders made by consent on 11 May 2009. At this time the mother and the children lived at F Town and the father at H Town. I will order that the first three periods of the children’s time with the father take place at P Town Contact Centre, with provision for the parties to agree otherwise in writing.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 March 2013.

Associate:

Date: 15 March 2013

[2013] FamCA 153

15 March 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness