Godwin and Winters

[2016] FamCA 684

FAMILY COURT OF AUSTRALIA

GODWIN & WINTERS [2016] FamCA 684

FAMILY LAW – CHILDREN – where there are allegations the father sexually abused the parties’ three sons – where it is agreed that the children will continue to live primarily with the mother - whether there is an unacceptable risk to the children - whether the mother genuinely believes the allegations - whether the father’s time with the children should be supervised –whether the parties have the capacity to make decisions jointly.

Family Law Act 1975 (Cth)

M v M (1988) 166 CLR 69

APPLICANT: Mr Godwin

RESPONDENT: Ms Winters

INDEPENDENT CHILDREN’S LAWYER: Stephen Tester & Associates

FILE NUMBER: LEC 3 of 2013

DATE DELIVERED: 19 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17, 18, 19, 20 August 2015;
18 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Henry Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Frizelle

SOLICITOR FOR THE RESPONDENT: Freeman Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tester

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The children B, born … 2007, C, born … 2008 and D, born … 2011, live with the mother.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The mother and father have equal shared parental responsibility for the major long term issues for the children with such issues to include but not be limited to:

   (a)       the children’s education;

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

   (c)       the children’s health.

   (d)living arrangements that make it more difficult for the children to spend time with each parent.

2. The children spend time with the father at all times as may be agreed between the parties and failing agreement as follows:

   (a)after this Order is made and commencing on the first weekend on which the children would have been due to spend time with their father pursuant to the Order made 19 August 2014: from 4.00 pm Friday until 2.00 pm Sunday; and, thereafter,

   (b)each third weekend: from 4.00 pm Friday until 2.00 pm Sunday; and

   (c)commencing with the December 2016/January 2017 school holiday period: for one half of all New South Wales calendar school holiday periods and, unless otherwise agreed, as follows:

   (i)for the second half of the holidays at the end of Term 1 and the holidays at the end of Term 2 school holiday periods each year;

   (ii)for the first half of the holidays at the end of Term 3 each year;

   (iii)for the second, fourth and sixth weeks of the holidays at the end of the school year each year.

   (d)from 2.00 pm Christmas Day 2016 until 2.00 pm Boxing Day 2016 and each alternate even year; and

   (e)from 2.00 pm Christmas Eve 2017 until 2.00 pm Christmas Day 2017 and each odd year thereafter;

   (f)if the children are not otherwise in the father’s care on each of their birthdays:

   (i)if the birthday falls on a school day:  from after school until 6.00 pm on that day; and

   (ii)if the birthday falls on a non-school day: 9.00 am until 12.00 pm that day.

3. In the event that the time the children will spend with the father pursuant to Clause 4(b) above does not fall on the weekend on which Father’s Day occurs, the children will spend time with the father from 4.00 pm on the Friday immediately before Father’s Day until 2.00 pm on Father’s Day each year provided the father gives the mother 28 days’ notice by email of his intention to take up such time.

4. For the purposes of time during school holidays: the father provide the mother with twenty-eight (28) days’ notice in writing if he is unable to exercise time with the children during the school holiday periods in accordance with this Order.

5. If the children are ordinarily in the father’s care on either of the children’s birthdays: the mother is permitted to telephone the children and the father will facilitate that call.

6. Each party communicate with the children, when they are not in their care, by telephone at all reasonable times and not less than each Tuesday, Thursday and Saturday between 4.30 pm and 5.30 pm and the parent in whose care the children are at that time shall facilitate the children speaking to the other parent on the telephone.

7. Unless otherwise specified in this Order or agreed between the parties in writing, the father shall collect the children from the front curb of the mother’s residence at the commencement of their time with him and the mother shall collect the children from the front curb of the father’s residence at the conclusion of their time with him. 

8. In the event that the father is able to spend time with the children each alternate weekend rather than each third weekend: the father shall give the mother twenty-one (21) days’ notice by email of his intention to spend time with the children pursuant to Orders (4)(b) above each alternate weekend and, once that notice is given, time shall occur each alternate weekend.

9. This Order authorises any school, day care or medical practitioner upon which the children attend to provide the parties with information in relation to the children at that party’s cost.

10. Each party notify the other as to any medical emergency with respect to the child or children whilst in their care and notify the other as soon as possible as to the medical emergency including the name of the treating doctor and/or hospital, if applicable.

11. Each party keep the other informed as to their residential address and mobile phone number and notify the other as to any change in those details as soon as practicable after such change.

12. Neither party denigrate the other in the presence or earshot of the children or discuss these proceedings with the children.

13. Each party has liberty to provide the Reasons for Judgment delivered 19 August 2016 to any counsellor upon whom the children attend.

14. Each party has liberty to provide the Reasons for Judgment delivered 19 August 2016 to any counsellor upon whom that party attends.

UPON THE COURT HAVING FOUND THAT THE MOTHER CONTRAVENED CLAUSE 4.9.1 AND CLAUSE 4.9.2 OF THE ORDER MADE 31 OCTOBER 2013, AS VARIED BY THE ORDER MADE 1 APRIL 2014 AS PARTICULARISED IN THE AMENDED APPLICATION – CONTRAVENTION FILED 14 AUGUST 2014 WITHOUT REASONABLE EXCUSE IT IS ORDERED PURSUANT TO SUBDIVISION E OF DIVISION 13A OF PART VII OF THE FAMILY LAW ACT 1975 (CTH):

1. The Respondent mother shall within 7 days enter into a bond upon the following conditions:

   (i)The mother must be of good behaviour for the duration of the bond, which shall include compliance with the Order made this day; and

   (ii)The bond shall be for a period of 12 months, commencing on the date the mother enters into the bond.

IT IS FURTHER ORDERED THAT

1. All outstanding Applications are dismissed.

2. The Independent Children’s Lawyer is discharged.

IT IS NOTED THAT

A.For the purpose of entering the bond referred to in Clause 17 herein, a Registrar of the Family Court will be in the Lismore Registry in the week commencing 29 August 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 3 of 2013

Mr Godwin

Applicant

And

Ms Winters

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT[1]

[1]I extend the parties an apology for the delay in finalising this matter. I have, of course, revisited and reread my notes, the affidavit material, the exhibits, the expert reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to various extracts of the transcript of the proceedings.

1. The parties met in late 2003, commenced living together not long after that and married in 2007. They appear to have ceased sharing the same home in about mid-February 2011.

2. They have three children:

   a)B, born in 2007; and

   b)C, born in 2008; and

   c)D, born in 2011.

3. The children have always lived primarily with their mother and it is agreed that they will continue to do so. Their mother commenced a relationship with Mr E in February 2012 and married him in 2013. He has two sons from a previous relationship and these boys – who are about 9 and 11 years of age respectively – live primarily with their mother, but spend time with Mr E, the mother and the children on a regular basis.

4. Little else is known, in one sense, about Mr E because he was not called by the mother as a witness in her case. Predictably, counsel for the father made submissions about the consequence for the mother’s case of this omission, especially given her evidence that he was present during certain conversations with at least one of the boys during which she asserts that child made disclosures to her that he had been sexually abused by his father.

5. These asserted disclosures and the children’s subsequent comments to Police during interviews are at the heart of the parties’ dispute about the time the children should spend with their father and the manner in which this should occur.

6. The mother says that, given the comments she says the children have made to her, her asserted observations of their physical presentation on their return from spending time with their father, their behaviours (in particular, B’s frequent masturbation), the comments B and C have made during a number of interviews with the Police and officers constituting the Joint Investigation Response Team[2] (JIRT) and that the Department of Family and Community Services (the Department) has substantiated the allegations, she believes they have been sexually abused by their father.

   [2]          A joint initiative of New South Wales Police and New South Wales Health

7. The father, who the children refer to as “Daddy [Godwin]”, denies ever sexually abusing the children. He denies ever acting inappropriately toward them. He vehemently denies any wrongdoing. He advances that either the mother innocently – but wrongly – interpreted comments made by the children or she has deliberately and vindictively invented, or, at the very least, embellished, these allegations in order to diminish his presence in the children’s lives.

8. The father has been interviewed by Police about these allegations. The material collated by JIRT has been reviewed by the Director of Public Prosecutions (NSW) who reached the conclusion that there were insufficient prospects of obtaining a conviction as to justify charging the father. The Department investigation is concluded.

Proposals

1. The orders sought by each parent reflects their respective positions: that is, the father seeks, simply, to be able to spend time with the boys from after school Friday until Sunday afternoon every third weekend, during half of the New South Wales school holiday periods and otherwise as provided for in the Outline of Case filed on his behalf on 4 August 2015. Whilst this proposal reflects the reality that he lives in Sydney, and the children and their mother live in F Town, he also seeks the opportunity to spend time with the children each alternate weekend if he is able to travel to accommodate this.

2. The mother’s proposals depends upon the Court’s decision about whether the father represents an unacceptable risk of harm to the children: if the answer to this question is in the affirmative, she proposes that the children spend time with him for two hours every third weekend, supervised at a local Contact Centre; if the answer to this question is in the negative, her proposal is that the children’s time with their father occur in accordance with the terms of a parenting order made by consent in October 2013, save that the holiday time not start until D commences school in 2017.[3]

   [3]          Case Outline filed 20 July 2015.

Principles

1. I may, subject to s 61DA[4] and s 65DAB[5] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting order as I think proper.[6] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[7]  In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[8]

   [4]          The presumption of equal shared parental responsibility.

   [5]          Parenting plans.

   [6] s 65D of the Act.

   [7] s 60B of the Act.

   [8]          Family Law Act 1975 (Cth) ss 60CA, 65AA.

2. The presumption that it is the children’s best interests that their parents have equal shared parental responsibility for them must be applied unless the Court is satisfied of the matters prescribed in s 61DA(2) of the Act. If, as counsel for the mother submitted, the Court concluded that the father sexually abused the children, the presumption does not apply. If, however, the presumption does apply, it may be rebutted by evidence that satisfies the Court it will not be in the children’s best interests for their parents to have equal shared parental responsibility for them.

Inferences from the failure to call certain people as witnesses

1. Counsel for the mother submitted that, whilst it was open to the Court to infer from the mother’s failure to call Mr E that his evidence would not have assisted her case, such inference should not be drawn. Rather, she submitted the Court should accept the mother’s evidence that Mr E was not a witness in her case because she thought a statement he had given to Police, dated 21 July 2014, (referred to in correspondence dated 26 June 2015 from the Office of the Director of Public Prosecutions)[9] was – or would be – in evidence.

   [9]          Exhibit 8.

2. This statement does not form part of the evidence. This fact was known during the course of the trial. No application was made on behalf of the mother for leave to call Mr E to deal with this reality.

3. On the mother’s evidence, Mr E was present during two occasions on which at least some of the children made comments that she relies on as disclosures of sexually abusive behaviour toward them by their father. Given this, if called, he clearly could have corroborated her sworn account of who said what to whom and in what context. He could not be thought, in any way, to be a person whose evidence was likely to be of such marginal relevance as to make the failure to call him understandable – in the sense of providing a reason why an adverse inference should not properly be drawn.

4. It was clear Mr E was available to give evidence – he was, in fact, in Court during the trial.

5. As I have said, there could be no doubt that, given the mother’s evidence about his involvement, his evidence would have been extremely relevant. If his evidence was consistent with that she gave, he would have corroborated her account of events.

6. His absence is even stranger given that, on earlier occasions, the mother has complained that, in making previous Orders, the Court acted (in essence) inappropriately given a lack of evidence: that is, despite advancing, as one of her explanations for her decision not to follow the Order made by Judge Jarrett on 1 April 2014, that she believed the Court did not have all the information she had in making its decisions, she deliberately determined not to make Mr E part of her case and did not, therefore, ensure that this asserted deficiency was not repeated.

7. Given these matters, I accept that, given the mother’s failure to call Mr E to corroborate her evidence of conversations with the children (the first being with C in the bathroom and the second being that which occurred after the first JIRT interview) and observations of their behaviours, his evidence would not have assisted her case.

8. I do not, however, accept that a clear inference should be drawn that Mr E either did not want his own conduct put under scrutiny and/or did not want to be challenged about any of the matters the mother advanced on his behalf in a second-hand way through her affidavit. 

9. Counsel for the father also submitted that, in the absence of her presence as a witness in the proceedings, the Court would place extremely limited – if any – weight upon the contents of the second-hand summary style documents in and by which Ms G (the sexual assault counsellor upon whom the children attended) reported various alleged disclosures made by the children.

10. He says that in her case the mother relies on the fact that she did not make notifications to the Department about the children asserted disclosures and that, greater weight should be accorded to them because they were made by somebody else and the Department in turn substantiated them. This falls away he submitted because it was made clear during the trial that whilst the notifications were made by others, the mother was the source of the information relied upon by the notifiers.

11. Further, he submitted that despite Ms G having been a driving force in the Department’s substantiation of the assertions, she was not called by the mother. This is a problem because it leaves the Court attempting to work out what various notes she made about various things actually mean; further, it is also apparent that some of her second-hand summaries are factually incorrect – with the result that, in arriving at its conclusions, the Department acted on inaccurately conveyed information.

12. Ms G had direct contact with B and C. The impact of her absence is multiplied it is said because the Police interviews make it clear that they were attempting to elicit from the children information Ms G had already conveyed to them that the children had conveyed to her: it is through this process that whatever ‘disclosures’ were obtained – that is, in response to the children being told that ‘you told [Ms G]’.

13. It seems to me that Counsel’s submissions about Ms G really go to the weight to be attached to her evidence in her absence.

Events since separation

1. That the children would obtain benefit from having a meaningful relationship with both of their parents was implicitly recognised by the parties in the parenting arrangements they implemented after their separation in early 2011. These arrangements saw B (then about three and a half years of age) and C (then two years of age) initially spend limited time with the father.[10] D was yet to be born.

   [10] Mother’s affidavit filed 29 May 2015 at [42].

2. From about April 2011 until about October 2012, the children spent time with their father approximately every second weekend:[11] B and C spent time with their father from Friday afternoon until Sunday afternoon and, after D was born in 2011, the father spent an hour with him when he collected the older boys and another hour when he returned them to the mother’s care. This time often occurred in a park opposite the mother’s house.[12]

   [11] Mother’s affidavit filed 29 May 2015 at [43].

   [12] Affidavit of the father filed 29 May 2015 at [18]; Mother’s affidavit filed 29 May 2015 at [52].

3. The mother said that “during a bout of steady visitations in 2011”, B started masturbating.[13] In about April 2012, he was referred to Ms H, a psychologist. He saw her for the first time in early May 2012 and for a total of eight sessions during that year.

   [13] Affidavit of the mother filed 29 May 2015 at [98].

4. The Intake Form completed by Ms H on 5 April 2012 identifies that, on the basis of information provided by his mother, B (then five years of age) presented with the following concerns: out of character behaviour; parental separation 14 months prior; autism/Asperger’s traits; switched off; laughs if brother is hurt; can become aggressive; naughty at kindy; switched on; plays with his penis; “freaked out” and lots of anger.

1. On 16 April 2012, the mother completed a Questionnaire for Ms H. As well as reporting that B was unsettled on returning to her care after spending time with his father and was wetting his bed, she described his temperament as being:

   … still very emotional – takes everything personally, however in the last 5 months or so he has become very angry and is more prone to increasingly violent outbursts. These [unclear] tantrums where he will throw himself at the ground or at walls, punching, kicking, biting pinching, scratching. He has also become very argumentative. He also plays with his penis all the time be it in public or when he is alone, and in the last 2 weeks has started hitting or kicking his younger brother on the penis and or bottom.[14]

   [14]         Exhibit 1, Bundle 8, p 272.

2. Additionally, in responding to that aspect of the Questionnaire which asked whether B had experienced any events that would be considered traumatic, his mother reported: illness as a child (including several hospital visits); grief at family pets dying and the parental separation, and being exposed to “many angry arguments” between the parents including during which the father punched holes in the wall, stormed off and slammed doors.

3. She also reported what an incredible memory for facts B had; that he enjoyed card and memory games, dress ups and role-play. Whilst these attributes are unlikely to be unusual for a child of B’s age at that time, later events perhaps makes this reporting more relevant – even if only tangentially – that it might otherwise have been.

4. In May 2012, the parties agreed to increase D’s time with his father so that he spent four hours during the day on each Saturday and Sunday the father was caring for B and C. The duration of D’s time with his father gradually increased over a number of months[15] such that, by 28 July 2012, he was spending from 8.00 am – 6.00 pm with his father.

   [15]         as was proposed in Exhibit 10: correspondence from the mother’s solicitor dated 14 May 2012.

5. The progress report[16] authored by Ms H, whose evidence I accept, in about mid-July 2012 records the mother’s reports that B was then less angry and having fewer behavioural problems and explosive outbursts. It also outlines Ms H’s view that B’s angry feelings were likely related to the grief of parental separation. She also concluded that the parental separation and its associated grief were also factors which contributed to B’s recently developed habit of touching his penis: a behaviour Ms H thought appeared developmentally appropriate, but should properly continue to be monitored by the mother.

   [16]         Dated 17 July 2012.

6. It is clear that the mother did not later make the Police or any member of JIRT with whom she interacted or the sexual assault counsellor upon whom the children later attended or any Departmental officer aware of the fact that Ms H had reached these conclusions about B’s masturbatory behaviours.

   The October 2012 weekend

7. The mother says[17] that the children were due to spend time with their father on the weekend of 4 October 2012. She says he asked to change the pick-up and drop-off arrangements, so that he would collect the children from her house at 5.30 pm on the Friday. When he attended at her house to collect the children, B refused to go. The father took only C into his care.

   [17]         Mother’s affidavit filed 29 May 2015 at [62]-[69].

8. The father returned to spend time with D the next day (Saturday) and collected B. She says he later telephoned her and told her he would not return the children on Sunday in accordance with the agreement. The mother says she became “terrified for the well-being of [her] children”.

9. She says that, when her later telephone calls to the father went unanswered, she sent him a text message telling him that she was coming to collect the children immediately. When the father told her he was not at the house, the mother telephoned the Police.

10. The text messages between the parents[18] reveal that the father simply said to the mother on Saturday: “As per the agreement I picked our boys up Friday It’s your turn to pick them up tomorrow at 2 at [Ms I’s].” The mother responded: “Return the boys by 2pm tomorrow or I will call the Police. You decided not to have the boys dropped to you at 4pm as per the agreement I was flexible enough to allow you to pick the children up later.” The mother later sent the father the following text: “I will pick them up tonight then you have done this deliberately I told you I couldn’t pick the boys up tomorrow.”

    [18]         Exhibit 19.

11. The mother in fact travelled to the father’s girlfriend’s house on Sunday to collect the children. She says when she arrived, the father told her the children did not want to go with her. She called out to the children. They came to her and she left with them. She says the children were visibly distressed in the car on the way home and told her that the father had told them she did not want them anymore and they were going to live with him permanently. I do not accept that the father made such comments to the children.

12. The mother’s recounting of this incident suggests the father attempted to, or threatened to, remove the children from her care and/or retain them in his care indefinitely. She maintained this despite her acceptance that, when she arrived at the father’s girlfriend’s house, he answered the door and did not attempt to stop the children from leaving when she called out to let them know she was there. She also maintained during cross-examination that she believed the father was not going to return them to her care.

13. I do not accept that whatever the father did over this weekend indicated he intended to retain the children: all he was doing was trying to ensure the mother collected the children from him at the end of their time, given he had collected them from her at the start of that time. 

14. On 18 October 2012, B attended upon the speech pathologist to whom he had been referred in July 2012 – in part at least, as a result of issues or problems associated with school attendance.[19] During that session, the mother advised she was concerned that there had been “child abuse” by the father because B was highly sexually aware; however, the child psychologist (presumably Ms H) had ruled out any child abuse. The mother also said she also felt that there was no reason to believe that B had been abused by the father.[20]

    [19]         Exhibit 1, p 16.

    [20]         Exhibit 1, p 35-36.

15. Despite this, the mother told the father, on either the day before the children were to spend time with him or that day itself, that “something personal” had come up so that the children would not be able to spend time with him on 18 October 2012.[21] I accept that this was simply an excuse she provided to the father to prevent the children from spending time with him.  

    [21] Mother’s affidavit filed 29 May 2015 at [71].

16. The mother’s evidence is that she acted as she did then because she genuinely believed the B and C’s wellbeing was being compromised as they were being removed from her fulltime care and separated from D and, consequently, the most appropriate course was to prevent the father from spending time with them until something permanent and enforceable could be put in place.[22] I have already expressed my conclusion about the father’s actions on the October 2012 weekend and, as I have said, I am not remotely persuaded that anything he did that weekend evidenced any intention to remove B and C from their mother’s care on a permanent basis or for any longer than the previously agreed weekend time.

    [22] Mother’s affidavit filed 29 May 2015 at [72].

17. Even accepting that the mother genuinely believed as she said she did – about which I have some doubts given my assessment of her overall veracity as outlined elsewhere in these Reasons – I am not persuaded that such a belief could be considered either reasonable or rational given the content of the text messages referred to earlier.

18. Rather, as was submitted by Mr Tester, I consider that, on the basis of what was at its highest a misunderstanding between the parents over the October 2012 weekend, the mother simply suspended the children’s time with their father for about 10 months: the reality is that, after the weekend of 4 October 2012, the only time the children spent with their father until after the Order was made on 21 August 2013 was at their mother’s home on 5 November 2012 and 25 December 2012.

19. The maternal grandmother’s evidence is that after the children’s time with their father ceased in October 2012, B’s cold sores cleared up, he had no further outbreaks, his nail biting improved and his masturbation lessened.[23] Given the absence of any expert evidence about what – if anything – to conclude from this described change in behaviour, but noting Ms H’s opinion about the likely cause of his masturbation and that the presence of cold sores and nail biting seem highly likely to be possibly indicative of anxiety, it seems to me that all that can safely be concluded is that it appears more likely than not that – for whatever reason – B’s anxiety about whatever had been causing him anxiety previously may have diminished during this period.

    [23] Affidavit of Ms K Winters filed 29 May 2015 at [17].

20. The father commenced proceedings in July 2013.  On 21 August 2013, Judge Turner made Orders, by consent, to provide for the children’s time with their father pending further hearing, listed for 31 October.

21. The August 2013 Order provided that the children spend time with their father as follows:

    a)all children: from 8.00 am until 4.00pm on Saturday 17 August 2013; and

    b)B and C: from 8.00 am Tuesday 1 October 2013 until 2.00 pm Wednesday 2 October 2013, with D’s time with his father to occur from 8.00 am until 4.00pm on Tuesday 1 October 2013; and

    c)B and C: from 8.00 am Friday 4 October 2013 until 4.00 pm Saturday 5 October 2013, with D to spend time with his father from 8.00 am until 4.00 pm on each of these days; and

    d)B and C: from 8.00 am Saturday 26 October 2013 until 2.00 pm Sunday, with D’s time to occur between 8.00 am Saturday and 4.00 pm Saturday.

22. As there is no evidence to suggest the parties failed to comply with these agreed terms, I accept that the children spent this time with their father.

23. The parties were interviewed on 17 September 2013 by Ms J, a Family Consultant, for the purpose of preparing a Memorandum to the Court. That document identified the following as the only remaining issues in dispute:

    a)whether D should commence spending overnight time with his father before Christmas 2013;  and

    b)whether B and C should be able to spend two nights with their father rather than one night;  and

    c)whether the boys should be discouraged from calling their step-father ‘Dad’.

24. The Memorandum records the mother’s comments that she felt emotionally abused by the father and wanted to reduce the number of contacts she had with him when changeovers occurred. [24] It also records her comments that, after the October 2012 weekend event (which I have already discussed above), she formed the opinion the children’s time with their father should be dramatically curtailed: she wanted the children to spend less time with their father because, “the more time he had with them, it was a longer chance for him to take them and get further away” and “[she] wouldn’t be able to find them”.

    [24]while the father denied there was ever violence, he said he was happy for Mr E to facilitate changeover.

25. Nothing in the evidence supports this view and I consider that there is no reasonable or rational basis for it.

26. The Memorandum does not contain anything to suggest that the mother then raised with Ms J the suggestion that the children were at risk of being sexually abused by their father or that (as she later recounts)[25] B showed signs of anxiety after his time with his father recommenced. This is despite the fact that, in her trial affidavit, she said that, “since August 2013, after spending time with Mr Godwin, B began showing signs of anxiety; started to bite his nails; and bit his nails to the point of his fingers bleeding.”

    [25] Mother’s affidavit filed 29 May 2015, at [96].

27. Further, nothing in the Memorandum suggests that the mother raised any concern about B’s masturbation or that either parent raised any particular concern about the children’s behaviour in the care of the other. It does, however, recount that the parents had little trust in each other and were unable to communicate productively about the children.

28. The mother says that, after the children’s time with their father on 26 October 2012, B masturbated into his teddy blanket each night after he was put to bed.[26] The resurgence of his masturbation after he recommenced having to transition between his parents’ care again needs, in my view, to be considered in the light of Ms H’s opinion about the likely link between B’s masturbation and his grief at parental separation. Additionally, given the mother’s attitude to the children’s time with their father, it is, I think, highly likely that her stress and/or anxiety increased when the children resumed their time with their father; it is similarly highly likely that B’s behaviours responded to this increase in her general anxiety levels. Further, the mother’s own physical and mental health issues in the period from late 2011 until late 2012 were not insignificant.

    [26] Mother’s affidavit filed 29 May 2015, at [99].

29. In any event, despite whatever concerns may have existed at that time in relation to B’s masturbatory behaviour and the view the mother expressed to Ms J, final parenting orders were made by consent on 31 October 2013.

30. Thereafter, B and C spent time with their father each third weekend from 4.00 pm Friday until 2.00 pm Sunday and D spent time with his father from 8.00 am Saturday until 2.00 pm Sunday.

    The weekend of 15 - 17 November 2013

31. The children spent time with their father on this weekend.

32. The mother says that, a few days after this, she was drying D after he had a bath and C, who was present, remarked to her that he thought the father was nicer than her because the father dried them when they got out of the shower, “he does it because he is kind and loves us not like you, he touches us on the penis using the towel not on our skin.”[27] (My emphasis).

    [27]         Mother’s affidavit filed 29 May 2015, at [105]

33. Even in the context in which it is reported in the mother’s affidavit, nothing in this comment is in any way suggestive of abusive behaviour by the father toward the children. The fact that it is reported, however, is highly suggestive of the level of focus on the children’s behaviour and comments in the mother’s household from at least that time onward.

34. However, it also emerged during cross-examination that – despite no mention of this in the relevant paragraph of her affidavit - the mother actually asked C on that occasion whether his father touched him on the penis: he said ‘No’.

35. Not only is there no mention in her affidavit of the fact that she asked C that question, there is also no mention of his denial that his father touched him on the penis. I accept the submission by counsel for the father that this is a serious omission by the mother. I also accept that the fact her affidavit does not contain an account of this aspect of her discourse with C casts significant doubt upon the weight which can safely be placed on her evidence in terms of both its veracity and its accuracy.

36. Given that there is nothing to suggest the mother told the Police or any member of JIRT with whom she interacted or the sexual assault counsellor upon whom the children later attended or any Departmental officer about what actually happened during this exchange with C, her omission is not limited to the Court. That is, there is nothing to suggest she told anyone at any time before cross-examination during the trial that, when she asked C directly whether his father touched him on the penis, he told her he didn’t.

37. Despite her asserted existing concern that the children had been sexually abused by their father, there is no evidence that the mother reported C’s comment about his father’s actions to any authority or medical practitioner. Of course, this makes sense once that which was omitted from her affidavit about the event is known: that is, given C’s answer to her question, there was nothing to report.

    The weekend of 6 - 8 December 2013

38. The children spent time with their father on this weekend.

39. The maternal grandmother says that, in the course of delivering the children to their father at the commencement of their time with him on this weekend, she told the boys to have a good weekend.  She says B responded, “I am perfect for Daddy [Mr Godwin], I never do anything wrong”.[28] Her evidence is that she found B’s comment “odd”, because she had told the children to have a good time and not to be good. I do not share in whatever concerns the mother and/or grandmother have as a result of what seems to me to be a completely innocuous comment by a child who was then about six and a half years of age.

    [28]         Affidavit of Ms K Winters filed 29 May 2015 at [10]

    The events of 11 December 2013

40. The mother says that, on 11 December 2013, she walked into the bathroom while B (then about 6 ½ years old) and C (then just 5 years old) were sharing a bath and found B’s head between C’s legs, “kissing [C] on the penis”.  She yelled at B to stop. When she asked B why he was doing that, he replied, “mum I was just kissing to make [C] feel good because he kisses me to make me feel good”. She later told them it was inappropriate for them and others to kiss or touch particular parts of their body.

41. On 13 December 2013, the mother contacted Ms H and told her:

    a)B had once again begun displaying inappropriate sexual behaviours - with a dramatic increase two nights ago; and

    b)these behaviours started up again in the last two months, when visitation with his father re-commenced; and

    c)there had been no access for 12 months, after the father threatened not to return the children at the end of their time with him.

42. I have already commented on the father’s asserted threats not to return the children to the mother. I wish to emphasise that I do not accept he in fact threatened to not return the children to the mother in the sense of threatening to remove them from her primary care. Given the contents of the messages that passed between the mother and father at the time, the assertion that the father threatened not to return the children (permanently, by implication) after their time with him is completely inaccurate and misleading.

43. The maternal grandmother says that, in late 2013, she was looking after B after school. She said she asked him how school was and how his Gramma and Par (paternal grandparents) were. He told her that: “Par has gotten really fat, so fat that I can’t even put my arms all the way round him anymore… Because Par’s tummy has gotten so fat I have to slide up over his tummy to give him a cuddle and it makes me tingle in my privates’ right through to my bottom”.  Nothing in any of these comments seems to me to be suggestive of any inappropriate actions by either the father or the paternal grandfather toward B. The fact that it is included in the grandmother’s evidence, however, is some small confirmation that, even then, everything the children were doing and saying which could, in any way, be seen as potentially having some sort of asserted sexual connotation was noted.

44. B saw Ms H on 16 January 2014. The mother’s reports to her included that, at that time, he was bedwetting every night; was back to the problems of 18 months ago; humping the teddy - grunting, sweating; forcefully cuddling and kissing and had put his head between legs of brother in bath: “kissing him to make him feel good.” This account seems to be more consistent with that outlined in the mother’s affidavit and less consistent with the contents of the statement she made to Police no more than a month later.

1. On 20 January 2014, the mother contacted the Department to report her concerns. On 23 January 2014, she contacted the L Health Service about sexualised behaviours: she was counselled to focus on “okay” and “not okay” behaviour and speaking up. An Intake Form in relation to B completed that day for the Child and Family Counselling Service noted the current concerns as: “sexualised behaviours, anxiety indicators, causing enuresis and nail biting?”[29] No mention is made of Ms H’s previous involvement or of her conclusions after eight sessions with B.

   [29]         Exhibit 1, page 33.

2. B first attended an appointment with a counsellor at the L Health Service on 3 February 2014. This was a “getting to know you” session; he presented as chatty and comfortable – he made no disclosures of any inappropriate behaviour by his father toward him.

3. He was due to attend again on 10 February 2014.

   What happened on 9 February 2014?

4. The children spent time with their father from Friday 7 February 2014 until Sunday 9 February 2014 when they returned to their mother’s care. They have not spent unsupervised time with their father since this occasion.

5. The mother’s account is that, in the course of bathing them after their return to her that day, she saw bruising and grazes on D: that is, grazing on his chest and back and bruising on his tailbone and anus. She says he was incredibly distressed, saying, “sore mum, sore”. However, the maternal grandmother said that D’s bottom was red, “scalded” and not bruised – it was not something she was concerned about. Given my concerns about the mother’s veracity and/or accuracy, I prefer the evidence given by the maternal grandmother about D’s presentation that night to that given by the mother.

6. The mother’s affidavit account about what happened after this is as follows:  “It was at this time that C opened up about what [Mr Godwin] had been doing to him and added that he also does it to [D]”.[30] The mother’s evidence is that, later that afternoon, C approached her and said he did not want Mr E to be his dad anymore because he did not like dads; he just wanted Mr E to love and care for him. C’s comments about not liking Mr E need to be assessed in the context that, earlier that day, when Mr E collected the children from their father, he removed the lDs their father had given them and, in front of them, returned these to him.

   [30]         Affidavit of the mother filed 29 May 2015, at [115]

7. The mother’s evidence is that, when she told C Mr E did love him, he said, “but I don’t want him to be my dad because my dad, daddy [Mr Godwin], tickles me and I don’t like it. I like where [Mr E] tickles me.” When she asked C where Mr E tickled him, he pointed to his body, his chest, tummy and legs, saying “I like being tickled here but dads don’t tickle there, they tickle on privates.” She says she then asked him to use the proper terminology for body parts - he said the father tickled him on his “private parts, penis and bottom and the other bit”. The mother clarified what he meant by “the other bit” and ascertained he meant the scrotum. She says that, when she asked him how it made him feel, C said “angry”.  She says she then asked C if he would like to talk to someone about his feelings: he said he would, but did not want to talk about his penis.

8. The mother’s evidence is that Mr E was present during this conversation. However, as already noted, he was not called as a witness by her to corroborate her account of it.

9. It seems the mother then telephoned the maternal grandmother. C did not  repeat whatever he said in front of his mother and Mr E to his grandmother. It appears that, despite not knowing anything about any allegations or anything about what C had reportedly told his mother, the maternal grandmother  suggested the mother put his clothes in a bag in case they were needed for some sort of forensic testing: that she did shows, in my view, the approach of the household.

10. The mother and maternal grandmother then took C to the local hospital, leaving D and B at home with Mr E.

    C’s attendance at Hospital

11. The notes produced by the hospital at which C was examined record that, when he presented, he was alert, interactive and happy. He was examined at about 7.00 pm. The notes of this consultation record the mother’s recounting that she had been concerned for “a while” in relation to overly sexual behaviour by her children; her general practitioner and a Dr M had been involved but the children had not made any disclosure. She said that, on returning from two nights with his father, C told her the father had been playing with his [C’s] penis and it had made him angry.

12. Whilst it may be a small point, it is I think significant to note that in telling the medical practitioner her account of an event that could only have happened no more than two hours earlier, the mother used the phrase ‘playing with’ to convey C’s report of ‘tickling’. I think there is a substantial difference in the connotation conveyed by the phrase ‘playing with’ when compared to the word ‘tickling’.

13. C did not make any comment during his examination that could be seen as amounting to a ‘disclosure’ of any inappropriate behaviour toward him by his father. He did not report any pain, but was chatty and happy when speaking about school.

14. After the examination, the mother and grandmother took C home. The grandmother then remained at the mother’s house with C and B while the mother and Mr E took D to a different hospital where a paediatrician was available.

    D’s attendance at Hospital

15. I accept the submissions made by counsel for the father to the effect that the most likely explanation for the mother’s decision to leave D behind at home – and take C to the hospital first to be examined – was that, in contrast to her account of the seriousness of the injury she said she observed D to have, it was more likely he presented as described by the maternal grandmother: that is, he had some redness in his bottom area which she described as ‘scalding’ and which she thought may have been caused by too much sugar and the effects of the same on his digestion (remembering Mr E’s actions in removing lDs from the children when he collected them)  rather than anything as serious as the mother suggested.

16. I accept that, if D’s presentation was as serious and significant as the mother recounted, it would be a strange decision for a parent to leave the youngest child - who was thought to have suffered some sort of violent physical assault to his anus and anal area and some actual physical harm - to be seen to after the child (C) whose complaint was only about touching or tickling.

17. I accept that the fact the mother took C to the hospital first suggests that D did not, in fact, present with a bruise or injury as described by the mother; her actions are, I think, much more consistent with the reality that there was, in fact, nothing really wrong with D that night - that was why he was not immediately taken to the hospital first.

18. The mother says that D was examined that evening at a local hospital where a paediatric consultant was available: the evidence before the Court involves what is, in essence, a summary of a summary rather than a copy of the direct notes themselves. This is concerning because the mother’s evidence is that, during this consultation, she was told that a bruise on D’s chest was potentially the result of him being held down. Again, the mother’s failure to call Mr E to corroborate her assertions about D’s appointment that night and what she was allegedly told by some unknown and unidentified medical practitioner after is concerning. It also means that given my concerns about the mother’s lack of veracity, I am not prepared, in the absence of corroboration, to accept she has accurately recounted whatever information was conveyed to her that night.

    The maternal grandmother’s conversation with B

19. During the time the mother and Mr E were absent from the home with D, the maternal grandmother spoke with B. It seems from her cross-examination that, having returned to the mother’s house following the attendance at the hospital, she bathed C and put him to bed. She said during her cross-examination, that she saw B masturbating on the lounge. This evidence was not in her affidavit.  She asked B to stop playing with his penis; he gave her an explanation about why he was doing so.

20. She said she could not recall B asking her to write down their conversation. However, this is what is said in the document itself. She also said she asked B if he wanted her to go to the sexual abuse counsellor with him the next day.

21. Later that evening, the maternal grandmother wrote a summary of her conversation with B. She said she did not provide this to the mother but provided it to the sexual assault counsellor in the mother’s presence the next day. Reference to that document appears to me to show that:

    a)B was really worried and/or sad about the prospect of his teddy losing his head; and

    b)B told his grandmother he was only pulling his penis because it stuck to his skin - he was not playing with himself; and

    c)when B said he was going to try to push teddy’s wool back into his head to try to stop the head from falling off and he was going to wrap his teddy up into a ball so he would not wear him out, she told him he had helped teddy wear out because he rubbed himself with teddy; and

    d)B then told her that he did not want to do that and put teddy under his pillow but “his brain” makes him do it; and

    e)the grandmother then told B that nobody should touch him “down there” – not even teddy; and

    f)B repeated that his brain makes him do it and he does it when he is sad, because his brain makes him.

22. It is also clear that the document contains what counsel for the father described as the maternal grandmother’s editorialising about B’s comments to her. What it does not contain is also relevant in my view: it does not contain any disclosure by B to her about any inappropriate behaviour toward him by his father. This is so despite the close relationship between them, the fact that they were at his home and were talking about masturbation using his teddy and about feelings and sharing them.

23. The absence of any comments by B about any sexually abusive behaviours by his father toward him (as those have later been alleged) is also relevant because his grandmother made it clear to him during their chat that night that, because of his masturbation, it was his fault teddy was destroyed. It is during a conversation such as this – where blame is being apportioned – that it seems to me to be quite likely that a child of B’s age may well blurt out that they were acting as they were because of something done to them by an adult: in this case, “daddy [Godwin]”. Instead, B remained worried that he is not seeing his father because his father is the one who can fix teddy.

24. In such a context, the submission made by counsel for the father, to the effect that, when subsequently asked why he was masturbating, B sought to blame his brain, teddy and daddy does not seem to me to be fanciful.

    10 February 2014 appointment at L Health Services

25. On 10 February 2014, the mother and the maternal grandmother took B to his appointment with Ms G, a social worker/sexual assault counsellor at L Health Services. During his session (in the presence of both the mother and the maternal grandmother, who provided a copy of the notes she made the previous night) he outlined he was sad because his “close friend” (his teddy blanket) was wearing out. He said teddy made his brain do something that feels “yukky”; he had been trying to stop for two years - since he was four years old – and teddy forgets all the time.

26. When the social worker explored sexualised behaviours, B explained that teddy rubs back and forwards on his penis. He said: “Daddy showed teddy how to do it … Daddy does it to me”. When asked by the social worker whether he had told anyone else about this, B said “no”. The counsellor then reassured him he was brave and not in trouble.[31]

    [31]         Exhibit 1, page 40

    11 February 2014: Referral to Joint Investigation Response Team (JIRT)

27. On 11 February 2014, Ms G made a referral to JIRT. The referral[32] contains the following information:

    a)she had previously reported to the Department (on the evening of 9 February 2014) in relation to D and C: that is, that C had disclosed to his mother his father had sexually assaulted him and the mother was concerned about the bruising around C’s bottom – either an inaccuracy in recounting or the mother wrongly told her that it was C’s bottom (and not D’s bottom) that was bruised; and

    b)she had seen B once the previous week following a referral because he had been displaying a lot of sexualised behaviour (masturbating twice daily with a teddy bear), biting his nails and separation anxiety - he made no disclosure of sexual abuse in this (first) visit; and

    c)whilst the three boys sometimes bathe together, the mother had stopped this because one of the boys was kissing the other boy on the penis; and

    d)she saw B again that afternoon: he reported that “the teddy is feeling sad. My brain tells it to rub my penis and it does”; he later said “daddy showed teddy how to do it. Daddy does it too” and, when she asked him if he wanted to tell someone else about this so it stops, B said: “no because then I won’t be allowed to go to Daddy’s and I want to go to Daddy’s.” It was reported that these words may not be the exact words B used, but his disclosure was along these lines: however, the emphasised words are not found in Ms G’s actual notes of her session with B - even though it happened on the same day she saw him; those comments do, however, mirror the mother’s comments on occasion;

    e)she had been told that the children were at home with their grandmother the previous night while D was taken to the paediatrician - the maternal grandmother said all three children came home from their father’s house quite distressed; the mother reported she endured four years of physical and sexual violence from the father; and

    f)reports from the N Sexual Assault Service confirmed that D had been examined by the service the previous night and there were abnormal findings: that is, he had an inflamed peri-anal region (described as a rash) and a dry swab was taken. He had an abrasion on his buttock and one on his chest and a bruise on his buttock cheek: this recounting is, it seems to me, partially inaccurate in that the medical examination did not in fact reveal anything that was abnormal; rather, D was seen to have nappy rash.

    11 February 2014: Planning and Response Briefing Meeting between members of the Health Department, the Department[33] and Police

    [32]         Exhibit 1, page 45

    [33]         that is: Family and Community Service Department

28. Records of a meeting between members of the Health Department, the Department and Police on 11 February 2014 contain the following information:

    a)in relation to C:

    i)the mother presented with C to the emergency department that afternoon;

    ii)she has held concerns for a long time that the children are being sexually abused by their father due to their sexualised behaviour;

    iii)she had previously reported her concerns to the Department but the children had not made direct disclosures;

    iv)the children had come home from a two night stay with their father and C has disclosed that the father had played with his penis - C told his mother that this made him angry;

    v)the mother noticed when bathing D that day that he had some bruising around his penis. She did not bring D to the hospital nor did she describe the bruising to the reporter;

    vi)the Sexual Assault people were going to attend the hospital and decide whether the mother will fetch D;

    vii)the reporter also says the mother has found one of the boys sucking the other’s penis and one of the boys had also tried to touch the anus of one of his friends.

    b)in relation to B and D:

    i)the mother presented to the emergency department with five year old C concerned about things C had said on returning from his father’s care;

    ii)she also indicated she was concerned about two year old D, who had bruising, purplish colour around his anus that the mother said was not normal;

    iii)she had been very distressed about D waiting at the hospital so she left him at home;

    iv)the reporter spoke with the mother who indicated that C was very distressed and was saying he did not like dads - he said that dads tickle and he does not like it. The mother said to C that Mr E tickles him and he likes that; C said dad tickles on his private parts;

    v)the mother asked C where he was being tickled, and C reported that dad tickles his penis, his bottom and those other things;

    vi)the reporter did not speak with C, but spoke with the mother;

    vii)The reporter asked the mother if she would like D and C to see the paediatrician and the mother indicated she wanted D to see a doctor. The paediatrician completed a forensic kit on D but did not want to do any more intrusive test than a swab. D reported his bottom was sore.

    viii)the mother told the reporter that B is masturbating with a teddy bear several times a day, to the point he has ruined his teddy bear; he is wetting the bed, biting his nails and does not want to leave his mother.

29. I accept the tenor of the submissions made by Mr Tester that, after the February 2014 weekend, the mother’s household almost immediately concluded that the father had sexually abused the children: after all, the maternal grandmother put the children’s clothes in a bag, the children were taken to hospital and she (the maternal grandmother) spoke to B whilst that was going on. Thereafter, the children attended on Ms G (the sexual assault counsellor) and were then presented for interview to JIRT.

30. I accept that, in essence, from 9 February 2014 onwards, the prevailing view in the mother’s household was that sexual abuse had been perpetrated by the father. I also accept Mr Tester’s submission that it seemed the children were subsequently subjected to a lot of questioning by their mother and, possibly, Mr E’s but, again, this issue is unresolved given his absence from the proceedings.

31. It is clear that the JIRT officers who interviewed B did so on the basis of the information outlined above that had been provided to them by Ms G – who, in turn, had received most of it from the mother.

    B’s first interview by Police: 12 February 2014 (6 years, 7 months of age)

32. When B was first interviewed by Police on 12 February 2014, he told them he had come to talk about his teddy being all worn out. He said he did not want to tell the officers why teddy, who he had had since the beginning of his life, was all worn out  - it was one of the things he knew the answer to, but might be worried or embarrassed about telling them. He said he slept with teddy and kept it under his pillow. He was obviously reluctant to tell them what he had been doing with teddy. He maintained this reticence despite being asked a number of times at different times during the interview why teddy was all worn out.

33. B (who was able to identify body parts on a diagram) said, when asked directly, that his penis was used for “weeing.” He said that no-one touches his penis other than him. When asked directly, B said that his bottom was used for “pooing” and “farting”; again, he said that no-one touches his bottom “cause it’s a rude part” and “no one ever touches people on bottoms.”

34. B also made it clear that he had forgotten what he told Ms G about teddy two days before this interview.

35. B’s inability and/or reluctance to provide information to confirm what Police had been told by Ms G he had told her on 10 February 2014 appeared to me to result in the interviewing officer’s decision to use the following technique to attempt to elicit information: “somebody told me that…[for example] teddy’s feeling sad”. When prompted in this manner, B responded by confirming that teddy was sad.[34] Similarly, when prompted by the statement “somebody told me that you said your brain tells teddy to rub your penis”, B confirmed that information as correct. When he was asked why his brain told teddy to rub his penis, B said “daddy [Godwin] tickle me all over and he even tickled me on the penis and that gave my brain … so that got a, that’s how it got, just a good remover, remember.”[35]

    [34]         Question  285 and Answer 286 of the interview.

    [35]         Exhibit 1, page 139

1. Consequently, I am not persuaded that the mother has established that she had a reasonable excuse for this contravention.

2. On 24 April 2014, the mother’s legal representatives wrote to the father and told him that, because she (the mother) had concerns about the children’s statements and an investigation in relation to the matter was on foot, she could not put the children at risk and was unable to comply with the Order. That is, via this correspondence, the mother made it clear she intended to fail to comply with the requirement of the Order that she make the children available to spend time with their father and that she did not intend to make any reasonable attempt to comply with it.[67]

   [67] Section 70NAC of the Act.

3. After receiving this notification of intended future non-compliance, the father did not attend at the mother’s home to collect the children on the occasion referred to above.

4. In such circumstances, I do not accept that the father’s admission that he was not present at the mother’s home to collect the children at the time they were supposed to spend time with him on any of the dates particularised is fatal to his application.

5. Counsel for the mother submitted that, if I concluded the mother contravened the order on the occasions outlined above, I would also conclude that, in the circumstances, she had a reasonable excuse for acting as she did; that her actions were reasonable and that she acted on reasonable ground such that I would be persuaded she contravened the order with reasonable excuse.

6. Relevantly in this case, in order to establish contravention with reasonable excuse, the mother must establish, on the balance of probabilities[68] that she believed, on reasonable grounds, that not allowing the children to spend time with their father was necessary to protect their health or safety and that the period during which, because of the contravention, they did not spend time with him was not longer than was necessary to protect their health and safety.[69]

   [68] Section 70NAF of the Act.

   [69] Section 70NAE(5) of the Act.

7. I accept that the evidence establishes that, after B’s interview on 19 February 2014, the mother said that, regardless of a disclosure of anything further during JIRT interview that she was not going to send the children for access with their father and would be seeking legal advice: that is, her clearly stated position then was that, no matter what was thereafter uncovered in the investigation, she would breach the Order.[70]

   [70]         Exhibit 1 p 328

8. Given this evidence and the contents of the JIRT interviews, I am not persuaded that the mother’s asserted belief (that not allowing the children to spend time with their father was necessary to protect their health or safety) was a belief held on reasonable grounds. I accept the submission that, whatever her belief at the time, it was not one which was held on reasonable because it did not matter what was advanced or what happened in the interview, because she had already decided that she was not going to provide the children to spend time with their father: that is, irrespective of whether they made further disclosure during the interviews or not, she had decided that they would not have the opportunity to spend time with their father as ordered.

9. I accept that, in failing to provide the children to the father in accordance with the existing order, the mother simply deliberately chose not to abide its terms. I also accept that her lack of bona fides is demonstrated by the fact that, when the matter first came before Stevenson J for the determination of the contravention on 19 August 2014, the mother deliberately chose not to tell the Court (or the father), of her allegation that she had information asserting actual physical abuse of the children. She also deliberately withheld from the Court that, yet again, the children had been interviewed by JIRT.

10. I am not persuaded, on the evidence before me, that the mother has established that she had a reasonable excuse for her contraventions of the Order on 2 May 2014, 23 May 2014, 13 June 2014, 5 July 2014 and 25 July 2014.

    Sanction

11. I consider that the appropriate sanction is to require the mother to enter into a bond[71] so as to ensure compliance with the Order. This is, I think particularly necessary in this case given that the mother has previously acted without regard to the terms of previous Orders[72] and to ensure that she appreciates the expectation that the terms of Orders will be complied with.

    [71] Section 70NEC of the Act.

    [72]in the sense it is clear she did not facilitate telephone calls between the children and the father (despite the terms of the Order) until she was told she had to.

I certify that the preceding three hundred and seventy-one (371) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 August 2016.

Associate: 

Date:  19 August 2016.