Hartnett and Sampson

[2007] FamCA 202

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON [2007] FamCA 202

FAMILY LAW - CHILDREN - With whom a child spends time - Parenting – Mutual allegations of violence, drug use – Allegation of sexual abuse by father of elder child – Finding no unacceptable risk – Decision to reinstate father’s unsupervised time with the children and to have substantial and significant time in their father’s care in Sydney

Family Law Act 1975 (Cth)

APPLICANT: Mr Hartnett

RESPONDENT: Ms Sampson

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 14 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 11, 12, 15, 16 May & 9, 10, 11, 12, 13, 16, 17, 18 October & 4 December 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827  of 2004

Mr Hartnett

Applicant

And

Ms Sampson

Respondent

REASONS FOR JUDGMENT

Proceedings

1. These are proceedings for parenting orders related to the future care of the parties’ two young children, property settlement, spouse maintenance and departure from child support assessment.  They will be determined in that order. 

Evidence

1. The proceedings were instituted by the father on 2 September 2004 seeking interim and final parenting orders.  Since then there have been a multitude of applications and responses filed by one or the other expanding the proceedings or pursuing satellite litigation resulting in a multitude of orders or directions about one topic or another.  There is a large volume of evidence on affidavit, not only from the parties but also from their many witnesses, not all of whom were required for cross-examination, as well as a number of experts.  In the parenting proceedings a child and family psychiatrist, Dr Q, was appointed and she elaborated upon her written report with oral evidence.  A family consultant also provided a Family Report though ultimately the author was not required for cross-examination.  In the property proceedings there was evidence from two real estate valuers, Mr F and Mr O, who were both cross-examined.  All of that is supplemented by a large body of documents tendered in the course of the hearing. 

2. The financial cost of the dispute has been enormous, as demonstrated by the costs memoranda tendered at the outset, with more costs since then as the case was adjourned part heard on two occasions.  The scope of the litigation, important though the issues are, seems to have been lost. 

3. There is much in dispute about what occurred in the past and there is argument about the meaning to be given to that now.  Related to the parenting proceedings alone, a list of 33 issues has been provided, although that is not confined to factual disputes and extends to the identification of various decisions to be made about the children’s future.  To that can be added a multitude of issues related to the several financial proceedings.  The account given of the background hereafter does not record or discuss all of the evidence because that is not necessary to resolve the core issues or make the decisions required.  That approach mirrors the containment reflected in the submissions of both counsel and the independent child representative. 

4. The stark differences on several core facts require a view to be expressed about the confidence that can be placed in each party’s reliability for accuracy and objectivity in relaying information integral to the decisions they have relinquished to the Court.  Analysis of the evidence demonstrates the mother to have significant shortcomings in this area.  That conclusion is not the result of just one incongruity that might be amenable to explanation other than an attempt to mislead or obfuscate or one implausibility that might be overlooked in recognition of understandable fallibility, and nor is it the result of failing a supposed ‘memory test’.  It is the compound combination of a number of aspects to her evidence on several issues, in some instances purposefully given and not retracted despite the opportunity, that were shown to have been either wrong or unlikely on the balance of probabilities.  As each layer was placed one upon the other, by the time the evidence drew to a close her reliability vis-à-vis the father was an issue that could not be resolved in her favour.  An adverse view of her credit is the only finding reasonably open on the evidence as a whole.  The particulars to support the finding will emerge from discussion to follow of the background facts.  Having been brought into clearer focus as a result, there are implications not only for the evaluation of how parental responsibility has been discharged to date but also for the various decisions to be made about future parenting responsibilities.  That is not to imply the father is on clear high ground, but it is to say that in stacking up his account of past events against that given by the mother, his should be seen as the more reliable unless there is some clear and incontrovertible piece of evidence supporting the contrary. 

5. As the background is unfolded, statements of fact are to be construed as findings of fact save where discussion in context indicates otherwise. 

Background

1. The parties met in 1997 when they were both living and working in Sydney.  There is a dispute about when their relationship began or when they started living together and that will be addressed shortly.  They married in July 2001.  They have two children: their daughter (not yet 4), was born in April 2003 and their son (2), was born in November 2004, several months after their final separation in August 2004. 

2. When they met the father (41) had a son J (almost 11 - dob [March 1996]) with his previous wife.  They had separated towards the end of that year and J’s care was shared between them in ways that changed over time.  There were some court proceedings at one point, but they were resolved by consent and the subsequent changes to J’s arrangements have been negotiated by consent.  In August 2004 by agreement J moved to live full time with his father and he sees his mother at regular intervals. 

3. The father has immediate family living in Sydney.  Earlier in his life, he had spent some time living with his family in the United Arab Emirates.  By the time he met the mother he had established a career in communications.  His career had taken various turns but included work with F from early 1995, initially under contract and later on a freelance basis, corporate presentations, including work for S, working for various airlines, including a continuing contract within the travel industry.  He has also been listed with a speaker’s bureau for engagement at corporate or private functions which may or may not have paid a fee for service.  He incorporated M Pty Limited through which he provided his services until July 2000 when E Pty Limited undertook that function.  In 1992 M Pty Ltd purchased a residential property at H for $540,000 and that is where the father was living when they met.  One result of the property proceedings resolved with his former wife in April 1998 was that M Pty Ltd retained the H property which was sold in 2000.  On settlement of the sale the father moved to rented premises at E which were shared with the mother. 

4. Two or three years before she met the father, the mother (36) had come to Sydney from Melbourne or Geelong.  At that time she was living in shared rented accommodation with others.  She had worked in fashion and had established a business operated through J Pty Limited which designed and manufactured clothing.  This business continued until it ceased to operate in late 2002 just prior to the birth of their first child.  She has family, including her mother and step-father, living in Geelong and her father lives in Adelaide.  Throughout the relationship members of her family visited Sydney and she travelled to Geelong for visits, including on occasions with the father and J. 

5. the mother presented a case to the effect that they had an exclusive relationship from early 1998 and from then they began spending time at each other’s residence overnight, increasingly so as time went on, to the point that when they became engaged in 1999 they were living together most of the time.  The father put the start of their cohabitation at July 2000 when they moved in together to rented premises at E after the H home had been sold. 

6. I accept that the move to the E premises was when they established a common household together as partners.  For all practical purposes that is the start of their relationship though it is clear they spent a great deal of time with each other developing it beforehand.  J spent considerable time in his father’s care and no doubt the mother had a deal to do with his arrangements in co-operation with the father when he was with his father. 

7. For the remainder of 2000 and into 2001 they looked for a home to buy in the eastern suburbs.  Ultimately, in circumstance to be discussed later, they acquired at short notice a home at V for $1.415 million and became registered as joint tenants.  They moved there in April 2001, a few months prior to their marriage, and put in train plans to renovate and improve it.  That remained their home until their final separation around three years or so later in mid-August 2004. 

8. Their relationship prior to that was clearly unsettled and fraught with conflict.  Well before their marriage and prior to establishing a household together at E violence and abusive conduct surfaced and there are mutual allegations about the responsibility for it.  The police were called to intervene when the father was still living at H and again they were called on a number of occasions during uproars right up to the day of their separation.  Regular use of illegal drugs also features in the evidence about their time together and it is suggested this constituted an ongoing problem in their relationship.  I shall return to both topics later. 

9. As their marriage unravelled, more particularly in the last eight or nine months before their separation, there was much uncertainty and instability.  Christmas 2003 was spent in Geelong with the mother’s family.  Against a background of discord, the father returned to Sydney with J and the mother and the parties’ daughter did not return until mid-January.  From there the unsettled uncertainty continued over some months.  In April the mother left for Geelong after consulting solicitors and the father followed.  The mother later returned to Sydney with the daughter and there followed a deal of movement between Sydney and Geelong where on occasions she was in Geelong, the father would go down there for a time, or they were both in Sydney.  It was a period interspersed with counselling about the state of their relationship which they undertook with Mrs B.  Things looked up for a while in early July when they decided to go for a holiday as a family [not [J]] to Hayman Island and later that month they both attended a wedding in Geelong.  By late July the mother and daughter were back at V with belongings that had been removed earlier.  But it was not long before there was yet another altercation and police were called on 26 July. 

10. The final separation was precipitated by the mother’s departure from the home with the daughter.  She returned later in company with her father and sister to collect belongings.  Also present and visiting the father at the time were mutual friends, the … .  A dispute developed, about the removal of chattels amongst other things, and police were again called to the home.  It was at this time that the father learnt of the mother’s intention to go and live in Geelong with the daughter. 

11. On arrival in Geelong, the mother and daughter lived initially with her mother and step-father, a son was born a few months later in November, and she subsequently moved to rented premises in Geelong she now occupies with the two children.  Not long after separation J moved to live full time with his father and they have remained living at the V home. 

12. The period since separation has been fraught with conflict and continual litigation either related to the children or to property and financial matters. 

13. The father instituted Court proceedings about the daughter’s arrangements on 2 September 2004 when he sought both interim and final orders for residence of the daughter and for roughly equal time to be spent with each parent. 

14. Before the return date of that application, and on 15 September, proceedings were brought in the local Magistrates Court, at the mother’s instigation, for an Intervention Order against the father pursuant to the Victorian Crimes (Family Violence) Act.  It was a curious step in the circumstances, notwithstanding what has been said of the volatile past, because the father was living so far distant and there had been no development since her departure to suggest the need for protection, more particularly on an ex parte basis.  All that had happened to that point was the filing of his application for residence. 

15. After the father was served he defended the intervention order proceedings, but the ex parte order became an interim order which remained in place until his application for revocation succeeded on 5 January.  The defended hearing scheduled for 3 and 4 March 2005 was resolved on the first day by consent orders which provided for withdrawal of the complaint upon both parties entering into mutual restraining orders in this Court, noted to be without admission of need. 

16. While the return date of 7 October was awaited in these proceedings, correspondence began between the solicitors who had been engaged and a bundle relevant to this early period became exhibit 56.  What that reflects is the father’s proposal to go to Geelong with J and have the daughter in his care from Saturday to Monday.  But this was resisted by the mother who would only contemplate contact at her home in her presence and with her father also present; in other words, that the time be brief and supervised.  In the correspondence from her solicitor there was an attempt to give her proposal a basis but nothing substantiated any need for the daughter to be protected in her father’s care by the imposition of such restrictions.  On any review of the evidence of the father’s role as a parent to that point, either to J or to the daughter, there is no reason to suppose he was incapable of taking responsibility for the daughter on his own unsupervised or that he represented a risk in some way to his daughter’s well being.  Notwithstanding the father’s specific proposal about the daughter’s return in his letter of 30 August, it is likely that the mother’s position was crafted to secure the status quo. 

17. In the response she filed in the parenting proceedings on 7 October the mother sought a residence order in her favour and for the father’s contact with the daughter to be ‘as agreed between them or as determined by the court’.  This reflects either a preparedness to have the Court decide what was consistent with the daughter’s best interests rather than any concrete proposal from her as the child’s mother or, in effect, that she be given the right to agree to when contact between the daughter and her father occur.  Not surprisingly, the latter was not the outcome either on 7 October or later on 17 December.  The 7 October orders provided, amongst other things, for the father to have contact with the daughter in Geelong during the day at designated times on specific dates with changeover to occur at a local shopping centre.  Thus began the father’s regular travels to Geelong which he has sustained ever since.  Changeovers were not without their problems, from the perspective of each parent or others involved, and that became the subject of correspondence between solicitors. 

18. Also the subject of correspondence was the son’s impending birth and arrangements surrounding that event.  In the course of it, the father was advised that the birth would be by caesarean section in November, but this was changed to earlier that month and no one, either the mother or her solicitor, advised the father of the change.  Despite his effort to elicit a proposal from the mother about contact with the baby after birth, the letter of 28 October from her solicitor [exhibit 36] made it clear she was not prepared to put one forward, adding

‘We consider it appropriate to wait until the baby’s birth and, assuming that both mother and baby are well, she will then take the advice of medical staff in putting forward a proposal for your client to have contact with the newborn.’

1. It went on to add that the father attendance at the hospital in the absence of the mother’s express agreement ‘will be regarded as a breach of the interim intervention order.’  By that stage, of course, the ex parte order had become an interim order which was not revoked until the father’s application succeeded in early January.  The letter concluded by advising that any application by the father to this Court prior to the baby’s birth would be opposed and the letter produced on the issue of costs. 

2. Undaunted by this, on 11 November the father filed an application seeking orders for contact with the baby.  He was criticised for doing so by Mr Lloyd who contended to the effect it was insensitive or demanding or unreasonable or a combination of all three.  But I do not see it that way.  The father’s approach for some proposal to be put by the mother was reasonable in the circumstances and yet not only did she decline to put a proposition for him to consider, she raised the interim intervention order and costs if he sought to have the matter put up for adjudication. 

3. When he brought his application, from the father’s point of view time was running out because he believed the birth was to occur in mid-November.  The father did not learn of the birth until after he filed his application and then the information came through a letter dated … November to his solicitors.  The birth of a child is undoubtedly a significant development in anyone’s language and the handling of this event, quite unsatisfactory, reflects poorly on the mother who seems not to have sufficiently appreciated, or respected, the role of the baby’s father relative to his birth.  There was no sound reason for her not to agree to some contact after the birth, particularly given the hospital environment and availability of nursing staff, which would not have required her to have any contact with the father. 

4. Orders were made on 15 November enabling the father to spend an hour with the baby later that day and half an hour the next day if he was still in hospital ‘subject to the assessment of an available senior nurse’ and for the mother to forthwith advise when she is discharged from hospital.  There were also difficulties about this. 

5. Despite the order, the clinical notes produced by the hospital record ‘[The mother] is wanting to go home prior to his arrival’, referable to the first visit under the orders [see exhibit 39].  Even in the protected environment of the hospital and the relatively limited duration available the father’s contact would have been thwarted had this come to pass.  At any rate, she did not leave and the father’s visit with the baby went ahead.  But this was not the end of the trouble about it.  She left the hospital after the visit, but she saw the father sitting in his car and she returned to tell hospital staff he was waiting for her and to call the police.  These events are taken up in her evidence by Mrs B who was with her at the time.  The father denies lying in wait for her or anything of the kind and his denial is entirely plausible.  After all, as Mr Richardson SC correctly pointed out, he had no reason whatever to think she would be leaving the hospital that day.  As far as he was concerned, he was to return the next day for the second visit because no one had told him she or the baby would not be there.  The letter from her solicitors advising she would not be there the following day was faxed at 16.25 hrs on 15 November [exhibit 41] and so the father could not have known she would be leaving that afternoon at the time the police were called at 16.00 hrs to remove him [exhibit 39].  Again, by seeking to thwart the contact on the second day the mother casts herself in a poor light. 

1. After his return to Sydney following the 15 November visit the father was contacted by an officer of the Victorian police about an alleged breach of the interim intervention order by reason of his attendance at the hospital.  He attended later that month at the Geelong police station when he provided them with a copy of the 15 November orders and that appears to have put the matter to rest. 

2. Further orders were made on 3 December by consent.  They provided for some short period of contact with the baby son with certain conditions attached, including for the visit to occur at the home of the maternal grandmother in her presence.  An account of the problems that continued is given by the father in his affidavit from paragraph 205. 

3. On 9 December 2004 the mother filed an amended response.  That proposed the father having contact with the daughter in Victoria for 4 hours each Saturday and Sunday and more limited contact with the son at the home of the maternal grandmother and in her presence with certain other conditions attached.  On this occasion she also sought orders about the father’s behaviour, including restraint related to consumption of illegal or non-prescription drugs or alcohol, that he submit to regular drug testing, and that he attend drug rehabilitation and anger management programs. 

4. On 17 December 2004 consent orders were made providing for the father to have contact in two stages which involved moving to overnight visits for the daughter from 16 April.  Collection and return would be at the home of the maternal grandmother and it was agreed counselling would be arranged in Geelong.  Whatever her thinking about the last mentioned restraints, the mother’s consent to those arrangements made no provision for any of them. 

5. As he had to this point, the father travelled to Geelong to have regular contact with the children.  To facilitate that, he rented a motel unit in the area where he has been able to offer some continuity and sense of home during the time spent with the children and he has become friends with the motel owners who manage the premises. 

6. These interim orders did not see an end to problems.  Allegations of non-compliance, inappropriate statements in the daughter’s presence, and poor behaviour of one kind or another are asserted from all sides. 

7. This was accompanied by an escalating dispute about the son’s birth registration, more particularly about registration of his name.  This seems to have begun shortly after his birth when, by letter dated … November 2004, the mother wrote to the Registrar of Births in Melbourne and provided a form of registration [exhibit 37]:

‘I do not have the father’s signature on the registration form as we have been separated since 1 April 2004.
He resides in Sydney NSW whilst I am residing in Geelong Victoria.
I am a single mother and do not have contact with the father.
Please process my application.’

1. Her application was for the child to be registered with the surname of ‘[the mother’s name]’, as is apparent from the reference in her letter.  The separation occurred some months later than this letter suggests but quite apart from whatever might be thought to be gained from that, it contains a misleading representation on anything other than a literal construction of the absence of contact with the father.  More than likely the wording was intended to convey the impression the father was not ‘on the scene’ and thus would have no interest in the child’s registered surname.  Given the father’s stance to that point, the mother must have known that would not be the case.  Nonetheless, she certainly did not discuss her intention to register the baby with her surname nor seek his views about registering him with any name other than ‘[the father’s name]’, as they had after the daughter’s birth. 

2. The dispute was agitated over some months and was ultimately put to rest, for the time being at least, by consent order made on 10 March 2005.  It was agreed  ‘without admission and without prejudice’ to register the son’s birth with the relevant Victorian Department as ‘[…] while noting other matters included the father’s contention that this name should be his final name and the mother’s contention that it should be ‘[both parties’ names] [see certificate exhibit 37].  At the same time they consented to restraining orders as agreed in the local Magistrates Court proceedings on 3 March. 

3. In late January 2005 the son was baptised in the Catholic faith.  The father and mother are both observant Catholics and the daughter had been baptised in the Catholic faith after her birth.  There is no question baptism of a child would be an occasion of importance for any parent in those circumstances.  But the mother arranged the son’s baptism without any consultation with the father or any notice to him, despite his presence in Geelong with J for contact purposes on the very day it took place.  She acknowledged under cross-examination that had the situation been reversed she would have been ‘horrified’ and yet she tried to draw a distinction between that hypothesis and her actions by adding that they were separated.  It is a rather small but nonetheless telling indicator of the mother’s thinking about her role with the children as distinct from their father’s role. 

4. This was followed on 24 February 2005 by further orders which appointed a child representative, restrained each parent from video taping or audio taping one another at changeover, required the mother to provide certain equipment for the son during the father’s contact visits, and restrained both from being accompanied by more than two adults at changeover.  This gives something of an indication of the issues being agitated around this time. 

5. In mid-April the contact with the daughter moved to overnight as previously agreed.  Throughout 2005, until the question of the daughter’s abuse by her father arose in early December, there was considerable activity in the Court process.  No point is served by going into the detail but a few developments can be noted generally:

   (a)On 5 April 2005 the earlier orders of 17 December were varied to provide for the venue for changeover to move to a shopping centre, the mother’s earlier application for change of venue to Victoria was dismissed, and provision was made for financial assistance to be paid by the father for costs of her visits to Sydney for purposes related to the proceedings. 

   (b)The mother’s application to review those orders was dismissed by further orders made on 9 June which also included a notation to the effect that if the children are in Sydney it would be the father’s desire to have contact with them in Sydney should that be practicable. 

   (c)On a number of occasions they amended their applications or responses to reflect different orders or to introduce financial proceedings, including property settlement and child support departure.  Directions were made about the financial matters and preparation of the matter for hearing and there was an interlocutory hearing on 29 November of the mother’s application for interim costs and departure from child support assessment. 

   (d)On 23 November the father became self-represented and filed a Notice of Address for Service. 

6. There were also throughout the year constant difficulties of one kind or another associated with the contact arrangements and other matters related to the children and there was a steady stream of correspondence exchanged by their solicitors agitating issues as they arose.  The tone of that correspondence seems to have done nothing to ameliorate the conflict and its growing volume could hardly have been within the financial reach of either client.  Again, it serves no purpose to go into the detail of the evidence about this period; a general indication of some of the issues will suffice:

   (a)From around the middle of the year it is alleged in the mother case that on many occasions the father was late in returning the children. 

   (b)It is also alleged there were occasions the father made inappropriate remarks in the presence of the children; for example, ‘The kids don’t belong to you. These are my kids’, ‘you people are fucking disgusting.  They are not yours.  You have no idea’, ‘Get away, go away you bitch’ [referring to [the mother]] ‘they’re not yours, you just back off’. 

   (c)The father, it is alleged, followed the adults after changeover return and took photographs of them.  It is also alleged he drove past the mother’s home slowly and drove past the maternal grandmother’s home on several occasions. 

7. The father denies conducting himself in this way and has his own set of grievances about inappropriate conduct by those present at contact changeover.  There can be no doubt the situation throughout this period was tense, very likely all those involved harboured a hostile frame of mind, and I very much doubt there is any high ground to be taken by anyone, including the father.  Yet I am not convinced the father’s conduct was accurately described.  One of the small but cumulative components leading to the overall lack of confidence in the mother’s reliability is to be found in the evidence about one aspect of the father’s behaviour; namely, he was in effect ‘stalking’ her by driving slowly past her home.  On her account of it she had no uncertainty about what she saw or about the driver being the father.  The level of concern it aroused in her was such that she called the police and made a complaint.  Yet what was ultimately demonstrated is that the father was not in Victoria on the occasion she nominated; he was able to produce boarding passes for flights he had taken back to Sydney. 

8. Mr Lloyd made submissions directed to exculpating her from criticism, but in the final analysis the merit lay with Mr Richardson’s submissions to the effect that the cross-examination on her evidence was not a ‘memory test’, she had given very specific evidence about timing and about the father’s behaviour and her distress as a result, and she steadfastly maintained the detail she had given.  All the father would have been left with in the normal run of things would have been to assert his denial, but in this instance his fortuitous departure from Melbourne on the occasion she nominated and his retention of the boarding passes provided the opportunity to test her evidence.  She failed that test.  In circumstances where there is nothing else of sufficient probative value to corroborate her evidence about it, I accept the father’s denial. 

9. During 2005 there were times the mother came to Sydney with the son for reasons associated with the preparation of the hearing in one direction or another and yet the opportunity was not taken to allow the son to spend time with his father.  There is evidence of notice given by her solicitor’s letter of 30 August of her arrival the following day [exhibit 46], but there is also evidence she booked her flight days earlier on 26 August for travel on 31 August [see exhibit 60].  This is in circumstances where she must be taken to have known that the father, who had been travelling constantly to Geelong to see the children, would wish to take the opportunity to spend time with the son while she went about her business.  If that was not sufficiently clear to her from his direct requests [exhibit 46] she must be taken to have been aware of the notation to the orders of 9 June to that very effect. 

10. The mother alleges certain troubling behaviour being exhibited by the children, more particularly by the daughter, in the second half of 2005; for example:

    (a)She maintains there were occasions the children were distressed and crying and the daughter was reluctant on more than one occasion to go with her father.  She returned with a bruise in June and complained her father had smacked her. 

    (b)From a date the mother identifies as 30 July, it is her evidence that the daughter did not want to go on contact, she cried and said repeatedly ‘stay, my mama’.  This reluctance was demonstrated on each occasion the mother took her to the shopping centre [see para 143] when the daughter would say ‘no go, stay mama.’ 

    (c)It was the mother’s further evidence in her affidavit sworn 20 January 2006 [paras. 147, 148] that the daughter had been toilet trained in about December 2004, but in April 2005 the daughter began wetting and soiling herself [see para 147], pulling at her hair and leaving it broken off on the top of her head, biting her fingernails and asking for her dummy constantly rather than only at bedtime.  It was her further evidence that when the daughter returned from visits to her father she was ‘very clingy and sensitive and will not let me out of her sight.’  On some occasions she came home she seemed ‘dazed’, she was often distressed and cried for a very long time, repeatedly saying ‘mama, no go’, and she frequently woke during the night calling out for her mother. 

11. Given this report of regressive and very troubling behaviour being exhibited by the daughter during 2005, it is instructive to turn to the Family Report for which interviews were conducted on 11 October 2005.  Having set out some preliminary matters, including the outcome being proposed by each at the time, the reporter identified the issues in dispute as being who was responsible for the violence, the mother’s attitude to the father’s role in the children’s lives, current and past drug use by each, what arrangement would be suitable given the children’s ages, and who can provide the most appropriate care for the children.  She went on to record at some length the substance of the interviews conducted where the history of the relationship and events since separation were spoken about.  The concluding recommendations have been superceded by later developments, but in recording the mother’s account of the daughter’s behaviour this was said:

20.  [The mother] told counsellor that [the daughter] is often tired when she returns to her after contact and that she is worried that [the father] may involve her in too many activities.  She said that since overnight contact commenced [the daughter] is extremely unsettled when she returns home.  She has, according to her mother, started biting her fingernails, and pulling her hair out.  She said she has also begun to be ‘very clingy’ and according to [the mother] seems to have difficultly (sic) in separating from [the son]  as well as her mother.’

1. This is a somewhat less expansive description of [the daughter’s] behaviour to that given in her affidavit, with no mention of regression with her toileting and ‘difficulty in separating’ giving a less urgent picture than the repeated pleas of ‘no go’ and ‘stay mama’.  The account given of the reporter’s interview with the maternal grandmother also conveys a somewhat different picture of the daughter’s situation at the time:

‘29.  [The grandmother] said that when [the daughter] has contact with her father she is happy to see him, although she is often distressed when she first leaves her mother to go with her (her grandmother) but she is usually distressed only for a short time.  [The grandmother] told Counsellor that [the daughter] often cries when she comes back to her mother.’

1. These passages of the Report can be taken to represent an accurate account of the interviews with all concerned. 

2. This brings events to December 2005 when the spectre was raised of abuse of the daughter of a sexual nature by the father.  The allegation has its genesis in the mother’s report of statements made to her by the daughter on return from her father’s care on Sunday 4 December.  This was repeated on subsequent occasions.  Her case also includes evidence from her mother and Ms C of similar statements made by the daughter to them separately, implicating her father in the same kind of wrongdoing.  The evidence will be discussed later when this issue is addressed separately. 

3. After he was notified of the allegation by the independent children’s lawyer on 5 December, the father had the matter re-listed, contact ceased, and it came before the court on 13 December when orders imposed supervision on his contact with the children.  The supervisor appointed was the Ms J who managed the accommodation where the father stayed on those occasions.  The father sought a review of those orders but it seems to have been adjourned. 

4. This was followed almost immediately by concerns from the mother that the motel owner was not fulfilling her responsibilities as supervisor.  Despite a previous friendly exchange between them, the concern appears not to have been taken up with the Ms J but a private investigator was engaged to conduct covert surveillance of the premises while the children were with their father. 

5. Mr L was engaged and he went to the premises on 11 February.  The effect of his evidence given in his affidavit filed 17 February is to allege Mrs J left the father alone on that day for about an hour while she was in the reception area of the motel.  Some days later Mrs J and her husband swore affidavits which maintained they were adhering to the December orders.  That drew a response from Mr L through another affidavit sworn 24 March though not filed until 9 May.  He had returned to the premises on 28 February and he produced a sketch plan of the layout and his observation post.  His evidence otherwise reasserted what he had said in the earlier affidavit.  It is a pity the matter was not raised more directly or investigated more fully because it was established that there is a connecting door between the reception/office area and the unit and that had not been mentioned in any of the despatches.  Mrs J’s evidence of her fulfilling her responsibilities as supervisor is accepted and the allegation there was some shortcoming in her vigilance is rejected. 

6. In the meantime, while this issue was unresolved, contact was suspended and the father brought two separate contravention applications in February and March 2006.  They were ultimately adjourned to the first day of the hearing in May but (sensibly) not pursued. 

7. There were other proceedings in late 2005 and early 2006 related to trial preparation, discovery and to the financial dispute.  It included orders on 20 December for departure from the current child support assessment and set the obligation at $500 per month. 

8. There was also an order appointing Dr Q to report on the parenting proceedings and the interviews for that were conducted in Sydney in mid-March.  By that time there had been a period during which the father had had no contact with the children because of the dispute about Mrs J’s supervision and contact had only been restored on 11 March, just prior to the interviews, with the appointment of a new supervisor, Mrs R.  Dr Q’s report and her subsequent oral evidence will be referred to later when making remaining assessments.  Suffice to say here that nothing has undermined her expertise or the soundness of her opinions and I have due regard for her evidence. 

9. In the period the hearing was adjourned part heard the father applied to vary the orders of December 2005 and consent orders were made to that effect on 15 August providing, amongst other things, for an extension of the time the children would spend with him on contact weekends and appointing a range of possible supervisors, including Mrs R and her daughter, Ms R, along with the father’s mother or sisters. 

10. Finally, at least so far as the chronology is concerned, further orders were made by consent on 18 October when all of the evidence related to the parenting proceedings had concluded and the matter was again adjourned for reasons related to the unavailability of the real estate valuers.  Those orders restored Mrs J as a supervisor and otherwise related to time the children would spend with their father. 

11. It will be convenient now to return to several issues of disputed facts that remain unresolved. 

Violence & abuse

1. Each has described many incidents of violent and abusive behaviour reaching back to 1998 early in the relationship, and mention has been made already of the many occasions when police were contacted to intervene.  Without being in any way comprehensive, there are allegations by the mother that the father broke her tooth during an assault, he punched in the face with a closed fist, he hit her in the abdomen while she was pregnant, he threw objects at her, she sustained bruising on her arms and legs on occasions as a consequence of his assaults, he has spat on her and kicked her, and he has belittled and verbally abused her.  The father denies it.  On his case, she has a volatile temperament and she was the instigator of violence and abuse.  In her evidence she has turned around on to him what was in fact her own behaviour. 

2. The gap this starkly marks out cannot be written off to two people having a different perception of the same event or something of that ilk.  If the mother’s account of the father’s behaviour is correct, then the inevitable conclusion would be that he is an individual with violent and unpredictable tendencies who has no respect for others, more particularly someone with whom he is in an intimate relationship, and who is prepared by deceit to point the finger of responsibility at his victim rather than acknowledge his own anti-social behaviour.  Similarly, a very adverse view would have to be taken of the mother if she conducted herself as the father described and she addressed that not only by advancing false denials but by accusing him of the kind of behaviour she described in her evidence.  Obviously there were dysfunctional indicators in this relationship even before they began living together.  It cannot be doubted that in the many uproars over the years they were both participants, and nor can it be doubted this was played out at high volume in an unconstructive way that at times became physical.  But I do not accept the father’s conduct has been as the mother described it, either in her evidence or in discussion with Dr Q.  Mr Richardson’s submissions on this topic were well founded and consistent with my own analysis of the evidence which follows:

   (a)The broken tooth incident – and both agreed there was such an occasion - occurred in Melbourne in March 2002.  On the mother’s account of it, the father picked her up and threw her to the floor and kicked and punched her in the head and face while she lay on the floor.  Her tooth broke.  The father, on the other hand, describes her as being affected by alcohol and tripping when she bumped against the wall and damaged her tooth.  She already had problems with veneers being damaged from grinding her teeth [exhibit 42] but in any event the dentist she consulted the next day, Dr W, did the necessary repair.  His notes identify the work done but do not identify the cause of the damage and therefore take the issue no further.  There are photographs taken of the mother at two different events in Melbourne at the time [exhibit 43], either at the event that followed the incident or another event.  In neither photograph is there any indication of any injury or disfigurement or marking on the mother.  Had the attack by the father been such as she described it, being punched and kicked in the head and face as she lay on the floor, it is very likely it would have resulted in some kind of marking.  Make up might camouflage some markings but would surely be of limited utility with the results of such an attack as she described.  There is an air of implausibility about her account of what happened and the father is more likely to be accurate. 

   (b)On 5 July 2003 there was the incident prior to a visit to friends at P.  the mother alleges she was pushed by the father, she tripped and fell, and he then spat on her face and began kicking her before walking away.  She said she was covered in bruises and, persuaded by the father to go to the party, she wore a long sleeve top and used make up to cover the marks.  Yet there are also difficulties with this evidence.  Contrary to what she said of it in her affidavit, in her oral evidence she made no mention of being kicked and nor did she say anything about being bruised on her arms.  Again photographs were produced [exhibit 44] and while they cannot be seen as decisive by any means, there are no visible markings or sign of any swelling or the like. 

   (c)There was another incident on 26 July 2004 at the V home when police were called.  In the description he gave of her uncontrolled behaviour, the father alleged she kicked him in the back.  He was challenged about this and it was put to him that she had not kicked him at all.  Notwithstanding the denial implicit in the question from her counsel, the police record [exhibit 30] notes her acknowledging she did kick him and when she came to give evidence about it here she conceded she kicked him but said it was in the leg rather than the back. 

   (d)The mother denied steadfastly that she had taped arguments on a hand held recorder and, despite the opportunity to retreat from this position, she insisted the father was the one who did the recording, not her.  Yet in the recording that was tendered various passages demonstrate this to be false.  The content in parts is consistent only with her being the recorder: [her voice] ‘I’m taping you, I’m taping you’ and ‘he thinks I’m not taping’, ‘that is why I have a tape recorder’ and ’you’re being recorded’, she confirms to the father she is recording, ‘I’ve caught him..aren’t I glad I’ve got this tape recorder to do it’, ‘I’ve walked in with it on…so now you’re caught with your lies.’  Confronted with this, the content also puts paid to her explanation that she wanted him to believe she was recording him.  I am satisfied her denials were false and there was no basis for her to have it put to the father that he had falsely denied making the recording.  It indicates in an incontestable way the unreliability of her evidence. 

   (e)The evidence of several of the mother’s witnesses included reference to this issue of violence and abuse but none of it was very helpful in her case.  In many instances the witness was relaying what the mother had told them of the father’s conduct towards her rather than what they had observed.  That applies to the evidence of her sister, and Ms S and Ms D, and nothing of any particular relevance arises from the affidavit of Ms N.  Her father’s evidence included reference to an observation of bruising on 12 August 2004 when he went to the V home and yet she made no mention of being bruised on that occasion or the father causing it, so that has no corroborative value in any probative sense.  The maternal grandmother refers to an occasion when she came into the room in the aftermath of some incident but nor does that provide corroborative support.  Indeed, Dr Q reports the maternal grandmother telling her that in the past she had ‘no concerns about [the father] and thought he would do the right thing…’ and that she ‘knew’ about the violence, ‘they argued all the time and there was a lot of pulling and bashing.  In the end [the maternal grandfather] said it was better for [the mother] to come home and have the baby and after they could try and sort it out.  [the maternal grandmother] thought they would sort it out but it got worse.’  She also told Dr Q ‘the two of them are like fireworks together, they're better apart. They never got to the bottom of their problems.’  That is probably a reasonably accurate analysis of the situation.  Mrs B’s evidence relates to admissions allegedly made by the father of being violence, amongst other things, during counselling with her in mid-2004 but Mr Richardson’s submissions about the comparison of her earlier affidavit [exhibit 48] and a later affidavit were sound and throw into question the reliability of her account. 

   (f)Dr Q assessed J as an intelligent, courteous and likeable lad and some of his comments during interview were about violent behaviour though he identified that as coming from the mother and not his father.  He described it being ‘…a bit scary, she would scream a lot, I saw her punch dad and hit dad.  In the middle of the night sometimes she'd be screaming at him.  But she could also be friendly too' and ‘[the mother] was always screaming, she broke windows and slammed doors.  One night dad was trying to get away with me and she punched him in the face and he was bleeding and he had to struggle to get in the car with me and she lay down behind the wheels of the car, that was really scary.  We went to the police station that time'.  This perception of things by J, consistent with his father’s case, is by no means decisive but it is another small indicator that things were not as the mother would have it accepted. 

   (g)Dr Q said the topic could not be determined on clinical grounds because the personality styles of both would support either hypothesis.  She said there is little clinical evidence the father has a psychiatric disorder but if the mother’s history of his violence and control is accurate then it is likely he is a sociopathic and narcissistic character who presents in a plausible and charming manner.  He may be dominating and controlling and that would be in keeping with the profile of someone who would perpetrate domestic violence.  The mother, whom she regards as having possibly a ‘personality disturbance of cluster B type’ though on clinical ground such a diagnosis could not be made, was observably ‘highly emotional and given to overdramatising’ and she has a personality profile that is both characteristic of women who are prone to victimisation as well as those prone to manipulative and overdramatic behaviour.  But ultimately she was not able to assist from her professional perspective and she left it as a matter for the Court.

   (h)Overall analysis of the evidence leads to the conclusion that the mother’s account of the father’s conduct cannot be accepted and his version of the situation is to be preferred. 

Illegal drugs

1. The evidence of use of illegal drugs, more particularly cocaine, ultimately was the subject of certificates under s 128 Evidence Act and can be dealt with quite briefly just as it was in closing addresses.  I am satisfied that the father did use illegal drugs on occasions, including cocaine, from early in the relationship.  This occurred in the context of social gatherings as part of the so called ‘recreational’ drug use of those with whom he socialised.  He admitted to having used illegal drugs on one occasion at Christmas while these proceedings have been pending.  Dr Q’s assessment of the father is that he does not present any feature of ongoing substance dependence, he appears to have a sound employment history which does not suggest someone with problems of drug abuse.  I am also satisfied that the mother used cocaine during the time they were together but it is likely her usage of drugs was more ‘experimental’ and not as regular as the father’s. 

Abuse/harm to the daughter

1. The mother gave an account of what happened quite soon after the events occurred in her affidavit sworn 20 January 2006:

‘151.At 4.00 pm on Friday, 2 December 2005 I collected [the daughter] and [son] from the husband at the conclusion of his contact period. On the way home in my motor vehicle, [the daughter] and I had a conversation in the course of which she said to me words to the following effect:

"Today I was a nudie catudie."

This is something she usually says when she jumps out of the bath and has no clothes on.

152.When we got home I prepared dinner, fed the children and then it was bath time. While [the daughter] was in the bath, she poked out her tongue and made licking gestures in the air with her tongue. I said:

"What are you doing?"

[The daughter] said:

"Licking."

I said:

"Why?"

[the daughter]said:

"My dad licked my cookie and my bum bum."

[The daughter] and I refer to her vagina as her "cookie". I was deeply shocked at what [the daughter] had said. I did not want [her] to observe my distress. While she was still in the bath I said to her words to the effect:

"Did Daddy touch your cookie and bum bum with his hand?"

[The daughter] said:

"No. Daddy touched my cookie with his tongue. I said `No, daddy. Go away"

I was very distressed at this conversation. I decided that the following morning I would take [the daughter] to my paediatrician for a consultation.’

1. In her later affidavit of 9 May 2006 the mother returned to make some amendments, including correcting the date to 4 December, and to add to the exchange she had with the daughter on that day.  To the exchange preceding the ‘nudie catudie’ comment in the car she added this:

   [the mother]: Did you have fun with daddy?

   [daughter]: Yes

   [Further questions from [the mother]]

   S: We played with the ducks; we played in the park, we watched Winnie the Pooh and we had lunch.

   Today I was a nudie catudie.’

2. She also added this exchange which followed:

   ‘Me: Did you take off your angel singlet and your undies too?

   [The daughter]: Yes

   Me: Did your daddy help you take your clothes off?

   [The daughter]: Yes

   Me: Did daddy take his clothes off?

   [The daughter]: No

   Me: What happened then?

   [The daughter]: I got cold

   Me: Did you put your clothes back on?

   [The daughter]: Yes. Daddy put them back on.

3. The mother related steps she took over the next three days.  The following morning, 5 December, she took the daughter to a paediatrician, Dr S, but he was not available and on advice she took the daughter to a general practitioner, Dr H.  He did not examine the daughter but on his advice she contacted the police and the child sexual assault unit [CSAU].  That same day she met with two police officers from the Geelong CSAU who tried to interview the daughter.  She telephoned the Department of Human Services then and over the next two days and was advised someone would get back to her.  She advised her solicitor of the development and they wrote a letter to the children’s lawyer from whom the father learnt of the allegation.  On Wednesday 7 December she attended a paediatrician, Dr U, and sought advice about what she should do.  His advice, she said, was to go to the Department again and she met with an officer of the Department that same day. 

4. She then relates the daughter making a complaint about soreness on Tuesday evening:

‘158.On Tuesday evening, 6 December 2005, [the daughter] said to me words to the effect:

"My cookie is sore and itchy."

[The daughter] had made a similar complaint the preceding week. On that occasion I examined her vagina and observed it to be red. I thought that she may have eaten too many lollies and not had enough water to drink. I applied Bepanthan cream to her vagina. The next day I examined [the daughter’s] vagina and it appeared to be better.’

1. She reports further statements by the daughter later in December and in January which did not relate to licking but to other behaviour:

159.On 23 December 2005 when [the daughter] was in her car seat in the car with me, driving home, she said:

"I got willies on my leg."

I saw her pressing down on her upper thigh.

160.On 31 December 2005 [the daughter] said to me:

"My daddy pushes my cookie."

She was standing at the time in the bathroom nude after her bath. She started pressing her private parts with her hand.

161.On 7 January 2006 after [the daughter] had her bath, she was standing nude in front of the mirror. She said:

"Daddy said bend over like this."

She bent over, showing her private parts.

162.On 15 January 2006 [the daughter] said to me:

"My bum bum is sore."

She later said:

"Daddy pushes my bum bum like this."

I observed [the daughter] push her fingers into her bottom.’

1. The mother also related in her January affidavit that since the orders of 13 December 2005 the daughter cried each time she is dropped off at the beginning of contact visits and she had said words to this effect:

‘No go Mumma. I stay with [the son] and Mumma. Me no go Daddy's house."

"Mean Daddy, yucky Daddy."

[The son] also cries when he leaves me for contact and when [the daughter]goes without him.’

1. In her later affidavit of 15 February 2006 she elaborated upon changes in the daughter’s behaviour, which she attributed to the ‘last couple of months’ and she reiterated the daughter’s reluctance to go on visits to her father.  She also reported a further statement had been made by the daughter ‘mummy look my cookie is open, my daddy lick my cookie’ accompanied by a licking motion. 

2. The mother was not the only person to whom the daughter made a statement about her father licking her ‘cookie’.  The maternal grandmother swore an affidavit on 16 January 2006 and yet she made no mention of an event she alleges occurred on the evening of 6 December 2005.  She does give an account of it in a later affidavit sworn 14 March.  The maternal grandmother says she had plans to travel to New Zealand the next day, Wednesday 7 December.  She was bathing the daughter and son when she observed the daughter to be washing herself vigorously in the genital area.  Asked what she was doing, the daughter smacked her lips together a number of times and said ‘my daddy licked my cookie’.  The grandmother describes being shocked and not knowing what to say.  Rather than attempt to summarise what followed, this is her evidence:

‘10. I thought that I ought not upset [the mother] about it and at that stage I did not know that she was already worried about this sort of thing.

11. After I got to New Zealand I continued to worry but although I spoke to [the mother] by phone a few times after I went there I did not mention it to her.

12. When I got back to Australia [the mother] then told me about the allegations concerning [the daughter] which she had made and about the proceedings before Judicial Registrar Loughnan.

13. Again I did not tell her anything about what had happened.  I thought that [the mother] been sic) through so much already I just did not want to complicate things by adding my version of events to it and she had already been to court about it, as I then found out.  Nevertheless I realise now having discussed this with [the mother’s] lawyer that it is something about which I should come forward, which I have now done.

14. I did not mention these to [the mother’s] previous lawyer.  My affidavit of Evidence which I swore in these proceedings had already been prepared from a draft I submitted some months before December, and before the incident above referred to.’

1. In her discussion with Dr Q in March 2006 the grandmother spoke of her shock.  Dr Q reports:

‘She was going to New Zealand with her sisters and thought she would wait until she got back.  She didn't discuss it with any of them.  She knows now that [the daughter] had already said something to [the mother] but [the mother] didn't tell her either until she got back.  ([The grandmother] abruptly began weeping and remained quite distressed.)
After New Zealand [the mother] told her about the disclosure but [the grandmother] still didn't say what she knew because she thought [the mother] 'has been through so much'.’

1. There is also evidence from Ms C about the daughter volunteering to her on 9 December while playing in the park: ‘daddy touches my cookie and my bum bum’.  The daughter was asked to repeat it twice and Ms C then told the mother, who was nearby, what had been said.  The mother, she reports, appeared to be very distressed and her eyes filled up with tears.

2. As for the father, after he was notified of the allegation via a letter of 5 December to the children’s lawyer, he promptly made contact with the Victorian police and offered to fly to Geelong to make himself available but that was not considered necessary.  He also made contact with the Department of Human Resources.  By Wednesday he had been advised by the Department they would not be taking a role in the matter and the police had indicated to him that the matter was closed as far as they are concerned.  He denies any wrongdoing towards the daughter of the nature described or at all and he has maintained consistent denials throughout. 

1. After the contact became supervised there was an incident involving the daughter while in his care which occurred in the presence of Mrs J and Ms R. The daughter had been bathed after swimming and, noticing her genital area was red, the father put cream on the daughter’s finger and asked her to rub it in.  The daughter lay on the bed with her legs open wide and started to make a licking motion with her tongue.  When he asked what she was doing she said ‘mummy say’ before repeating the licking and smiling.  Mrs J gave a similar account of what had occurred. 

2. The father also related another statement by the daughter when they were at the beach, though he could not date the occasion.  The daughter said to him ‘you no lick me daddy do you’.  He agreed this was not in his affidavit and nor did Ms R do an affidavit about it though she was present and heard it. 

3. The genesis of the concern about harm to the daughter through acts of a sexual nature by her father is the statement reported by her mother on return from a visit to her father on 4 December.  That was of her father ‘licking’ her ‘cookie’ and ‘bum bum’.  From there, the next evening she complained to her mother of her genital area being sore and itchy.  That same evening the child’s grandmother reports her saying her father had ‘licked’ her ‘cookie’ accompanied by smacking her lips.  This is similar in nature but different in detail to her mother’s report of what had occurred two evenings earlier [ie. licking motion with her tongue rather than smacking her lips and there was no mention on this occasion of ‘bum bum’].  Three days later on 9 December, after the daughter had accompanied her mother to various authorities where attention was given to what had been said by her, there is a report from Ms C of the daughter volunteering a statement implicating her father in similar behaviour though there are also some differences here [ie both ‘cookie’ and ‘bum bum’ were used on this occasion but the behaviour was ‘touches’ and there was no mention of any ‘licking’].  This was followed in December and January, by which time the contact with her father had become supervised, by the daughter’s further statements about her father’s behaviour, though different from that related initially.  These statements combine with evidence of her unsettled and regressive behaviour in the period prior to 4 December which is accompanied by evidence of the daughter’s reluctance to go on visits to her father. 

4. Obvious questions arise: why would the child say these things and why would she behave in such a way?  Broadly, there are two answers: (i) what she said reflects the truth, her father has involved her in some sexual activity for his own gratification, and her unsettled behaviour reflects this abuse and (ii) it is not true, nothing of the kind happened and she has not been an instrument of her father’s abuse.  If the latter is the case, the statements implicating her father in wrongdoing require explanation for which there is plainly more than one hypothesis.  What can be dismissed here without the need for discussion is that the perpetrator is someone other than her father.  That is because her father is directly identified in the statements reported.  What can also be dismissed, for obvious reasons that require no elaboration, is that the untruth is a vindictive act against the father by the child.  There are other possibilities: (i) There occurred some innocent act by the father which was misinterpreted by the child and relayed to the mother and later by leaps and bounds to others.  (ii) There was some account given by the child of an event while in her father’s care that was misinterpreted as an act of wrongdoing by the mother, perhaps from heightened over-vigilance about the topic, who thereafter acts upon a genuinely held but mistaken belief of risk of harm and the child, caught up in the mistaken belief, acquires an understanding of the misinterpretation which, though unrelated to her experience, is afterwards repeated to others.  (iii) Some event was innocently related by the child to the mother who seized upon the opportunity, through elaboration and direction in the telling, to manipulate the child into saying the father had done something wrong and thereafter the mother sustained repetition of the child’s reworked telling through ‘coaxing’ by various forms of direct or indirect reinforcement.  This is not exhaustive of the possibilities but sufficient to consider in this case.  Being a serious issue, it falls to be considered by the standard referred to in s 135 of the Evidence Act. 

5. Dr Q concludes that clinically there were no indices of concern about the daughter being abused by her father.  Responding to a question I asked about the conceptual framework for arriving at a conclusion, she nominated various factors considered: whether the language of the allegation is age appropriate for the child; reports of the child's behaviour and whether that is consistent with what is alleged to have occurred; importantly, the nature of the relationship between the child and each parent; the child's general adjustment; whether sexualised behaviour is displayed by the child and if that has been witnessed by anyone other than the reporting parent; the nature of the child's play and any anxiety manifest in that play; the emotional state of the parent and how that might be related to their understanding of what is heard or observed; and the apparent motivation and predisposition of the parent to perceive things in certain ways.  In assessing whether a parent is making false allegations, personality style is a factor to consider.  If a person is manipulative and devious and self-interested that is an important consideration.  If, on the other hand, a person is highly emotional it may be they can over-react grossly to a situation without intending necessarily to be devious. 

6. These matters give rise to a number of further observations about the evidence:

   ·The father has been consistent in his denial of any abuse and he acted upon that denial immediately the allegation came to his attention by offering his cooperation to the police and the Department in Victoria.  Of course denial and cooperation with investigating authorities is predictable and does not rule out inappropriate behaviour, but it is acknowledged nonetheless. 

   ·In circumstances where it was not unusual for the daughter to refer to being unclothed after a bath as ‘nudie catudie’, the exchange the mother relates having with her in the car is puzzling.  There was nothing in the history that would link the daughter’s earlier comments with an enquiry about her father’s state of undress and the mother’s question ‘did daddy take his clothes off?’ stands out as being entirely unconnected to the conversation, more particularly as she accepted there was nothing untoward about the circumstances at that time.  It strikes an odd note and heads the conversation in a direction that had not been indicated by the child. 

   ·The statement reportedly made in the bath that evening is straightforward and absent any experiential content.  Having told her mother why she was making licking gestures with her tongue, the mother then went on to ask if her father had touched her with his hand.  Why this would be asked given what the child had already said is not apparent, but the daughter gave quite a sophisticated response for a child just over 2 ½ years of age: she rejected the proposition contained in the question and returned to the specifics of what she had first related, ie the touching had been with his tongue, to which she added the protest she had made to her father.  This level of articulation and distinction of the facts stands in contrast to the assessment made of the daughter by authorities the following day which I shall come to shortly. 

   ·The mother made no mention of her telephone call to Ms S that evening around 9pm – 9.30pm, but Ms S describes her as ‘crying and hysterical’ as she related what the daughter had said.  No doubt the daughter was asleep at that hour and was not able to overhear her mother’s end of the conversation.  But calling Ms S is an odd response in the circumstances because the mother would have it that she was shocked and distressed by this revelation and she had a belief the daughter had been sexually abused by her father.  Yet she did not call any of her family that evening for support and comfort, particularly her mother with whom she has a supportive relationship despite her mother being around and available then and in the next few days.  In fact, the maternal grandmother cared for the children on Tuesday evening, or at least she bathed them that evening, yet there was no mention by the mother to her mother even on that occasion of what the daughter had said Sunday evening or what she and the daughter had been doing with doctors and police the previous day.  It emerged from the mother’s cross-examination that she did tell her father about it the next morning but none of that is in her evidence or his.  The failure to say anything to her mother, despite her mother’s involvement with the children on Tuesday evening, is a striking omission and remains inexplicable. 

   ·Even more remarkable is the fact that the maternal grandmother did not relay to her daughter on Tuesday evening what the daughter had said to her.  Instead, she left for New Zealand the next day knowing as she must have that the daughter would be having contact with her father during her absence.  It defies comprehension. 

   ·The documents produced by the Department [exhibits 54 and 55] reveal some anomalies between what the mother told the authorities in the aftermath that unfolded over the next few days and the evidence she gave here.  For example, the mother told the police she was concerned that the daughter had been returned from her father’s care wearing different underwear which she described as ‘strange’ given the child had only gone for the day.  But different underwear was not identified as giving rise to concern in anything she said here and it is difficult to see how it could be strange.  After all, here was a child who was involved in various activities with her father, the mother acknowledged she went swimming while with her father and she would often come home bathed, and on her account of things this was also a child who had regressed with toileting.  A change of underwear by the end of the day would hardly constitute a basis for concern.  To present it as such suggests some attempt to construct a case of abuse with authorities. 

   ·The daughter was interviewed by police on 5 December.  However, the Department’s documents [exhibit 54] reveal that the daughter made no ‘disclosures’ but the report also is suggestive of the mother intervening to establish a case:

   ‘The disclosures reported by the mother were full sentences and appear more advanced than what [the daughter] would be capable.  When asked about her father [the daughter] stated things like “Daddy fun” she then said “Don’t like Daddy’ – but did not indicate why (There was no indication of distress in her presentation).  [The daughter] was difficult to understand at times.  She would use baby talk.  [The mother] would interpret and state she said “Cookie”.  This was not heard by the SOCAU members.  There is question as to whether [the mother] may be reading into the child’s comments’

   ·The Department’s records also note contact from Dr U on 7 December while the mother with the daughter were in his reception.  He said the mother had reported the daughter complaining of a sore genital area and she was concerned the daughter may have been sexually abused.  Of course this was the morning after the daughter had complained to her mother of being sore and itchy the previous evening.  But in giving that evidence the mother had related there had been a similar problem the previous week and she had successfully treated it overnight with the application of cream.  In any event, he declined to conduct an examination and arrangements were made for the mother to meet with someone from the Department. 

   ·That occurred later in the morning.  Part of the discussion with the mother included the advice to her that the police had deemed it not possible to interview the daughter given her age and level of development, they would not be interviewing her either, it might be the mother’s interpretation of what the daughter had stated that led her to suspect sexual abuse, and there were no other behavioural patterns or indicators to suggest abuse had occurred.  She was advised that no further action would be taken by the Department though further options were explained to her.  The father was advised of this that day.  Later the mother rang the Department to say she was not satisfied with the response and what had been said to her earlier was reiterated.  This remained the Department’s position after further notifications in December and their file closed.  The overall impression of the mother’s role in this contact with authorities, as reflected in the Department’s records, is one of trying to ‘up the ante’, as Mr Richardson put it, because she wanted them to take action on what she related as her concern. 

   ·Obviously the daughter was involved in the events of Monday 5 December in a direct way and she could not have avoided exposure to conversations and the atmosphere around her that day.  By the time she made the second statement implicating her father in wrongdoing, to her grandmother on the evening of 6 December, she had this experience behind her and more so by the time she made further statements on 9 December and thereafter.  These later statements have to be seen in that light. 

   ·The report from the father and Mrs J of the daughter saying ‘Mumma say’ while making a licking motion and smiling tends to suggest the child is indicating her mother is the source of what has been said and the statement ‘you no lick me daddy’ speaks for itself. 

   ·The mother identifies different time periods for the start of unsettled and regressive behaviour by the daughter - from around mid-2005 or a couple of months prior to her affidavit being sworn in late January 2006 – and she has not consistently identified the behaviour exhibited [cf. her affidavit and her interview with the Family Consultant in October 2005].  Nor is there an alignment between the mother and her mother, who was involved in the changeovers, about the daughter’s attitude towards going on contact visits.  These are not compelling or necessarily highly significant in the analysis of the issue but they are factors to consider nonetheless.  It would be unrealistic to expect there to be total alignment of all relevant facts when they are recounted at different times in different contexts.  And yet it is reasonable to expect that care be taken to give an accurate account of things relevant to an assessment of what has happened to a child.  That is because, as they do here, inconsistencies tend to suggest an attempt to ‘gild the lily’ so as to have the allegation accepted or to ensure the parent’s concern will prevail. 

   ·What the history also reveals from the point of separation is a consistent pattern of attempts by the mother to exclude the father or to inhibit in some way his relationship with the children and this is evident right from the beginning of the separation.  Even if the move to Victoria is written off as understandable in the aftermath of the marriage breakdown, the mother proposed only short term supervised contact between the daughter and her father at the outset, she made no proper proposal for him to meet with the newborn baby prior to the son’s birth, such contact as was ordered at the hospital was beset by unnecessary drama, her plan to have the baby registered with her surname, unlike what had occurred on the daughter’s birth, was plainly designed to sever a link with his father, and the arrangement for the baptism to the father’s exclusion is without explanation other than a failure to appreciate his role or to accord it sufficient respect.  There were, therefore, steps taken right from the outset to inhibit the father taking a proper parental role with the children.  The allegation of abuse has meant that until it could be examined his contact with the children has been curtailed not only by reduced time in his care but by the restrictions of supervision.  The shadow this sort of history casts over the abuse allegation gives rise to the question whether it may be but one more tool to achieve the goal of distancing the children from their father. 

   ·Importantly, there has to be considered the nature of the relationship between the daughter and her father.  Dr Q’s assessment of this has to be seen in the context of the assessment made of the daughter’s relationship with her mother.  Dr Q described the daughter as ‘fretful and clingy’ around her mother for a long time after the interview process began.  Initially, while explaining to the mother the nature and structure of the interviews to follow, the daughter responded to the news that her father would be coming with 'I don't like him, he's yucky'…’cause he's yucky’.  As Dr Q continue to talk of the structure of the interviews

‘…there was very abruptly a howl from [the daughter] who began sobbing and clinging to her mother and saying ‘I don't want to go to daddy's house’.  The mother and grandmother made appropriate efforts to both comfort and distract her but [the daughter] continued to cling to her mother in considerable distress.’

·Interspersed in her report is reference to the daughter clinging to her mother, referencing her mother frequently with gesture or word, fretful and clinging at the mention of her father, being unsettled and vigilant to noise, and later she said ‘I don’t want to’ even though the subject of her father had not been raised again.  It was an hour into the interview process before she was able to play by herself.  Dr Q concluded the daughter is an anxious child who is anxiously attached to her mother and is anxious/fearful about contact with her father. 

·Yet when the daughter met with her father, her response one of pleasure to see him.  Dr Q said it was immediately apparent the daughter had a much more secure relationship with her father than with her mother and the father was competent and self assured and obviously an experienced parent.  In this context, she said, the daughter was a different child, at ease, chatting, laughing, and obviously hugely enjoying her interaction with her father and older brother.  She also noticed that the daughter’s speech was more intelligible when with her father, which suggested she was more relaxed.  Her conversation suggested many positive associations of her time with her father and fondness for the people she sees at the motel.  It was notable that the daughter was very comfortable with her father and it was apparent, in Dr Q’s opinion, that both children are ‘very warmly and securely’ attached to him.  When it was time to terminate the session, the daughter immediately became very tearful and distressed and was reluctant to say goodbye to her father but seemed to settle once reunited with her mother. 

·This contrasts quite markedly with the daughter’s verbal ‘rejection’ of her father while in the company of her mother before seeing him.  And it is quite troubling that the daughter would apparently feel the need to articulate more than once something negative about her father in her mother’s presence and her anxious presentation with her mother is also troubling.  It stands in stark contrast to her presentation and the nature of her relationship with her father which is one more indicator, and an important one, that there is no substance to any concern for the daughter’s well-being while in his care. 

1. Dr Q pointed out that the strength and security of the daughter’s relationship with her father can never absolutely exclude the possibility of sexual abuse, but she concluded from this and other factors that there were no clinical indices to give rise to concern about the daughter being abused by her father.  In my assessment, examination of all the evidence, including hers, leads to that very same conclusion.  I am comfortably satisfied that this child is at no risk of harm in her father’s care. 

Part VII considerations

1. In considering what parenting order to make s 60CA requires the best interests of the children to be the paramount consideration and best interests are determined by having regard to the primary and additional considerations set out in s 60CC.  It is also necessary in making a parenting order to ensure that best interests are met by reference to the objects of the legislation and to the principles underlying those objects as set out in s 60B.  This framework can be approached first by addressing the additional considerations in s 60CC. 

Additional considerations

(a) views and factors relevant to their weight

1. Neither of these children is of an age or stage of maturity to express views about their arrangements.  Their wishes have to be drawn not from what they say but from assessment of other indicia such as their attachments and relationships. 

(b) the nature of their relationships

1. There has been discussion already of the nature of the daughter’s relationship with her parents and that need not be repeated in any detail here.  Suffice to say she has a comfortable, relaxed and secure relationship with her father.  It is also apparent from Dr Q’s assessment that the son is closely attached to his father.  There are a few observations to be made about this:

   (i)The mother identified the children having a close relationship with their father on 6 September last in a discussion about the proceedings but, as Dr Q observed in response to a question from Mr Lloyd, the orders she seeks [exhibit 14 tendered later on 9 October] could hardly be said to reflect that viewpoint.  Therefore it seems her acknowledgement of those positive relationships is not able to be held for long. 

   (ii)It bears observation, as Mr Richardson noted in effect during his submissions, that the nature of the father’s relationship with the children has been developed in quite difficult circumstances and it has withstood considerable challenges, not only by reason of the place and travel it has entailed but also because it has been the subject of resistance from the mother from the outset of their separation in one way or another. 

   (iii)Mr Richardson also pointed out, correctly in my opinion, that the father’s good relationship with both children has to be seen in the context in which it has been developed for some time now.  The effect of the submission is that good relationships have been developed but that has been in restricted circumstances where the usual range of opportunities have not been available and it is far from ideal that a parent should spend time developing their relationship with children, particularly young children, in an environment that is not the parent’s home.  Nor, in the father’s case, are the circumstances ideal because of his responsibility for J who accompanies him on the travel on occasions.  The father has been able to create an environment at the motel that is familiar and has some sense of homeliness but it is far from satisfactory because, amongst other things, there is not the opportunity to participate in the day to day arrangements of their own home environment and nor is there the opportunity for the ordinary participation in aspects of the children’s lives or their father’s life.  No matter how welcoming and agreeable are the managers of the lodge or other around them, it is no substitute for relationships being developed in a family’s home setting.  I agree.  It is an important aspect of the children’s future arrangements and it would be a rather bleak future if there were to be a continuation of what has occurred in the past.  Quite apart from the undesirability of that from the perspective of the children’s relationships, it could hardly be accepted as a practical reality for the future given the cost and travel involved, not to mention J’s needs. 

2. As discussed earlier, the daughter’s relationship with her mother is marked by anxiety and she is anxiously attached to her mother.  The source is not clear but it is troubling and plainly requires remedial attention to arrest the detrimental effect this can have on her opportunity for a healthy development.  The son who is still very young is obviously close to his mother who has been his significant primary carer since birth.  The concern expressed by Dr Q, however, is that this anxiety could develop with the son in time also and that would be to his considerable detriment. 

3. Both children have had ample opportunity since they have been in Geelong with their mother to develop their relationship with their maternal grandmother and other family members including their grandfather who seems to visit reasonably regularly from Adelaide.  There is no reason to doubt that these relationships are a source of enjoyment for the children or that they benefit from the association.  Those relationships have not been assessed but Dr Q did have the opportunity to see the mother with the children.  Her observation, which I accept as sound, is that there was obviously a very strong bond between the daughter and her grandmother and the grandmother was extremely loving and attentive. 

4. There has been much less opportunity for the father’s family to spend time with the children in the circumstances that have prevailed over the past two years and more since separation.  Nonetheless, there is no reason to doubt here either that association with family members would be enjoyable and beneficial for the children given the opportunity.  Indeed, it is important for these children to have the chance to spend time developing relationships with their father’s family and thus come to know more closely both sides of their extended family, rather than one. 

5. Finally though not of least importance, there are the children’s relationships with their half brother, J.  It is clear from Dr Q’s evidence that J regards both children as important and it is also clear that the children, the daughter in particular given her age, is close to J and enjoys his company.  They are important sibling relationships which need the opportunity to develop as sibling relationships do.  That is best done in a natural way in a familiar home environment where all the usual give and take of sibling life is acted out. 

(c) parents’ willingness and ability to facilitate and encourage parental relationships and attitudes to parental responsibilities [as further extrapolated by the considerations set out in ss (4)]

1. So far as the father is concerned, there can be no doubting his commitment to the children.  He has maintained his relationship with them by constant travel at his expense to Geelong in order to spend time with them and he has sustained that regime in the face of his obligations to his son who has lived primarily with him throughout.  Nor has the path been without its stresses and challenges, as reflected in the litigation since separation and the volume of correspondence passing between legal representatives.  He has taken sensible steps to provide the children with a familiar and consistent environment during those times.  It is likely that the father’s behaviour at times on occasions of changeover has been less than exemplary and in all probability he has made ‘snide remarks’, as the mother suggests, of one kind or another.  There is an indicator of subtle criticism coming from him during his interview with Dr Q who observed he ‘tended to implicate [the mother] in a very subtle way with criticisms made very indirectly…partly this was appropriate with [J] being present but the impression was that this might have been part of his style anyway.’  Nonetheless, subject to a further observation to be made shortly, he has demonstrated a proper attitude towards his responsibilities as a parent and that is reflected, if no other support can be found for it, in the close and loving relationship he has with the children.  I certainly have no doubt that he genuinely loves the children or that his participation in this litigation is motivated by anything other than a genuine desire to fulfil his role as a parent and participate as fully as he can in their upbringing. 

2. Nor, I should say, do I have any doubt about the mother’s love for the children nor her desire to do what she believes is best for them.  But it will be apparent from what has been said already that there are aspects of the history that lead necessarily to an adverse assessment under these particular considerations.  Sub-section (4) refers in part to examination of whether a parent -

   ‘(b)     has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)      spending time with the child; and

   (iii)     communicating with the child; and

   …’

3. Several shortcomings in these areas have been discussed in the evidence already.  From the outset of the separation the mother insisted on short term and supervised contact between the father and daughter in circumstances where there was nothing to substantiate any concerns requiring the protection implicit in supervision.  No doubt her allegations of violence and drug taking would be cited to give some support for her stance, but this has been found to be unreliable and in any event the substance of those concerns has to be measure in light of her consent in December to orders that did not reflect her application for orders relating to drugs and drug testing.  The lack of proper notice about the son’s birth, coming three days after the event via a letter to the child representative, is indicative of her attitude to his parental role and that was reflected in her resistance to contact at the hospital after the birth, her misrepresentation to the Registrar about the registration of the son’s birth, and her failure to consider the father in making unilateral arrangements, as she did, to have him baptised at a time when he and J were present in Geelong without telling him.  It is also the case that she has brought the son to Sydney at times when she has been involved in preparing her case with her solicitors or for other reasons associated with the proceedings and she has not given adequate notice to the father.  The letter of 30 August about arrival the next day in respect of travel booked days before speaks for itself.  The circumstance in which Mrs J was removed, in effect, as an approved supervisor also fits within this criteria.  At the end of the hearing the mother nominated Mrs J as a suitable to continue supervision, but by that time months had passed.  Had an approach been made and the situation discussed as it should have been it could have been resolved months earlier and the children’s time with their father facilitated by the presence of a supervisor whom the daughter, at least, viewed positively [see [Dr Q’s] observation of [the daughter] with her father]. 

4. In other respects, unrelated to the mother’s attitude towards the father and her attempts to marginalise his role in the children’s lives, I do not doubt that she has cared for the children well or that she has anything other than a proper attitude towards her responsibilities as a parent. 

(d) the likely effect of any changes in the children's circumstances…

1. This is an important factor for consideration in the overall outcome.  The submissions of the independent children’s representative and of the father would mean that the children would return to Sydney where they would spend significant time in their father’s care which would be shared between their parents which would entail the mother either returning to Sydney or spending significant time here.  If their circumstances remain as they are, the children will remain living in Geelong with their mother.  The mother will continue to have the support of her mother and other family members and friends and there is no reason to doubt that this network of support is very important to her in caring for two young children.  Certainly a continuation of the current circumstances would provide for the children continuity and stability of place and people and that is desirable.  It would also provide a supportive environment for the mother and her feelings about that is a weighty consideration.  Were she compelled to return to Sydney, virtually by the terms of orders, it could be predicted that she would be quite unhappy and resent the imposition of such arrangements.  Given that the children would spend significant time with her on either proposal in the scenario presented by the children’s lawyer or by the father, account has to be taken of the impact, however indirectly, her unhappiness would have on her functioning as a parent.  That is also an important consideration to be weighed in the balance. 

2. On the other hand, the continuation of the current circumstances has potentially serious consequences for these children by reason of the deleterious consequences for their relationship with their father and, it follows, their future development.  It is important, in my assessment, for the children to be put in the position of having their father participate in their lives more fully than has been possible until now. 

(e) the practical difficulty and expense of the children spending time with and communicating with a parent…

1. Clearly if the children remain living with their mother in Geelong to spend time with their father will mean continued expense related to travel between Sydney and Geelong and expense related to accommodation costs.  That would be the situation whether the father is travelling to Geelong or the mother is travelling to Sydney. 

(f) the capacity of parents to provide for the needs of the children, including their emotional and intellectual needs

1. The damaging effect of parental conflict upon children is well documented by research, as is the converse proposition that those who parent cooperatively enhance their children’s opportunity for a healthy development into adulthood.  Both the father and mother have failed to provide for their children’s need in this respect by their inability to address issues as parents in a collaborate fashion.  Whether by dint of the clash of their particular personalities or for other reasons, the evidence does not distinguish one from the other on this score.  Nor, regrettably, is there any cause to be confident there can be change for the future though the disadvantages for their children will be significant unless there is change. 

2. That said, the father’s capacity as a parent is evident to some extent in the way he have been involved in J’s upbringing.  The father and J’s mother have been able to agree about his arrangements, notwithstanding some differences in the past, and some of the credit for that no doubt can go to the father.  Dr Q assessed J as having a very secure and loving relationship with his father and as a young lad with a sound adjustment.  J describes his father as ‘loving, caring and responsible’ as well as reliable.  J’s attributes and his perception of his father reflect well on the father and suggest he is a capable and functioning parent.  This was also the assessment made by Dr Q of his interaction with the daughter and son during interview. 

3. Of course it is now well over two years since the separation and in that time the father has not been tested in the role of caring for the children for substantial or significant periods.  How he would fulfil his obligations as a parent, including his obligation to foster and facilitate the children’s relationships with their mother, is necessarily speculative.  But in my assessment he does have an appreciation of the importance for the children of their mother’s role in their lives - the evidence of Mrs J not noticing any photograph of their mother on the fridge door is relatively inconsequential – and the father can be relied on to provide for the children’s various needs. 

4. In many respects the mother can be seen as a capable and loving parent.  Many of the observations by Dr Q of her interactions and responses to the children reflected that capability and sensitivity. 

5. But that is undermined by the fact that she has not demonstrated an appreciation of the father’s role in the children’s lives as their father and that is of no insignificant consequence for the future of two young children.  Her acknowledgement on 6 September that the father has a good relationship with the children has been noted earlier not to be reflected in the outcome she seeks, but more apposite to the present discussion is that there is no particular basis upon which it can be said that her outlook is likely to change in the future.  If her demonstrable lack of support in this area were to continue into the future there is the spectre of the children becoming alienated from their father as time goes on and that would have serious detrimental consequences for their well being, more particularly having regard to the state of their relationship with him.  In this regard, the mother’s parenting capacity is less than is necessary for the children’s needs. 

6. It is also troubling, though perhaps it is linked with what has just been said, that the daughter has developed an anxious attachment to her mother which is linked to her relationship with her mother.  Despite the warm and loving response the daughter had to her father, for some reason she feels the need to say negative things about her father in her mother’s presence, as she did at the outset of the interviews by Dr Q.  The responsibility for that stark contrast can only lie with the mother that is of concern.  Dr Q was asked to address the risk of harm to the daughter in her mother’s care and she expressed it this way in her report:

   ‘There was no clinical evidence to support the mother's allegations or her fears that the children are at risk with their father.  If the father's history can be relied upon there may be a risk of psychological harm to the children in that she may be attempting to alienate them from him father and is creating a situation of alarm to which [the daughter] is responding by becoming highly anxious.  Clinically there is no doubt that [the daughter] is both highly anxious and anxiously attached to her mother.  Ultimately this may interfere with the child's emotional development. [The son] is relatively unaffected at present but over time is likely to be affected in the same way. 

   The fact that [the daughter] is anxiously attached to her mother but securely attached to her father would suggest that the difficulties for the child lie more in the relationship with the mother.  That the children have a very secure and appropriate relationship with their father provides clinical evidence to support the father's account of his relationship with them.  It is consistent with a situation where a child is reacting to alarm generated by the mother.  This could be because the mother's fears are genuine and cannot be contained (regardless of whether her perceptions of risk are accurate).  If the mother's fears are not genuine then it is psychologically damaging for the child to be rendered so anxious without any basis to the anxiety.’

7. It emerged when the mother was being cross-examined that she had arranged for the daughter to be counselling by a psychologist.  When it took place and for what purpose or the presenting issue along with other relevant information is not known.  Presumably it was not counselling for the daughter as if she were the victim of sexual abuse but more general counselling related to problem behaviour but absent information it is difficult to know what to make of it.  If it was an effort to address the daughter’s anxiety and its link to their relationship, it would no doubt have been useful but its purpose was not identified. 

1. This leads necessarily to a consideration of whether the mother expressed fear that the daughter was sexually abused by her father is genuine or not.  Obviously if the daughter’s initial statement, later repeated from exposure to reiteration and reinforcement, was brought about by the mother manipulating the child into saying something to implicate her father in wrongdoing not only would that suggest her fears are not genuine but it would undoubtedly be a gross abuse in itself.  As stated earlier, examination of the evidence satisfies me comfortably that the daughter is at no risk of harm from her father.  But it should also be said I make no finding that the mother deliberately brought about an abuse allegation or that she in some way maliciously coaxed the daughter into saying something to implicate her father to further her ends.  Such a finding is not open on the evidence.  There must be another explanation which is of more innocent origins.  I do not place a great deal of store on what was said of personality analysis because it seems to me ultimately there was insufficient material for Dr Q to take that very far.  Nonetheless, just as I have taken into account the possibility that the father may not be as he presents but rather a narcissistic and controlling individual, I also take into account that the mother may in fact be a manipulative, volatile, and over dramatic person.  Perhaps the explanation for the origins lies somewhere here but that would be to speculate. 

2. However, just because there is no finding of deliberate manipulation that is not to say she retains a genuine belief that the daughter was in fact sexually abused by her father.  Certainly there are aspects of her presentation and actions consistent with a belief this has occurred.  For example:

   (a)Dr Q described her as looking ‘overwhelmed with horror’ and ‘becoming breathless’ when she spoke to her of the abuse. 

   (b)In her affidavit sworn 15 February she spoke of the counselling she was receiving from CASA [centre against sexual abuse] which she described as being:

   ‘…to help and deal with the effects on [the daughter] from what has happened to her, and for me to deal with the shocking traumatic experience of your child being sexually abused.  I have felt a range of different ways in the past months, from guilty to angry, sad, hurt, desperate, fearful, resentful, I have grieved for [the daughter], and trying to deal with what has happened.  It has been the most painful and difficult times.  I now work on the recovery that we all need.’ 

   (c)How long this lasted is difficult to say because when she came to the interview with Dr Q in mid March she said she was not receiving any counselling though it is possible, as Dr Q went on to mention joint counselling with the father, the reference was to counselling of that kind.  If that is the case, it would appear she made no mention to Dr Q of receiving this counselling to cope with sexual abuse. 

3. On the other hand, there are some contra-indicators about her belief; for example, there can be little doubt that in her presentation to the various authorities in the aftermath of the daughter's statement there is the suggestion of ramping up the facts.  Mr Lloyd said she should not be criticised for being taking on the role of an ‘advocate’ and nor does she shrink from it and that is one point of view.  But in my opinion the more sound view is that reporters of possible abuse of children to authorities who have the responsibility to investigate it need to be clearheaded and accurate about what occurred rather than head the investigation in a direction aligned with their worst fears. 

4. The issue is not a clear and simple one but ultimately it can be accepted that it is quite possible the mother believes abuse occurred.  That will be a consideration in coming to a conclusion about what is in the children’s best interests along with other factors discussed. 

(j) any family violence…

1. The parties had a volatile relationship when they were together and they have been in continuous conflict, albeit played out through legal representatives in the two years and more since their separation.  I have expressed a view about their conflicting views of this issue and need not repeat that here.  It has not been for some time an issue and in my view is unlikely to be an issue in the future. 

(k) any family violence order..

1. The intervention order taken out ex parte and continued for a time in the local Magistrates Court was discussed earlier.  There is no order in operation now and there has not been one since the interim order was revoked in January 2005. 

Conclusion - best interests

1. The considerations discussed so far are relevant to the view that has to be taken about the arrangement consistent with the best interests of these children.  To that discussion there must be added what the legislation refers to as ‘primary considerations’ which are also set out in s 60CC.  They are -

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. These considerations are of particular significance in this case for reasons it is not necessary to repeat.  Both favour the father’s role in the children’s lives being enhanced considerably over what has been in place for some time now.  I am satisfied that the children should have the opportunity to spend considerable time in his care and that he should have the opportunity to take a proper role in their day to day lives and their upbringing.  He has a great deal to offer them, he has a very good relationship with each child, and he is a capable and caring parent.  This calls for an arrangement that would give the children the benefit of his meaningful involvement which entails them spending time in his home wherever that might be with the ability to spend time with their half brother, J, and to take advantage of the guidance and direction their father has to offer them.  By the same token their mother is obviously of central importance to them and it is essential they continue to have the opportunity to spend time in her care and that she take a proper role in their daily lives and upbringing.  She also has much to offer them, notwithstanding the findings about aspects of the decisions she has taken with the children since separation, and they should have the advantages her presence in their lives can give them. 

3. Unfortunately, with the father living in Sydney and the mother in Geelong this presents practical problems.  Ideally, as Dr Q intimated, they would live in the same city and the children would spend substantial or significant time with each parent.  But if their living arrangements remain as they are, that will not be possible and so an alternative solution must be found.  One possibility would be for the father to move to the Melbourne/Geelong area but I accept that is impracticable because he has responsibilities for J who is at school here and who sees his mother who lives in Sydney regularly.  The other possibility is for the mother to return to Sydney but I accept she is firm in her resolve not to do so and of course I also accept she sees her family as providing support for her and she has a settled network established in Geelong.  Obviously it would be a considerable wrench to return to Sydney after this amount of time not to mention the costs involved. 

4. If that is to remain their positions, then the children’s best interests require they be returned to live in Sydney where they will have the better opportunity of their father’s involvement in their lives and have time with their mother in Sydney and in Geelong at times.  As I see it, that arrangement should be implemented without delay.  In particular, there is no reason for supervision of the father’s time with the children to continue and it should cease forthwith.  It should also move to overnight visits for both children.  The relationship both children have with their father, the son included, is appropriate to that.  As I also see it, the parents should have joint parental responsibility for the children, and the children’s time should be spent substantially between their parents leading ultimately to a shared care arrangement or something akin to it when the daughter starts school. 

5. The drafting of orders to implement this view is not without its difficulties.  The children’s lawyer and counsel for each parent helpfully provided draft orders which put their client’s position and certainly there is an alignment between the orders proposed by the father and those proposed by Ms Karagiannis.  But in my view there are difficulties with the detail of each of those proposals but also some I would accept.  While I am reluctant to do so, I have ultimately concluded that it would be helpful and appropriate to defer the drafting of the particulars of the orders to achieve the broad outcome I have indicated until there is the opportunity for some input from the legal representatives after publication of these reasons. 

Name

1. I should also add that the orders I propose about the son’s surname is to provide for him to be known by the [father’s] surname.  That is consistent with the name given to the daughter on birth and used for her in all circumstances, as I apprehend it, until after the separation.  The step taken to register him initially as ‘[the father’s surname]’ and later as ‘[both parties’ surnames] was of the mother’s making and it is not consistent with the interests of either child for her to make long term decisions to the exclusion of the father.  It is not a decision that ought to condoned by orders.  The son ought to be registered on his birth certificate as ‘[the father’s surname]’ the same as his sister and both children known by that name. 

Costs – children’s representation

1. Ms Karagiannis seeks costs of the children’s representation on behalf of the Legal Aid Commission and an order that each parent pay half of those costs.  There is no dispute about that.  However, the father seeks an adjustment to the amount he would pay to account for the $8,800 he prepaid for Dr Q’s report prior to the hearing.  In my view that is a proper adjustment.  There is nothing in this case to indicate that the costs of the ICL representation or the expert’s report should be anything other than shared equally.  One way of going about that, as Mr Richardson SC suggested, is to provide for the mother to pay $20,162 towards the ICL’s costs leaving the father to pay $16,762.  The father sought 12 months to pay and it would also be appropriate to extend that time to the mother.  Orders will be made accordingly. 

Schedule of agreed issues

1.Whether the children should be known by the [the father’s] surname or “[the parties’ surname]”.

2.Whether there is any evidence that the daughter has been sexually abused by the husband.

3.Whether the children, or either of them, would be at risk of sexual or other abuse in the care of the husband.

IF THE ANSWER IS YES -

4.What contact, if any should take place between the husband and the children;

IF THE ANSWER IS NO -

5.What are the appropriate arrangements for the care of the children;

7.Whether the children, or either of them, are at risk of psychological or other abuse in the primary care of the wife.

IF THE ANSWER IS YES –

8.What contact, if any, should take place between the children and the wife;

IF THE ANSWER IS NO –

9.What are the appropriate arrangements for the care of the children;

10.Has there been any effect upon the children of the allegations made by the wife to date;

11.Whether the wife has embarked upon a course of behaviour designed to restrict the children’s relationship  with the husband and his family, especially in relation to the following matters:

12.The relocation of the children’s residence to Geelong;

13.The wife’s attitude towards contact  since the relocation;

14.The wife’s apparent denial of information to the husband in relation to the birth of the son and her apparent denial of any involvement of the husband in the naming of the child;

15.The circumstances surrounding the baptism of the son;

16.The apparent denial of contact to the husband on occasions when he was in Geelong;

17.The apparent denial of contact to the husband and his family during periods when the wife and the children were in Sydney such as the time the parties attended upon Ms M at the Family Court mediation service;

18.The allegation that the husband has sexually abused the daughter;

19.If there is no evidence that daughter has been sexually abused by the husband, whether the raising of the allegation in this fashion has any effect upon the parenting capacity of the wife;

Domestic violence allegations

As to the wife :

20.Whether there is any substance to the wife’s allegations that she was subject to domestic violence and psychological abuse at the hands of the husband during the course of their relationship

21.If so, whether there has been any impact upon the children; whether this makes the husband a poor role model for the children or whether this affects the husband's parenting capacity.

As to the husband :

22.Whether there is any substance to the husband’s allegations that he was subjected to acts of domestic violence by the wife in the course of their relationship.

23.Whether there is any substance to the husband’s allegations that the wife disapproved of and actively discouraged him from having a relationship with J during the course of the relationship and the effect of this upon her parenting capacity.

Allegations of the use of illicit drugs

24.The relevance of these allegations and whether the drug usage has and any effect upon the children or upon the husband’s parenting capacity.

25.Whether the wife was involved in the use of illegal drugs in the course of the relationship.

26.In the event that the wife was so involved, the relevance of her raising these allegations against the husband and the effect if any upon her parenting capacity ;

27.Whether the children’s residence should be relocated to Sydney.

28.The consequences for the children of a separation from J and other extended family who reside in Sydney.

29.Whether the wife would foster any relationship between the daughter, son and J.

30.The ability of each parent to act in a manner that will foster the children‘s relationship with the other parent.

31.The appropriateness of the orders sought on behalf of each party to the children’s ongoing relationship with the other parent.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HARTNETT & SAMPSON