Heath & Heath

[2007] FamCA 148

FAMILY COURT OF AUSTRALIA

HEATH & HEATH [2007] FamCA 148

FAMILY LAW - CHILDREN - With whom a child shall live - Magellan - Presumption of equal shared parental responsibility not to apply - Final orders

Family Law Act 1975 (Cth)

HUSBAND: Mr Heath

WIFE: Mrs Heath

INDEPENDENT CHILDREN’S LAWYER: Independent children's lawyer

FILE NUMBER: PAF 3826 of 1998

DATE DELIVERED: 13 February, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 5, 6, 9 February, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms McCreadie

SOLICITOR FOR THE HUSBAND: Harwood Andrews

COUNSEL FOR THE WIFE: Ms Tornese

SOLICITOR FOR THE WIFE: Perry Weston

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Hebblewhite

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Bowlen, Dunstan & Assoc.

Orders

1. That the children of the marriage J born in May, 1992, A born in June, 1994 and E born in June, 1995 live with the wife and she be responsible for their day to day care, welfare and development. 

1. That to give effect to paragraph (1) hereof, the husband deliver A to the wife’s mother’s home in B at 12:00 noon on 17 February, 2007 and A thereafter live with the wife.

1. That the wife be solely responsible for long term decisions about the children’s :

   (a)education;

   (b)health;

   (c)place of residence (PROVIDED THAT  it be situated so that contact changeovers can occur either at B or a place no further from Melbourne than B);

   and the parties otherwise share parental responsibility for major long term decisions.

1. That as soon as practicable the husband and wife do all things reasonably necessary to apply to use the supervision facilities at the Children’s Contact Centre in B (“C”).

1. That the husband spend time with A for two hours per fortnight at the Contact Centre on a day and time to be nominated by the Centre, to commence on the first weekend after advice from the Centre that it can facilitate that arrangement, and continue for a period of three calendar months.

1. That from the expiration of the period of supervised contact pursuant to paragraph (4) hereof, the husband have contact with A as follows :

   (a)during school terms, on each alternate weekend from 10:00 am. Saturday until 5:00 pm. Sunday, commencing on the first weekend after the expiration of supervised contact, and recommencing on the first weekend of each school term;

   (b)for one half of all school holiday periods at times to be agreed and, failing agreement, the first half in 2008 and each alternate year thereafter and the second half in 2007 and each alternate year thereafter, and in the absence of specific agreement :

   (i)the first half of a school holiday period shall commence at 12:00 noon on the first Saturday and conclude at 12:00 noon on the middle day;  and

   (ii)the second half of a school holiday period shall commence at 12:00 noon on the middle day and conclude at 12:00 noon on the last Sunday;

   (c)if A would not otherwise be with the husband on the weekend which includes Fathers’ Day, then, in addition to time pursuant to paragraph (6)(a) hereof, from 10:00 am. Saturday until 5:00 pm. Sunday on the weekend which includes Fathers’ Day;

   (d)at such other times as are agreed between the parties.

1. That notwithstanding the provisions of paragraph (6)(b) hereof :

   (a)in 2007 and each alternate year thereafter the husband spend time with A from 9:00 am. until 5:00 pm. on Christmas Eve;  and

   (b)in 2008 and each alternate year thereafter the wife spend time with A from 9:00 am. until 5:00 pm. on Christmas Eve.

1. That the wife do all things reasonably necessary to encourage and facilitate A telephoning the husband on Wednesday evenings, and E and J (to the extent possible) be at liberty to speak with the husband at that time.

1. That all questions of the time E and J are to spend with the husband and the communication they are to have with the husband be otherwise reserved.

1. That as soon as practicable the wife do all things necessary and sign all necessary documents to enable A to attend upon a psychologist, counsellor or like professional nominated by the independent children’s lawyer for the purpose of therapeutic counselling relating to his change of residence and his relationships with family members.

1. That as soon as practicable the wife do all things necessary and sign all necessary documents to enable E to attend upon a psychologist, counsellor or like professional nominated by the independent children’s lawyer for the purpose of therapeutic counselling relating to her relationship with her father.

1. That as soon as practicable the wife do all things necessary to herself attend upon a psychologist, counsellor or like professional nominated by the independent children’s lawyer for the purpose of therapeutic counselling relating to A’s change of residence and her parenting of the children.

1. That within fourteen days the husband make available for collection by the wife or her agent :

   (a)all of the wife’s clothing and personal items in his possession or control;  and

   (b)all of the children’s clothing and personal items (not including furniture) in his possession or control;

   and, in addition, but only if the husband agrees, the table and chairs referred to by him during oral evidence in the trial.

1. That the husband do all things reasonably necessary to attend a parenting after separation course (or like program) as recommended by the independent children’s lawyer and commence such program within the period he is spending supervised time with A at the Contact Centre at B, or, in the event that is not practicable, because no appropriate course commences in that period, as soon as practicable thereafter AND THE COURT notes the husband’s agreement to attend such a course. 

1. That until further order the husband be and is hereby restrained from attending at or within 300 metres of the wife’s home.

1. That changeovers take place outside the wife’s mother’s home in B or such other place as is agreed between the parties. 

1. That  IT IS REQUESTED that as soon as practicable the independent children’s lawyer speak to A and advise him of the nature and effect of the orders made this day.

1. That the independent children’s lawyer be discharged one month from this day or, in the event a Notice of Appeal is filed, on determination of the appeal.

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAF 3826  of 1998

Mr Heath

Husband

And

Mrs Heath

Wife

Independent children’s lawyer

REASONS FOR JUDGMENT

1. The wife was about 18 when she began to live with the husband in Sydney, in 1989.  He was then about 27.  The parties' first child, J, was born when the mother was 21 and by the time the parties married in 1995, they had another son, A.  Their third child, E, was born a couple of months after their marriage.  The court is asked to determine where the children should live and what time, if any, they should spend with the other parent.

1. The parties’ relationship was marked by many moves between New South Wales, Victoria and Queensland;  by numerous investigations by State protection authorities concerned about domestic violence and alleged abuse and neglect of the children;  by repeated separations and reconciliations of the parties, in the course of which the wife frequently went into refuge and made applications for domestic violence orders;  and by an apparent pattern of moves to avoid or sabotage sustained inspection of the family by welfare and community services put in place to support the wife and children during periods of separation.

1. Two reports by protective workers of the Department of Human Services are in evidence.  One is from W Region, which dealt with the most recent notification in respect of A;  the other is from M Region, which dealt with the most recent notification about the other two children.  I will not repeat all the evidence of prior notifications and investigations.  Suffice to say that between December 1999 and June 2005 DHS was involved on 16 separate occasions and at least once made a notification to a protective department in another State on ascertaining that the family had moved.  One DHS report notes that the family was also known to child protection services in New South Wales and Queensland, and there was evidence of at least three specific notifications in New South Wales. 

1. The notifications to DHS related to allegations of or concern about physical abuse, environmental neglect, sexual abuse, exposure to domestic violence and a failure to ensure the children's safety.  Not all were substantiated.  On occasions this resulted from a lack of evidence, on other occasions from a view that services and supports had been put in place to monitor the children's welfare.  The 17th notification was in relation to events which allegedly occurred in early May 2006, which gave rise to the parties' final separation. 

EVIDENCE

1. Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses.  In what follows, statements of fact constitute findings of fact. 

1. The wife is now 35.  After assessing her in October 2006 Dr K described her as having a mild intellectual disability resulting in dull normal intelligence, together with dependant personality features.  He said that she has an adjustment disorder with associated anxiety and depressive features, and appeared to have a problem with obesity.

1. In his opinion, as a mother she would need to be guided from time to time, a role assumed by the husband when they were together, and otherwise by her mother.  She has been emotionally dominated by her husband with whom she probably had a strong psychosexual attraction.  In his view, she was capable of providing a reasonable level of parental care. 

1. My observation of the wife in the witness box was consistent with Dr K's assessment.  In general, she understood questions and did her best to respond although she became confused at times and it was easy to see how she could be led to give a particular answer if a question were posed in a particular way.

1. The husband is 44.  In October 2006 Dr K diagnosed him as presenting with a personality disorder and some mild adjustment problems, mild anxiety and depression/grief.  Dr K was sceptical of the husband's denials of violence, and expressed the view that his personality deficits meant one could not have confidence in his version of events.  In his opinion, the husband totally lacked insight and he opined that the husband had been shrewd enough, by using denial plus dominance over his wife, to move to different locations and avoid any sustained inspection of the family.  Dr K did not see the husband's personality deficits as being open to treatment. 

1. I have no doubt the husband played the dominant role in the marriage.  While he may have endeavoured to answer questions honestly, his evidence was often vague and his memory poor, and he demonstrated no insight into the effects of the long standing family dysfunction on the children. 

1. The only other civilian witness called was the maternal grandmother.  The maternal grandmother was an impressive witness.  The husband made clear his perception, corroborated by what he told a number of workers, that the maternal grandmother was responsible for many of the problems between the husband and wife.  It is far more probable that the grandmother did her best to assist the family practically and, on occasions, financially, and to provide support to her daughter for whom she was very concerned.  I accept her evidence of the observation of the parties as a couple, the husband's behaviour in her presence and her discussions with the children.  Her assessment that the husband controlled and manipulated her daughter was consistent with Dr K's expert assessment. 

1. No counsel sought to examine Dr K and I place weight on his evidence.  Similarly, no counsel sought to examine either of the protective workers and I place weight on the two DHS reports.

1. Ms H prepared a family report, dated 23 November 2006.  She was cross‑examined.  No attack was made on her expertise.  I place weight on her evidence, which I found to be insightful and cogent. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

CHRONOLOGY

1. When the parties met, they were in Sydney.  Over the next 17 years they moved many, many times.  On numerous occasions they separated, and on numerous occasions they reconciled. 

1. In early May 2006, the wife went to B to spend some time with her mother.  Her evidence was she wanted to consult a psychic there, in whom she had confidence.  The children remained with their father in G.  On 5 May the wife spoke on the phone to E, who told her that her father had thrown a shoe at her, resulting in a bruise.  The wife's evidence was that this was, effectively, the last straw.  She resolved to end the marriage and travelled back to G with her mother, with the intention of doing so.  Her evidence in this respect was confused, and it is impossible to say whether it was E's advice about the thrown shoe, or things the child said the next day, which prompted the final separation. 

1. On 5 May the maternal grandmother drove her daughter back to G, where she stayed the night.  That evening the grandmother observed E sitting on the husband's lap.  She noted one of his hands was on E's ribs at chest level.  She said she felt uneasy or uncomfortable about that but could not explain why.  Soon after this observation, E jumped off her father's lap and came to her grandmother, whose lap she sat on until she went to sleep.

1. The wife's recollection of what occurred after that was confused and inconsistent and I place weight on grandmother’s evidence of the chronology.  On Saturday 6 May she drove the wife and children to B, the wife having resolved to leave the husband yet again.  She took the wife and children to a refuge there, probably in an attempt to minimise the potential for the husband discovering their whereabouts and pressuring her to return.  At the refuge, the grandmother asked E if her father had ever touched her where she did not like to be touched. 

1. E demonstrated by touching her chest area.  She said her father tickled her, indicating an area on her side near her hips, and towards the front of her body above the genital area.  The grandmother asked her to repeat this to the wife, as her mother was not paying attention, being engaged in conversation with a refuge worker.  E repeated it to her mother.  There was then a discussion about bruises after the worker pointed to a bruise, and E showed her another bruise which E said resulted from her father throwing things at her.  The grandmother’s evidence was that she thought she heard E say that “it” – him touching her chest area – had happened for some time, and E said that her father said he would do “it” harder when she grew up.

1. The following day, Sunday 7 May, the wife and children were at the maternal grandmother’s home in B when the husband arrived there.  I accept the wife's account that he wanted E and A to go with him.  E became very upset but A happily got into the car with his father.  The husband drove away with A.  At that point the wife and two other children returned to refuge.  The wife did not see A again until after orders were made on 18 August 2006.

1. The husband filed an application in the G Magistrates’ Court on 24 May.  On that day, an ex parte recovery order was made, based on his evidence, to deliver E and J to him.  Before it was executed, the wife filed an application in this Court on 6 June.  By that time, unbeknownst to the father, E had been interviewed by police at K.  She told them her father had "squeezed her boobs" and made other allegations.  This was recorded in a VATE interview on 15 May, but DHS was not then advised.

1. On 5 June an intervention order was made in the Magistrates’ Court, naming the wife, J and E as aggrieved family members. 

1. When the matter came before this Court on 8 June, the recovery order was discharged.  Interim orders provided for J and E to live with the wife and A to live with the husband.  Both parties were required to attend upon a psychiatrist for assessment.  The orders provided for the husband to have supervised contact with J and E at O for two hours a fortnight, and for the wife to have unsupervised contact with A at the end of those periods, for three hours, in the company of the other children.  There were also orders for phone contact. 

1. The orders for supervised contact were never put into effect.  DHS knew nothing of the most recent allegations until a s.91B notification from this Court was received by them on 3 July.  A protective worker, Ms Y, contacted K police on 12 July and discovered that the VATE tape had been sent to G Criminal Investigation Unit.  She viewed it on 17 July. 

1. In the VATE interview, E said that her father, "Feels my boobs, tickles me where I don't want to be tickled, teaches J bad habits, hits us, threw me across the floor" - then correcting it to - "wall, bruised me with a shoe and does mean stuff to me."

1. In relation to her father touching her breasts, E reported that he squeezes them hard, that she did not like it, that it occurred when her mother was not present.  She said that on one occasion he had said that, "When your boobs are bigger I'm going to squeeze them even more."  She was unclear about when this last occurred.  It would be consistent with one account she gave for it to have been Friday 5 May, as she said she told her nanna, and then her mum the next day.  However, she said the Friday it last occurred was a public holiday (this was after a query as to why she was not at school) and the nearest Friday public holiday would have been 14 April, being Good Friday. 

1. It must be said that E’s evidence about when it last occurred was not at all clear and she was unable to give any details whatsoever about any other occurrence.  I viewed the VATE tape.  E was quite relaxed and chirpy with Senior Constable … .  She rattled off an initial list of complaints and her demonstration of the position of her father's hands on her chest had nothing lascivious about it, and did not appear to involve squeezing.

1. Asked when it started E initially said she was "10”, then “I mean 9," but she could describe no other incident.  E said she had been too scared to tell anyone about it and that her father thought she liked it, but she did not.  She said he had tickled her where she "didn't want to be tickled."  She was not able to name the part of her body, but pointed to her hip bones, clearly on the side of her body just below waist level, when asked where it occurred.  She said she "didn't enjoy it, because he tickled really hard."

1. The case having been placed in the Magellan list, a DHS report from M Region was prepared by Ms Y on 2 August 2006, and a subsequent report from W Region was prepared by Ms B on 7 August 2006.  On 18 August I ordered that, until further order, J and E live with the wife and A live with the husband, and made orders providing for A to spend alternate weekends and school holiday time with his mother and siblings.  The time the husband was to spend with J and E was reserved. 

1. The DHS report of Ms B reports that A was interviewed at his school on 25 July.  By that time the wife had filed a form 4 notice of child abuse alleging not only inappropriate touching of E's breasts, but inappropriate touching of A’s penis.  DHS workers had been asked by police not to interview A until the criminal investigation into E’s disclosure was completed, so some time had elapsed by the time they spoke with him on 25 July.  At school that day, A said that he knew why workers were at school, which was to talk about how things were going at school and home. 

1. A alleged that his mother had picked him up by the neck once, and held a knife to his throat;  he said that he did not want to be near her, because "of all the things that she did to him."  Notwithstanding that, he asked when he would be able to see his mother and siblings, saying that he missed them.  He had been having regular phone contact with them.  A said nothing whatsoever about inappropriate sexual touching by his father and nothing critical of his father.  He was aware that his father wanted to reunify with his mother and siblings.  It was his view that his mother "has gotten better", and was then "okay". 

1. On 21 July Ms Y travelled to G to interview the husband about E's allegations.  Her report notes that he presented as having minimal insight into the seriousness of them and was extremely focused on reconciliation with the wife.  He acknowledged that he had not considered the possibility that reunification would not occur.  Even when it was discussed as a reality, the husband continued to focus on reconciliation and reunification of the family unit.

1. The husband denied he had sexually abused E.  He believed the wife had influenced E to make the allegation and he believed the wife to be schizophrenic.  He acknowledged that he had listened into phone conversations between E and A, saying that he did this to see "how they communicate", but could not explain what he meant in relation to that or what his concerns were.  He presented as preoccupied with wanting the protective workers to agree with his line of thinking in relation to the wife, and his belief that she was schizophrenic, and produced letters written by his friends which indicated that they, too, believed her to be schizophrenic.

1. Ms Y's recommendation then was that all three children live with the mother and that DHS remain involved for a voluntary period of intervention.  She noted that the wife's intellectual disability meant that she required ongoing and intensive support to assist in parenting the children independently of the father.  The DHS recommendation was that any contact between E, J and the husband be supervised, and DHS did not consider overnight access appropriate at the time. 

PRIMARY CONSIDERATIONS

1. Section 60CC(1) of the Family Law Act 1975 sets out two primary considerations, being the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

1. This dichotomy characterises the dilemma in this case.  In order to balance the two primary considerations, the Court needs to consider the evidence relating to the risk of physical or psychological harm.  I accept as sound Ms H's opinion that in this case, protective concerns must take precedence over all other matters.  The Court must also consider a number of additional considerations when determining what is in the child's best interest, and I will refer to them now.

ADDITIONAL CONSIDERATIONS

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. Prior to considering the evidence of the children's views it is convenient to describe each of them.  J is 14.  He has neurofibromatosis, a genetic condition he shares with his father.  The father's description was that it results in the development of tumours and spots on the skin, most of which are benign but need to be monitored and, if serious, removed.  It is probable that is a rather simplistic description of neurofibromatisis, which is a genetic disorder of the nervous system that primarily affects the development and growth of neural cell tissues and can manifest in a range of abnormalities, some of which are very significant.  However, no counsel suggested that the husband's condition or J’s condition was relevant to the husband's application for parenting orders, so I do not consider that further. 

1. J is intellectually disabled and has a cognitive age of four.  I saw him when he wandered into the court room on the first day of the trial, and can say that he is a solid but not tall boy, with an open face and quite a big head for his height, who spoke in sounds rather than words.  The evidence from those who care for him is that he can only utter one or two word sentences.  As it was unlikely that he would speak at all with strangers, he was not interviewed by DHS workers or Ms H.  J is a vulnerable child with special needs, which must be appreciated by those who look after him. 

1. A turns 13 in June 2007.  To Ms H he presented as an articulate outgoing young boy, who was able to engage in a discussion about his family situation.  In relation to his parent's separation, he said that “they did it all the time”, so he did not have any feelings about it.  He wanted his mother to come back to his dad, and said both he and his father hoped that would happen.  He spoke very positively about living with his father and was happy that he had started spending time with his mother and siblings, referring to activities that he enjoyed with each of them.

1. E is 11, a thin and wiry child.  On the VATE tape she looked a lot younger than her age.  She was only a week or so off 11 at that time, and if I had been asked to estimate her age, I might have said she looked about nine.  She told Ms H that her father used to squeeze her boobs, and that he had told her that he would keep doing this when she was older;  she said he would tap her friend on the bottom, and her friend did not like it.  She was very enthusiastic about A starting to spend time with her and her family;  she said she would like A to live with her, and that her mother "missed [A] heaps."

1. The husband agreed that A knows of and shares his desire for the family to be reunified, and that A knows of the allegation that he touched E in an inappropriate and sexual way.  A told Ms H that his father told him the purpose of the interview was to talk about which parent he wanted to live with.  In the interview, he was very negative about his mother, telling Ms H that he didn't feel safe with her, and describing bad things she had done to him and J, adding that his grandmother had slapped him.  He said that his father was “perfect” that there was nothing that he disliked about him, and that his father never hit him.

1. Ms H noted that the husband himself acknowledged to her that both parents had hit the children as punishment and cautioned against placing too much weight on A’s alleged views.  She noted that notwithstanding his critical statements about his mother, he wanted his mother to come home and live with his father, and believed they would reconcile. 

1. In the witness box the husband said that recently A had spoken of living with him as a first preference and, if that could not occur, of spending six months with him and six months with his mother.  Those views were also expressed by A to the independent children's lawyer.

1. I proceed on the basis that A has expressed a wish to live with his father and that he could be rebellious and unsettled were he ordered to live with his mother.  It is very likely that his wishes have been influenced by his father and by an agenda (which A may not genuinely understand) aimed at achieving a reconciliation of the family unit. 

1. With Ms H E was very keen for A to spend time with her and other members of the family, and wanted him to live with them.  She wanted to stay living with her mother.  She was very ambivalent about spending time with the father.  She wanted to keep in telephone contact with A, who was just as keen on maintaining his relationship with her. 

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

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

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

1. The evidence satisfies me that the mother's relationship with J and E is excellent, and the husband's own evidence was that he was satisfied it was best for J and E to stay living with their mother at this time.  Despite A's stated negativity about the wife, he played happily with E in her presence, asked his mother to play a game with him, and teased her about the potential for her to ring the husband.  Ms H observed a familiar and relaxed level of interaction and ongoing conversation between the wife, A and E, not consistent with J's alleged view of his mother. 

1. A also related well with his father when observed by Ms H, interacting enthusiastically, happily and affectionately.  She did not observe the husband with E or J, as no orders provided for E and J to spend time with him, the sexual abuse allegations had been substantiated by DHS, and E was very reluctant and confused about the issue of spending time with her father.

1. Ms H did not see J with the husband, but when J wandered into the court room during the trial, he went up to his father and then responded well to the father's quiet directions to him. 

1. To Ms H, E was clear that she would like a few adults present, if supervised visits were to occur.  She did not want her father to know her address.  She said that the phone calls with him were okay (there have been weekly phone calls for some months) but she was uncertain about whether she wanted to continue with them.  She was aware of her mother's distress and anxiety about the possibility of her mother having any contact with the husband.

1. The wife bought E and J to court during the trial, as she was unable to make arrangements for them to be cared for while she was in Melbourne.  It is common ground that E approached her father outside the court room, and spoke with him a number of times.  It was the first time she had seen him, as I understand the evidence, since May last year.  In a recent phone call she had asked him for money to buy a particular doll, and it seemed that much of her conversation with him at the court involved reiteration of that request or, possibly, demand.  She seemed comfortable with him despite - to use his word - hassling him for $50, ultimately successfully.  She spoke to him a number of times, but it must be noted that that was in an environment in which many adults were present, including her maternal grandmother.

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

(f)the capacity of :

(i)each of the child’s parents;  and

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

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

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. Both E and A’s schooling has been very disrupted as a result of the family's frequent moves and, unsurprisingly, neither are at an appropriate level with their core subjects.  E’s report is more positive, as she is recorded as being an avid reader and very enthusiastic about her then new school, which she attended for only 12 days in the last term in 2006.  There are some positive aspects to A’s report, too, he attending yet another primary school for a very short period at the end of 2006, before starting a new secondary school this year. 

1. At one point the husband agreed that the wife might be better at meeting the children's needs, but he insisted that he had been equally responsible for their care during the marriage.  The grandmother’s evidence satisfies me that the wife was more involved and responsible for J's needs when the parties were together, and that it was difficult to get the husband to focus on the children's needs, if it were inconvenient to him. 

1. The husband's evidence was that he helps A with his homework, that A was doing “okay” and his maths was good, which is not consistent with his most recent report.  However diplomatically expressed, it shows that A has problems with writing and reading at appropriate levels, and of the 25 categories under maths, he was described as being "usually able to perform” only three of them.  His attendance and punctuality were satisfactory, which is a credit to his father, but in both “home reading” and “homework completed” he was assessed at the lowest levels.  The husband may believe he has been engaging with A about his homework but it has either not been happening or it has not been bearing fruit.

1. The evidence is that, despite her intellectual disability, the wife has the capacity to parent the children well, and that she is open to accepting advice and support from community services.  I gained a strong sense that without a belief that she is not allowed to send E and J to spend time with their father, she could easily be swayed to do so, notwithstanding her wish to protect them from potential harm and her view that that would expose them to potential harm.  Nothing in her presentation suggested to me that she maliciously sought to exclude the husband from their lives.

1. I am concerned that, after A was taken by the husband to live with him on 7 May, he did not see his mother or siblings for over three months.  It is true that E and J then did not see the husband for some time either, but there were allegations which needed investigation.  The husband did agree that in an ideal world it would be best for the three children to live together, demonstrating some insight into the importance of A’s relationship with his siblings. 

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

(i)      either of his or her parents;  or

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

1. The husband agreed that A misses his brother and sister, that E wants to live with A, and that A would like to live with his mother as a family.  He agreed that A was having trouble dealing with being separated from his siblings, and that it would be best for the three children to live together, but saw that as being in a reunified family.  In his view, A has settled in well with him and wants to keep living with him. 

1. Ms H referred to the potential for A to express his opposition to a move to his mother's home by challenging behaviour.  It was her evidence that both the wife and A would need to access counselling to ensure the change of residence operated well, and she spoke of the importance of the husband not undermining any such order.  It is probable that A has acted in a disruptive and dishonest way on contact occasions recently.  The grandmother had the insight to say that A may blame her for his parents’ separation, speculating that he trashed her caravan to get back at her, and that he had been modelling destructive behaviour on observations of his father.  She was confident he would not display these problems if he were living permanently with the daughter and that he would be happy. 

1. Given Ms H’s evidence, the Court must act on the basis that there is a real possibility that A could be rebellious if ordered to move to live with his mother.  On the other hand, there is also a real possibility that he would so enjoy being reunited with his siblings, that he would reintegrate well into that home, particularly if he were able to see his father.

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

1. The grandmother has been playing a vital role in facilitating the wife's time with A, including travelling to Melbourne to collect him, and taking him back to B where contact has been occurring, in an attempt to maintain confidentiality of the wife's address.  On occasion, she has been unable to play that role.  The husband lives in S and she is in B.  She is 77, her long‑term prognosis is uncertain (she has had cancer for some years) and she has had recent spells in hospital.

1. The wife was very keen to keep her address from the husband.  It is probable that she understands her vulnerability to pressure to reconcile, and it is that which drives her desire to maintain the confidentiality of that address.  It is unlikely that E would reveal the location, and J does not have the capacity to do so.  However, if A moves to live with her, the Court would have to operate on the basis that he would tell his father where he lives, and it would be unrealistic to expect him to do anything else.

1. Although the husband denied any intention to visit, or relocation were he to ascertain the wife’s whereabouts, it was clear that his focus remains reconciliation and I am not confident that he would be able not to resume the pattern of behaviour which has manipulated her to reconcile in the past.  If that were to happen, the family could easily return to the peripatetic and dysfunctional life which they lived during their relationship, to the detriment of the children's wellbeing. 

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

1. I take into account J’s intellectual disability and his special needs.  I also take into account the fact that A is nearly 13, and that a good relationship with a father is very important for a boy of that age, so long as it is also conducive to the child's wellbeing and protects the child from violence. 

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

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

(i)the order is a final order;  or

(ii)the making of the order was contested by a person;

1. This is vital element of the case.  Not only is it clearly relevant to the second of the primary considerations, but it is also relevant to a number of additional considerations, and it is relevant to the application of the presumption of equal shared parental responsibility. 

1. The evidence supports a finding that the husband has low impulse control and poor parenting skills, and that these have exposed the children to a risk of physical abuse, a risk which has turned to reality on numerous occasions. 

1. The husband's evidence was that he had smacked the children on the hand or backside, and given them a “light tap” on the head.  He agreed that he had punched J with a closed fist in the stomach.  This was the subject of a DHS notification in 2002.  There was DHS evidence of a non-accidental bruise on J’s shoulder in that year, too.

1. In 2003 when bruising was observed on J's face, J mimed that he was punched, but would not say by who.  Given all the evidence, it is likely that the perpetrator was the husband.  The husband agreed that he had held A and E in headlocks during playtime, and kicked them during playtime.  E told Ms H about the headlock and the kicks, but gave no indication that she saw them as part of a game.  She was distressed when she described her father's behaviour, and her father's physical discipline of her.  The husband could not remember if he restrained the children when they were six or seven by sitting on them. 

1. The husband agreed that he had lost his temper on a few occasions.  When it was put that he lashed out and hit the children, he said, "I think we all do that from time to time."  When allegations were put to him from DHS reports, he often responded that he could not remember.  As noted earlier, no counsel sought to cross‑examine any of the protective workers.  The reports note that while denying certain allegations, the husband admitted putting A in the car boot, closing it and transporting him in the boot in 2003;  slapping the children across the face in 2001;  hitting the children over the side of the head in 2001;  and calling E, who was then five, a slut in 2001.

1. Amongst other allegations made by children to DHS workers since 1999 were the following :

   ·   J mimed a punch, but would not say who punched him when observed with a bruise on his face in 2003;

   ·   J mimed a punch and said, "Daddy did it," when investigating a notification that he was punched in the abdomen in 2002;

   ·   E and A said that their father had put their heads down the toilet and flushed it in 2001; 

   ·   E and A said that their father had sat on them and passed wind in their mouths in 2001. 

1. In the course of the investigations of the most recent allegations, E alleged that she was sexually abused, had “mean stuff” done to her, had been kicked on the leg, and that shoes were thrown at her and A.  She said the husband washed A’s mouth out with soap, pulled their hair and got “really angry” for no reason. 

1. A alleged to Ms H that his mother and grandmother were physically abusive to him.  I have earlier noted his allegation of his mother picking him up and holding a knife to his throat.  With Ms H he initially said he did not feel safe with his mother, but later said he did not feel unsafe during visits to her home, and was very positive about resuming contact there.  Ms H expressed concern about the influence of his father since separation, and the potential for the two of them to have a strategy of achieving a reconciliation.

1. It is certainly possible that the wife's behaviour was uncontained or aggressive on occasions, but I am satisfied that the evidence supports a finding that it was the husband who was the significant instigator of inappropriate physical discipline and family violence.  I make no finding that the grandmother has ever acted inappropriately in that way.  The husband's own evidence was that A and E fight, kick, punch and wrestle.  That evidence must relate to their conduct prior to separation, as he has not observed them together since.  It is probable the husband has been prone to aggressive outbursts, and that A’s account of the lack of any violence in the past is not a direct reflection of experience, but rather an aspect of an argument he sought to mount to Ms H.

1. That said, the Court could not find that A has been exposed to violence since returning to his father in June 2006.  It is possible that the husband has had fewer or no aggressive outbursts when living with one child only, and when not interacting with his wife, E and J.  I do not make any positive findings of violence directed at A in the period since June 2006. 

1. When allegations of violence and abuse were put to the husband, he conceded some, denied some and said that he could not remember many.  Asked about the allegation that he had squeezed E's breasts, he was adamant he had never done it.  His evidence was that he had tickled her on her ribs and around the body and that this must have been misinterpreted.  He denied saying that when she was older he would do it harder, and presented as distressed when cross‑examined about it.

1. I do not doubt that E spoke to her grandmother as the grandmother described on 6 May, or that she repeated these allegations in the VATE interview, to DHS workers and to Ms H.  Almost certainly, E now believes the conduct had a sexual connotation.  However, on the evidence, I am not satisfied that is more probable than not, and I do not find that the husband sexually abused E. 

1. There could be a number of explanations for E's statements.  First, the disclosure was made in response to a leading question from her grandmother.  I am not critical of the grandmother, who was legitimately concerned about her grandaughter, but it is probable that E initially demonstrated some touching or holding around the chest area, and only later characterised it as touching her breasts or her boobs.

1. It is also possible that once articulated, and repeated a number of times, a description of behaviour which was open to a number of interpretations became in her mind, and those of others, a description of behaviour which was only explicable as sexual. 

1. Second, it is important to look at the context.  The children have been exposed to inappropriate sexual material in the course of their parent's relationship.  The evidence supports a finding that they probably watched a pornographic video or videos, and they were certainly aware of sex toys, and how they were used.  The wife's evidence gave me no confidence whatsoever in her capacity to store what she called "her toys", securely.

1. Third, the children were routinely involved in very rough play between themselves and with their father, and exposed to inappropriate physical discipline.  They were also exposed to frequent outbursts in the home.  There were parental arguments, lost tempers, a good deal of yelling, screaming and physical violence between their parents.  For years they were part of a chaotic lifestyle of recriminations and reconciliations, pushing and shoving by their parents, sudden moves between homes and caravan parks and schools to avoid scrutiny.  All of this must have impacted on them.  Once these allegations were expressed in words, E was removed from interaction with her father, which may well have been a relief for her, given his physical discipline and other inappropriate behaviour, particularly given her then age.  It is ironic and, indeed, sad that it is likely that the period since May 2006 (when the sexual abuse allegation was made) is likely to have been the period of greatest stability in these children's lives ever, notwithstanding the fact one has lived with one parent and two with the other. 

1. Fourthly, E is a thin and wiry, flat chested little girl.  Some nine months after the allegations, she still has no breasts.  She may wear a bandeau style top as one layer of clothes on occasions, but she is not pubescent.  I accept that many girls at 10 or 11 may be shy about their bodies, well before they develop and mature.  They may even be shy because they have not developed and matured as swiftly as some of their friends.  But it is easy to see how rough tickling of E's body and ribs could have been described by her as tickling of her non-existent boobs.

1. Finally, the evidence is that E was apparently the target of inappropriate sexual behaviour by an intellectually disabled 17 year old neighbour in the past.  Both parents gave evidence of that.  The husband's evidence was of actually catching him touching her between the legs on two occasions.  The Court simply cannot say what other touching may have occurred. 

1. The husband was almost certainly insensitive to the issue of his daughter maturing, apparently wrestling and physically dealing with her as he did with A, which I am satisfied was in a very rough way.  But I am not satisfied that he ever touched her with any sexual intent. 

1. Similarly, I do not find that the husband ever inappropriately touched A's penis.  No complaint was ever made by A.  However aligned he may be with his father since the most recent separation, there were earlier occasions when DHS workers spoke with him and he told them about abusive behaviour by his father at home.  At no time did he say anything about any sexually inappropriate behaviour.  I do not find any sexualised contact in the husband's interaction with A, or that he is at risk of sexual abuse.  I do find that he is at risk of physical abuse, and that both of the other children must be seen to be at risk of physical abuse at the hands of their father, based on his prior conduct. 

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

1. The father remains focused on reconciliation and it is very likely that A is equally focused on that.  In one sense, that is out of the Court's hands.  It cannot police the lives of adults and cannot use children as tools to affect adult behaviour.  Its focus must be on the best interests of the children.  I have no hesitation in finding that the best interests of the children would be served by their parents not living together, as a return to cohabitation would inevitably mean a return to the husband's manipulation of the wife, domestic violence and a transient lifestyle.

PROPOSALS

1. I commend counsel for the husband and the wife for the clarity of their final submissions, which were models of brevity and cogence.  The husband proposed that A continue to live with him, and J and E live with the wife.  A would continue to spend time with the wife as he does now with changeovers in B.  E and J should spend such time with him as requested by them;  presumably the wife would make a judgment about J’s attendance.  If A moved to live with the wife, the husband proposed a period of supervised contact of three months, and then that he spend two out of each three consecutive weekends with A.  If E wanted to see the husband, he could spend time with her during the day in B on one of those three weekend periods, and J could also be with them. 

1. The wife proposed that the three children live with her and that the husband's contact with them be supervised.  Initially, she proposed supervision at the Contact Service in B.  Following discussion with counsel, inquiries were made of The Centre.  The court was advised - all parties agreed that this advice could be included in the evidence - that The Centre will not facilitate contact on an indefinite basis, but would do so as part of a staged process, perhaps for 6 to 12 months.  It will not facilitate contact if the Court has made a finding of sexual abuse.  To the knowledge of its workers, no service was available for families with an indefinite need for supervision.  In those circumstances the wife submitted that supervision was not viable.

1. I cannot say if The Contact Centre at B has the capacity to supervise contact involving a severely intellectually disabled 14 year old, but I do have doubts about the viability of time at a contact centre for children of E and A's ages for anything other than a reasonably short period. 

1. It was submitted by the wife’s counsel that to make orders designed to promote and provide for a meaningful relationship between the husband and children would expose them to harm at the hands of a parent whose personality defects are not amenable to remedy, and the only solution, notwithstanding the objects and principles of the legislation, was to end, or at least suspend, the children's relationship with their father.

1. The independent children's lawyer proposed that all three children live together, and live with their mother.  The independent children's lawyer was clear about that, and clear about the need for supervision (at least initially) of any contact the husband has with the children, expressing significant concern about the children's exposure to risk when with him.  However, counsel struggled to advance any specific, coherent proposals for their time with their father. 

1. Section 61DA(1) of the Act provides that when making parenting orders, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility.  The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child, or another child who, at the time, was a member of that family, or in family violence.  The orders initially proposed by the wife sought that the parties have equal, shared parental responsibility save for matters of education.  However, in final submissions, counsel for the wife and counsel for the independent children's lawyer submitted that the presumption did not apply.  Counsel for the husband submitted it should. 

1. I have found that the husband has physically abused all three children and has engaged in family violence.  In those circumstances, I find that the presumption does not apply.  However, it may be a case where residual aspects of parental responsibility can be left with both parents, after a number are specifically attributed to the wife. 

1. As the case transpired, the issue of J and E's residence is not in dispute.  They are to live with their mother.  The Court must then determine where A should live, what time he should spend with the parent with whom he does not live, and whether it should be supervised. 

1. I have no doubt that the father physically abused all three children, including A, and make that finding notwithstanding A's apparent denials to Ms H.  The husband’s behaviour is particularly concerning in relation to a child as vulnerable as J.  The lack of control inherent in that abuse, and his subsequent lack of insight into the inappropriateness of his behaviour, gives me no confidence that he is likely to contain himself when frustrated in the future.

1. The husband candidly admitted his own father's significant violence directed at him when he was a child.  I cannot say whether his conduct towards the children during the marriage was perceived as a form of discipline, a form of play, an outlet for his own aggression or frustration or a combination of all three.  But I am satisfied it was abusive.  The grandmother’s evidence of the husband stabbing her hand with a fork at B within the last three years is indicative of a man who cannot contain his anger.  Her evidence of observing him hitting J hard over the side of the head was compelling, and I accept her evidence of A telling her in the past that his father had hit him and that she had seen “too many bruises” on E.

1. I place weight on Ms H's evidence that E should not have to assume responsibility for her own safety, and that she does not have the capacity to make a decision about seeing her father on her own at the moment.  Ms H believed she would need to work that through, in therapeutic counselling sessions.  Her opinion was that phone contact is unrealistic without face-to-face contact, although it must be said that the evidence supports a finding that E has been reasonably happy with telephone contact with her father.

1. When the extent of the evidence about violence was put to Ms H she was adamant about the need to supervise contact, notwithstanding the children's ages and the inherent difficulties of achieving that. 

1. I am satisfied the evidence requires A to move to live with his mother and siblings, notwithstanding the fact that it is contrary to his expressed view, will require him to change schools again, will almost inevitably result in his mother's address becoming known to the husband (with consequent risks to the family stability) and may result in challenging behaviours.  It is likely A would be far more stressed by the change if he were denied all contact with his father.  It is more probable he will stabilise and settle if he knows he can see his father both in the short-term and longer term.

1. Although shorter than the time recommended by Ms H, I propose that A’s time with his father be supervised at the Contact Centre at B for the period proposed by the father, which is three months, being satisfied a longer period is unlikely to be productive with a then 13-year-old boy.  He will then spend time with A on each alternate weekend, as I am satisfied that to spend two out of each three weekends with his father, in the absence of E and J, would undermine the sibling relationships, the very strength and importance of which are important factors behind the residence order being made. 

1. As to the other children, I am not satisfied the Court should make orders for supervised or unsupervised contact now.  I do not doubt the husband loves J and E.  With both, he has been unable to contain his aggressive responses.  J is a very vulnerable child and will remain so.  E is presently a vulnerable child and ambivalent about her relationship with her father.  Perhaps when she has had some counselling, she may be comfortable about spending time with her father, and it is to be hoped that can occur.  Unfortunately, the Court cannot be an ongoing presence in the family's life.  It can request the independent children's lawyer to liaise with the Department of Human Services or other services nominated by DHS, and refer the wife to appropriate counselling for herself, E and A. 

1. In circumstances where the submission of the independent children's lawyer was that the wife, E and A will require ongoing counselling, it is in my view reasonable for the court to ask the independent children's lawyer to refer them to that counselling and I propose to do so.  Obviously, the independent children's lawyer may take advice from DHS. 

1. I do propose to order that the husband undertake a parenting after separation course;  orders will provide that, so far as practicable, he commence that during the period of supervised contact.  He has told me he his prepared to do that and I accept his evidence in that respect. 

1. There is an intervention order protecting the wife, which expires in March.  I cannot speculate on whether an application to extend it would be granted in a Magistrates’ Court, in the absence of evidence of continuing abuse or violence, or threats directed at the wife or children.  I can find that the existing order has been an effective deterrent and has assisted the wife to maintain her stated desire to avoid being pressured to reconcile.  As the husband has deposed to having no interest in finding her whereabouts or visiting without notice, a continuation of that order is unlikely to be prejudicial to him.  These reasons for judgment may be of interest to a magistrate if an application to extend is made.

1. I make is absolutely clear that if the wife seeks an extension of the intervention order beyond 2007, it will be a matter for the magistrate, on the evidence before him or her.  These orders are not inconsistent with the existing intervention order, as it provides an exclusion for orders of this Court. 

1. In all the circumstances, I am satisfied that this Court should use its injunctive power to protect children, to restrain the husband from attending at, or in the vicinity of, the wife's home.  That can run in conjunction with an intervention order, if that order is extended.  I make it to protect the children, pursuant to the injunctive power relating to children's welfare.

1. I will also order that the husband deliver certain personal items of the wife and children to her.  The order will not cover all items on the list.  It is not appropriate to hear a property case, by default.

1. In respect of changeovers, orders will require A be delivered to the grandmother's home in B at 12 noon on 17 February 2007.  I will request the independent children's lawyer to speak with A as soon as practicable, and advise him of the nature and effect of the orders.  Orders will provide for the parties to do everything necessary to use the facilities at the Contact Centre at B, and for there then to be three months of contact there.  They will probably only supervise two hours a fortnight in B, on days and times nominated.  The wife will be required to do all things necessary to enable A and E to attend (separately) psychological counselling as nominated by the independent children's lawyer, and she, too, will be required to attend for counselling as recommended by Ms H.

1. After three months, A will move to alternate weekends with his father from 10 am Saturday to 5 pm Sunday or such longer period as is agreed between the parties.  It may be that when he is older - he is really at an age he could start to travel himself - he might be able to extend that to a longer period.

1. I do propose to order that A spend half the holidays with his father.  I appreciate the other children will probably not be with him then but that is an important time for him and I have found he needs a continuing relationship with his father.  Orders will ensure he is with his father for the whole of the weekend of Fathers’ Day.

1. I do propose to make orders to continue phone contact on Wednesdays with A and E and, to the extent practicable, with J.  I am satisfied that has worked reasonably well.  It may provide an opening to resume contact between E and her father, in due course.

1. I do propose to order that the wife continue to accept advice and services recommended by the Department of Human Services. 

1. I order that the wife be solely responsible for long-term decisions about the children's education, health and place of residence, with some limitation on the last of those, to ensure A and his father can spend time together.  The parties will otherwise share parental responsibility for other major long‑term decisions, such as the names by which the children are known and whether passports are to issue for them.  The husband is not cut out of their lives.  But it is not practicable, or in their best interests, for the parties to have to consult and agree on matters of health and education. 

I certify that the preceding
113  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

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