HEMMINGWAY & HOLMES

[2012] FamCA 17

FAMILY COURT OF AUSTRALIA

HEMMINGWAY & HOLMES [2012] FamCA 17

FAMILY LAW - CHILD ABUSE – Magellan – allocation of parental responsibility – with whom children shall live - children have lived with mother since separation – children spent significant and substantial time with father – allegations of physical and sexual abuse of children by father – allegations of sexual abuse of children by mother’s partner and a friend of the mother’s partner – past family violence perpetrated by father against mother – children have had no contact with mother’s partner and his friend following allegations of sexual abuse - finding father does not pose an unacceptable risk of sexual abuse or physical harm to children – mother’s partner does not pose an unacceptable risk of sexual abuse – finding of past family violence – presumption of equal shared parental responsibility not applied – sole parental responsibility allocated to the mother 

FAMILY LAW - CHILDREN- with whom a child shall spend time – children enjoy meaningful relationships with both parents and members of paternal and maternal families – children enjoy good relationships with mother’s partner – parties unable to communicate effectively – parties unsuited to a shared parenting arrangement – high inter-parental conflict – orders for children to spend less time with father to protect them from harm – time with father reduced from four days and nights per fortnight to two days and nights per fortnight – father restrained from discussing the mother’s partner in the presence or hearing of the children

Family Law Act 1975 (Cth) ss 4, 11E, 60B, 60CA, 60CC, 60K, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65LA, 67Z
Family Law Rules 2004 (Cth) rr 2.04B, 2.04D

Eddington & Eddington (No.2) (2007) FLC 93-349
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Hemmingway

RESPONDENT: Mr Holmes

INDEPENDENT CHILDREN’S LAWYER: Mr Haricharan, Hunter Family Law Centre Pty Ltd

FILE NUMBER: NCC 669 of 2007

DATE DELIVERED: 27 January 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 5, 6, 7 & 8 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bateman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Haricharan, Hunter Family Law Centre Pty Ltd

Orders

1. All previous orders relating to O Holmes, born … February 2006, and S Holmes, born … December 2006, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   (a)During New South Wales public school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each term;

   (b)During New South Wales school holidays, except the Christmas school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year;

   (c)During the New South Wales Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year;

   (d)On each of the children’s birthdays between 4.00 pm and 7.00 pm.

5. Order 4 is suspended during the following periods:

   (a)From 12.00 noon on Christmas Eve until 12.00 noon on Boxing Day each year, during which period the child will spend time with the father from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day and with the mother from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years.

   (b)From 5.00 pm Saturday until 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the mother on Mother’s Day weekend and with the father on Father’s Day weekend.

6. For the purposes of implementation of Order 4, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.

7. For the purposes of implementing the time spent by the children with the father, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonalds Restaurant at Town 1, NSW, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the same place.

8. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

   (a)The father each Tuesday and Thursday when the children are living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.

   (b)The mother each Tuesday and Thursday when the children are spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

9. Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained from entering upon the grounds of any school attended by either child without the written consent of the mother.

10. The parties shall maintain a communication book to facilitate communication between the parties in respect of significant issues related to the children and each party shall relay important information concerning the children to the other by way of written notification in the communication book, which will travel with the children at change-overs.

11. Each party is restrained from permitting the children to refer to any person other than the biological parents by use of the terms “Mum” and “Dad”, or any derivative, respectively.

12. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

13. The father is restrained from discussing Mr N in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person discussing Mr N.

14. Each party shall notify the other of any medical emergency, illness or injury suffered by either child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

15. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

16. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

17. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.

18. The Independent Children’s Lawyer shall forthwith provide to the Director-General of the NSW Department of Family and Community Services copies of the following:

    (a)The affidavit of the Family Consultant affirmed on 8 August 2011, annexing a copy of the Family Report;

    (b)These orders; and

    (c)The reasons for judgment.

19. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or upon compliance with Orders 17 and 18, whichever is the latter.

21. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 669 of 2007

Ms Hemmingway

Applicant

And

Mr Holmes

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. In September 2007 the parties reached agreement about the parenting arrangements to be employed for their two young children. The agreement provided for the parties to assume equal shared parental responsibility for the children, who would live with the mother and spend substantial and significant time with the father. Those arrangements were implemented successfully until 2010 when each party reports that the children began making allegations concerning their sexual abuse.

2. The mother alleged the youngest child reported to her in July 2010 her sexual abuse by the father, following which the mother instituted these proceedings in October 2010. The father alleged the children reported to him their sexual abuse by the mother’s partner and his male friend from March 2010 onwards.

3. These proceedings therefore entail examination of the various allegations of abuse and determination of whether the consent orders made in September 2007 require any amendment, and if so, the nature of the amendment.

Short background

1. The parties began a relationship in September 2003 and separated on 3 March 2007.[1]

   [1] Mother’s affidavit, pars 6-7; Father’s affidavit, par 1.2

2. Two children were born to the parties’ relationship. The eldest child, O, was born in February 2006 and is now nearly six years of age. The youngest child, S, was born in December 2006 and is now five years of age.[2]

   [2] Mother’s affidavit, par 8; Father’s affidavit, par 1.3

3. Final parenting orders were made between the parties with their consent on 19 September 2007.[3] Those orders provided for the parties to have equal shared parental responsibility for the children (Order 2), the children to live with the mother (Order 1), and the children to spend substantial and significant time with the father (Orders 3-8). The time spent by the children with the father included four days per fortnight and block holiday periods.

   [3] Mother’s affidavit, pars 10, 66; Father’s affidavit, par 2.3

4. The orders were amended slightly in February 2008, again with the parties’ consent.[4] The amendment related only to the manner in which the children would be exchanged between the parties.

   [4] Mother’s affidavit, pars 10, 67

5. The orders were successfully implemented throughout 2008 and 2009.[5]

   [5] Mother’s affidavit, par 70

6. Contemporaneously with the occurrence of the disclosures of sexual abuse during mid 2010, the parties were unable to reach agreement about the children’s school enrolment. The mother therefore commenced these proceedings on 14 October 2010.[6]

   [6] Mother’s affidavit, par 97

7. The father joined in the proceedings by filing his Response and a Notice of Child Abuse or Family Violence on 3 November 2010,[7] which was the first return date of the mother’s Application.

   [7] Father’s affidavit, par 2.21

8. With the consent of the parties, an interim order was made on 3 November 2010 restraining the mother from permitting certain types of interaction between the children and her partner and his friend.[8]

   [8] Order 1.1 made on 3 November 2010; Family Report, par 39

9. Further interim orders were made on 10 November 2010 permitting the mother to enrol the children at the school and pre-school of her choice.[9]

   [9] Order 1 made on 10 November 2010; Father’s affidavit, par 2.22; Family Report, par 40

10. The litigation was transferred from the Federal Magistrates Court to this Court and on 29 April 2011 the matter was allocated into the Court’s Magellan protocol by reason of the unresolved allegations of the children’s sexual abuse. Another interim consent order was made restraining the mother from permitting the children to have any contact with her partner and his friend.[10]

    [10] Orders 1 and 8.1 made on 28 April 2011; Mother’s affidavit, par 115

11. Shortly before the trial, the father filed two Applications in a Case on 19 October and 23 November 2011, both of which were made returnable on the first day of trial. One sought adjournment of the trial and the other sought discharge and substitution of the Family Consultant on grounds of alleged bias. The Applications were both dismissed, for which ex tempore reasons were delivered.

12. The trial proceeded on Monday 5 December 2011 and concluded on Thursday 8 December 2011, at which time judgment was reserved.

Proposal and primary evidence of the mother

1. The mother began the trial pressing for the orders set out in her Amended Initiating Application filed on 5 September 2011, which made provision for:

   a)Discharge of previous parenting orders (Order 1);

   b)The children to live with the mother (Order 2);

   c)The mother to have sole parental responsibility for the children (Order 3);

   d)The children to spend time with the father, comprising alternate weekends and half of school holiday periods (Order 4-5);

   e)The children to be exchanged between the parties at their homes (Order 6); and

   f)Restraint of the father from discussing with the children the past allegations of sexual abuse (Order 10).

2. In support of her proposal the mother relied upon the affidavits of herself, her partner, and the maternal grandmother, all of which were filed on 11 November 2011.

3. By the conclusion of the trial the mother adopted the orders proposed by the Independent Children’s Lawyer, which were similar to those proposed by her.

Proposal and primary evidence of the father

1. The father abandoned the orders set out in his Amended Response filed on 23 September 2011, which made provision for:

   a)The parties to have equal shared parental responsibility for the children (Order 1);

   b)The children to live with the father (Order 2) and to spend time with the mother, which was in reality a proposal that the children live with the mother for equal time on weekly rotations (Orders 3-4);

   c)Exchanges of the children to be effected by collection from and delivery to the children’s schools (Orders 5-6); and

   d)Restraint of the mother from permitting her partner to have any direct or indirect contact with either child (Order 8).

2. Instead, the father pressed for the orders set out in his Case Information document filed on 30 November 2011.[11] His ultimate proposal was for “joint parental responsibility”, the children to live with him, and the children to spend supervised time with the mother each alternate weekend. He maintained his desire for an injunction precluding interaction between the children and the mother’s partner.

   [11] Exhibit F5

3. The filing of that document only days before the trial was the first notification of the father’s proposal for the restriction of supervision to be placed upon the time spent by the children with the mother. The father explained the sole reason for the new proposal was his belief the members of the maternal family were privy to the children’s disclosures of sexual abuse and they were “not listening and changing the subject”. He further explained he did not become aware of that fact until he read the affidavits of the maternal family members in November 2011.

4. In support of his proposal the father relied upon the affidavits of himself, his wife, and the paternal grandmother, all of which were filed on 11 November 2011.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer began the case with a preliminary view that the mother should have sole parental responsibility for the children and that they should live with the mother. The Independent Children’s Lawyer contended he was unable to formulate a view about the time the children should spend with the father, at least until the conclusion of the evidence.

2. At the commencement of final submissions the Independent Children’s Lawyer tendered a minute of the orders proposed by him,[12] which essentially made provision for:

   a)The children to live with the mother (Order 2);

   b)The mother to have sole parental responsibility for the children (Order 3);

   c)The children to spend time with the father each alternate weekend, for half of school holidays, and on special days (Order 4); and

   d)Restraint of the father from attending the children’s school and pre-school (Order 12.1).

   [12] Exhibit ICL2

3. The Independent Children’s Lawyer relied upon the evidence of the Family Consultant, contained within her Family Report, annexed to her affidavit affirmed on 8 August 2011.

4. The Family Consultant was cross-examined by the parties and the Independent Children’s Lawyer. I found her evidence reasoned, logical and persuasive and therefore generally accept it. I reject the father’s submission the Family Consultant was biased against him. She simply formed adverse views about him as an incident of the role she was obliged to perform in the proceedings as the appointed Family Consultant.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

1. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

2. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

3. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the children – primary considerations

Section 60CC(2)(a)

1. The children have lived with the mother since the parties separated. They each have a warm and loving relationship with her.[13]

   [13] Family Report, par 121

2. I also accept the children have warm and loving relationships with the father, it not being suggested to the contrary.

3. The children will clearly benefit from the maintenance of those meaningful relationships with the parties, provided they can be protected from physical and psychological harm to which they may be exposed in the context of those relationships. That was the pivotal issue in the litigation, to which I now turn.

Section 60CC(2)(b)

1. The parties made a series of allegations about the physical and emotional safety of the children within one another’s care, which need to be analysed carefully.

2. According to the Magellan Report furnished to the Court by the NSW Department of Family and Community Services (“the Department”), the children have been known to the Department since shortly after the parties’ separation in early 2007. Since then there have been 33 reports about the children to the Department’s helpline.[14]

   [14] Magellan Report, page 2; Family Report, par 52 (second)

3. It is trite to observe that such a high number of reports about the children is extremely worrying, but the concern is heightened by the belief of the father and his wife that the Magellan Report has still not captured all of the reports made about the children.[15]

   [15] Affidavit of father’s wife, par 2.27

4. The most disturbing reports concerning the children relate to their alleged sexual abuse. The first complaint of that ilk was received by the Department in May 2010. It was only the reports concerning the “risk of sexual harm/injury” that the Department deemed warranted secondary assessment.[16] Ultimately, the Department declined to take any remedial action in respect of any report, because the reports were considered unsubstantiated.[17]

   [16] Magellan Report, pages 1-2

   [17] Family Report, par 52 (second)

   Allegations implicating the father

5. The mother alleged the children were at risk of harm by being subjected to sexual abuse by the father and also by being exposed to the commission of family violence within the father’s home.

6. The mother alleged that on 2 July 2010 the youngest child reported to her “Daddy hurts me on the boobs”, which the mother in turn reported to the Department.[18]

   [18] Mother’s affidavit, par 92

7. Only weeks later on 23 July 2010 the mother alleged the youngest child reported to her “Daddy and [his wife] hurt my bottom and wee wee”, in response to which the mother made another report to the Department and took the child to the hospital for examination.[19] In cross-examination the mother said she could not recall if the child was physically examined at the hospital, but she certainly departed with the impression “they [hospital staff] could not see anything wrong”.

   [19] Mother’s affidavit, par 94

8. Some weeks afterwards on 4 August 2010 the mother alleged the youngest child pointed to her inner thighs and said “Daddy hurts me here”.[20] That disclosure was also reported by the mother to the Department.

   [20] Mother’s affidavit, par 95

9. In late August 2010 both children were examined by a doctor at the Sexual Assault Unit and found anatomically normal.[21] There is no explanation for why the eldest child was examined when only the youngest child had reported abuse to the mother.

   [21] Mother’s affidavit, par 96; Family Report, par 37

10. None of the reports made to the Department in July and August 2010 convinced the Department to proceed to secondary assessment of the allegations.[22] Nor is there evidence that any of the allegations of sexual abuse made against the father have been substantiated by any other authority.

    [22] Magellan Report, page 2

11. The mother conceded the youngest child has not made any disclosure of sexual abuse to her since her physical examination in August 2010, and the eldest child has never made any disclosure of sexual abuse to her.

12. In cross-examination the mother said she genuinely adheres to the belief that the father did sexually abuse the youngest child, but not the eldest child. She does not believe the youngest child would be safe in the father’s unsupervised care.

13. The mother accepted her asserted belief was inconsistent with the parenting proposals made by her in these proceedings. That is because she did not seek to place any restriction on the time spent by the children with the father when she commenced the proceedings in October 2010. Nor did she file any Notice of Child Abuse or Family Violence, as she was obliged to do if she pressed allegations of sexual abuse of the children by the father (ss 60K and 67Z; Family Law Rules 2004 (Cth) rr 2.04B and 2.04D). Even though the mother could appreciate the inconsistency of her position she was unable to rationalise it.

14. When the mother commenced the proceedings her proposal was that the parties retain equal shared parental responsibility for the children, who would continue to live with her and spend significant unsupervised time with the father.[23] The principal point of the litigation at that time seemed to be the mother’s proposal for orders requiring the children’s enrolment at a certain school and pre-school of her choice.[24]

    [23] Initiating Application filed 14 October 2010, Orders 1-9

    [24] Initiating Application filed 14 October 2010, Orders 11-12

15. Even now, the mother does not seek any substantial constriction of the time spent by the children with the father.[25] Her aim seems to be the allocation to her of sole parental responsibility for the children.[26]

    [25] Amended Application filed 5 September 2011, Order 4

    [26] Amended Application filed 5 September 2011, Order 3

16. I am not satisfied the father sexually abused either child. Nor am I satisfied the father poses any unacceptable risk of sexual abuse to either child.

17. I accept the children did actually make the disclosures of which the mother gave evidence, but those disclosures were made several months after similar disclosures were made by the children to the father implicating the mother’s partner in their sexual abuse. As will become clear from the discussion of those allegations below, since 2010 the children have been well aware of heightened interest in both households about revelations concerning their breasts and genitalia and their disclosures are inherently unreliable.

18. The mother also mentioned in cross-examination how scurrilous rumours about the father had come to her attention, which caused her concern. An acquaintance informed her that the father was a “rock spider”, a slang expression for a paedophile, and had sexually abused two of his young nieces. I do not doubt the mother was told such things, but I repose no weight in such rumours. The Court is required to act on evidence, not idle, spiteful gossip.

19. As for the issue of family violence, there is little evidence of its occurrence within the father’s home. The only basis of the mother’s apprehension is her own past experience with the father and statements made to her more recently by the children.

20. The mother alleged the father had been physically and sexually abusive to her during their relationship, which allegations were denied by the father. It is unnecessary to adjudicate that factual dispute. Even if the mother’s allegations were truthful and accurate, the parties last cohabited in March 2007 and such historical events hardly afford a reliable foundation for a conclusion the father is currently violent towards his wife and her children.

21. The mother alleged the children reported to her in February 2010 and May 2010 that the father had hit and kicked his wife and her children.[27] The father denied the allegations to the Family Consultant[28] and his wife deposed to her denial of any violent conduct committed by the father within their household,[29] to which denial she persuasively adhered in cross-examination.

    [27] Mother’s affidavits, pars 84, 87; Family Report, par 73

    [28] Family Report, par 102

    [29] Affidavit of father’s wife, par 2.23

22. Having regard to the young age of the children and the deep emotional turmoil from which they suffer as a consequence of exposure to the parties’ intense conflict, it would be dangerous to repose much weight in statements made by them. That issue is more aptly elaborated in discussion of the allegations made against the mother’s partner. I accept the Independent Children’s Lawyer’s submission that the children’s representations about family violence should not excite the Court’s concern.

23. I am not satisfied the children need protection from physical or psychological harm through subjection or exposure to family violence committed by the father.

    Allegations implicating the mother, her partner and his friend

24. There is evidence before the Court of allegations made in March 2009 and May 2010 that the mother neglected and physically abused the children by hitting them with a wooden spoon.[30] I ignore such evidence. The allegations were unsubstantiated by the Department[31] and the allegations were not pursued by the father in these proceedings.

    [30] Family Report, par 24, 31

    [31] Magellan Report, page 2

25. More importantly, the father alleged the children were at risk of harm by being subjected to sexual abuse by the mother’s partner and/or his friend Mr J. The father regarded the allegations as the principal issue in the proceedings, upon which his parenting proposal would rise or fall.

26. Mr J is no longer relevant to the proceedings. The mother and her partner have not seen him since February 2011.[32] The father conceded in cross-examination that Mr J is now “out of the picture”. Presumably that is why the father’s proposed injunction against the mother was restricted to only her partner and did not extend to Mr J.[33]

    [32] Mother’s affidavit, par 99

    [33] Amended Response filed 23 September 2011, Order 8; Exhibit F5, Order 4

27. The father alleged that in March 2010 the youngest child touched him on the breast. He pushed her hand away and demanded an explanation, for which the child explained it was a game of “twinky winkies”. She said “That’s what [Mr N’s first name] does”.[34] It is common ground that when the children refer to “[Mr N’s first name]” they were speaking of the mother’s partner. In response to that disclosure the father and his wife reported the incident to the Department.

    [34] Father’s affidavit, par 2.8; Affidavit of father’s wife, par 2.7

28. The paternal grandmother alleged the youngest child made a similar disclosure to her within a few weeks of the child’s disclosure to the father, which caused her to also report the matter to the Department.[35]

    [35] Affidavit of paternal grandmother, pars 2.13 and 2.14

29. Curiously, the Magellan Report does not reveal any report of harm being made to the Department in March or April 2010.[36] Even if the father, his wife or the paternal grandmother did make the reports, as they alleged, the evidence reveals that no action was taken in respect of the reports.

    [36] Magellan Report, page 2

30. On 3 May 2010 the eldest child was eating an ice-block. Her shirt had been removed to prevent it being stained by drips from the ice-block. The father alleged the child was rubbing the palm of her hand over her “breast area”. Despite some confusion in the evidence, either the father or his wife challenged her, asking “What on earth are you doing?” The child went quiet, immediately suspecting she was being admonished. The father’s wife tried to re-assure the child by telling her “It’s OK. You’re not in trouble. You know you don’t let anyone play or touch your boobs (sic)”.[37]

    [37] Father’s affidavit, par 2.10; Affidavit of father’s wife, par 2.8

31. Following the admonition, the following conversation ensued:[38]

    Eldest child: “[Mr N’s first name] and [M - a man’s first name] have [touched her boobies]”

    Father: “Who’s [M - a man’s first name]?”

    Eldest child: “[Mr N’s first name]’s friend”

    Father: “You don’t let anyone touch you on the boobs or on your wee wee”          

    [38] Father’s affidavit, par 2.10

32. It is common ground the children refer to their breasts as “boobies” and their genitals as “wee wee”.

33. That was not the first time the children had been issued such a warning. Some months earlier in March 2010 both girls had been instructed that “no one is allowed to touch/play with [your] private parts…and that if anyone does touch them then they need to tell [an adult]”.[39]

    [39] Father’s affidavit, par 2.10; Affidavit of father’s wife, par 2.7

34. It remains unclear why the children were warned about being touched on their genitals when the only reports made by the children to that stage related to them being touched on the breast. Perhaps the father and his wife were merely being vigilant. Irrespective, the children were on notice that disclosures in respect of their breasts or genitals were likely to evoke strong reactions from adults within their family circle. The father conceded in cross-examination he was very sensitive to the children’s conversation about their “wee wees” and he may at that time have suspected something more sinister than had actually occurred. He acknowledged the children would likely be aware of his sensitivity about the issue.

35. Although there is discrepancy as to whom, either the father or his wife reported the disclosure to both the Department and police.[40]

    [40] Father’s affidavit, par 2.10; Affidavit of father’s wife, par 2.8

36. The report recorded by the Department does not correlate precisely with the evidence given by the father and his wife. The Magellan Report discloses that the report in May 2010 related to both children, not just the eldest child. The allegation was [Mr N’s first name] and [M – a man’s first name] had touched both girls on the breast, watched them in the bath, and touched the eldest child on the genitals.[41] The discrepancy between the Department’s records and the evidence given by the father and his wife about the extent of the disclosure remains unexplained.

    [41] Magellan Report, page 3

37. As a consequence of the report the eldest child was interviewed by members of the NSW Joint Investigation Response Team (“JIRT”). The father alleged the interview occurred on 18 May 2010,[42] but the Magellan Report records it occurred on 20 May 2010,[43] as the mother said.[44] No action was taken by the authorities in respect of the report, apparently because JIRT officers were dissatisfied with the quality of the disclosure made by the eldest child to them. The reported risk of harm was not substantiated.[45]

    [42] Father’s affidavit, par 2.12

    [43] Magellan Report, page 3

    [44] Mother’s affidavit, par 88

    [45] Magellan Report, pages 2 and 3; Father’s affidavit, par 2.12

38. Although not mentioned by either the father or his wife in their evidence, a further report was made to the Department about the eldest child which led to the child being interviewed again by JIRT officers only a few weeks later on 9 June 2010. The reported allegation was that “[the eldest child’s] ‘wee wee’ was sore and that ‘[Mr N’s first name] had been touching it’”. During the interview the child was difficult to engage, contradicted herself, and could not provide contextual details. The allegations were not substantiated.[46]

    [46] Magellan Report, page 3; Mother’s affidavit, par 89

39. As the Family Consultant explained during her cross-examination, the ability of a child to provide contextual detail about an allegation of such abuse is important. Articulation of contextual detail tends to reveal recollection of an actual event, whereas failure to do so suggests mere recitation of an idea, fantasy or fabrication.

40. The father was spoken to by a JIRT officer at around that time. It is unclear from the exhibit as to whether the conversation followed the eldest child’s interview in May 2010 or June 2010. In any event, the father was informed the eldest child was “already picking up on the tension between him and her mother” which would “affect her into the future if not rectified”. He was advised not to “jump to conclusions” about the child’s disclosures. He was also informed that further interviews of the child could itself be abusive of her and he needed to “focus on better outcomes for the girls”.[47]

    [47] Exhibit M2

41. On 23 October 2010 the father alleged the youngest child volunteered to him “Dad, [Mr N’s first name] still touches my wee wee”, in response to which he replied “Make sure you tell your teacher”.[48]

    [48] Father’s affidavit, par 2.17

42. The father alleged that from June 2010 until December 2010 both children regularly reported to him and other family members that the mother’s partner continued to touch their genitals.[49]

    [49] Father’s affidavit, par 2.20

43. The father was corroborated by the paternal grandmother. She said in cross-examination that she saw the children regularly, she showered them often, and they disclosed to her being touched inappropriately by the mother’s partner “98 per cent of the time” she showered them.

44. Clearly, disclosures by the children of sexual impropriety by the mother’s partner were a regular occurrence within the paternal family. The paternal grandmother confirmed that on each occasion the issue was raised by the children she reminded them “No-one can touch your boobs or wee wee”. She also said she informed the children to say to the mother’s partner “tell him to get lost, he is not allowed to do that”. Consequently, the subject and its sensitivity were repeatedly reinforced in the children’s minds.

45. Although only mentioned obliquely by the father,[50] another report was made to the Department on 25 November 2010 of a disclosure by the youngest child about being touched on the genitals by the mother’s partner, and also of the mother being struck by the mother’s partner.

    [50] Father’s affidavit, par 2.19

46. The child was interviewed by JIRT the following day, 26 November 2010.[51] The DVD recording of the interview was tendered in evidence.[52] The Departmental summary of the interview was that the child repeated the allegation of being touched on the genitals but gave an inconsistent account about the contextual details and JIRT officers regarded the allegations as unsubstantiated.[53] The child was only three years of age at the time of the interview. She had no understanding of the distinction between the truth and a lie. For large parts of the interview, which lasted more than 30 minutes, the child was pre-occupied with toys and either ignored or did not appear to understand questions posed to her. She recanted from the allegation that the mother had been struck by the mother’s partner.

    [51] Mother’s affidavit, par 101

    [52] Exhibit F1

    [53] Magellan Report, page 3

47. JIRT officers spoke with the father on 3 December 2010, at which time he was informed that children can tell “different things” to different people and the disclosures of the youngest child were “not enough for JIRT to be concerned enough to take further action (sic)”.[54]

    [54] Exhibit M6

48. On 11 March 2011, JIRT confirmed in writing that none of the allegations against the mother’s partner had been substantiated, investigations were complete, the matter was finalised, and JIRT no longer recommended that the children be deprived of interaction with the mother’s partner.[55] That letter was drawn to the father’s attention at or about that time,[56] but he surprisingly said in cross-examination he thought it may have been a forgery. However, he also confirmed in cross-examination he had been informed by the Department in early April 2011 that the investigation of the prior allegations was closed.

    [55] Father’s affidavit, Annexure H; Mother’s affidavit, par 105; Family Report, par 43

    [56] Father’s affidavit, par 2.29

1. Only a month later, on 18 April 2011, when the father and his wife collected the children from the mother, both children disclosed that the mother’s partner had touched them on the genitals.[57] Although the father’s wife deposed to the incident occurring on 18 May, the father confirmed in cross-examination his wife was in error and 18 April was the correct date.

   [57] Father’s affidavit, par 2.31; Affidavit of the father’s wife, par 2.15

2. The eldest child said to them “[Mr N’s first name] touch my wee wee (sic)”. She reported it had happened “when we were away”. The children had been away on holidays with the mother and had only returned home within the preceding few days.

3. The youngest child said to them during the same conversation “He touched my wee wee yesterday. He made me hop on the bathroom floor and made me into a starfish and he played with my wee wee”.

4. The father drove the children directly to the Department’s office to report the disclosures.[58] He also later reported the matter via the Department’s helpline.[59]

   [58] Father’s affidavit, par 2.31

   [59] Father’s affidavit, par 2.33; Magellan Report, pages 3-4

5. The father took the children to a doctor later in the day,[60] but the appointment had already been made by the mother for the eldest child, whose genital area was red and sore. Following examination, the doctor confirmed the eldest child had some excoriation on the vulva, which was common and not indicative of abuse. The youngest child had no physical symptom of interest. Neither child made any disclosure of abuse to the doctor.[61]

   [60] Father’s affidavit, par 2.32

   [61] Exhibit M4

6. At or about that time the children made a disclosure to the paternal grandmother in similar terms to the disclosure they made to the father.[62]

   [62] Affidavit of maternal grandmother, par 2.20

7. Arrangements were made for both children to be interviewed by JIRT on 20 April 2011.[63] DVD recordings of both interviews were tendered in evidence,[64] but the Magellan Report accurately summarises the content of the interviews.[65] Neither child gave a plausible account of their alleged abuse.

   [63] Father’s affidavit, par 2.36; Mother’s affidavit, par 113

   [64] Exhibits F2 and F3

   [65] Magellan Report, page 4

8. The youngest child was aware she had been taken to JIRT to specifically talk about the mother’s partner touching her genitals, so it was unsurprising she would make a disclosure of that sort in the interview. She could not give any useful contextual details about the allegation above and beyond what she had reported to the father. Significantly, the child’s version of the event was also inconsistently recounted. She said variously that she was in the bath, on the floor, and swinging on a rope when she was touched. She also said she had her clothes on, firstly dressed in a top, skirt, and no “undies”, but then later with “black pants” that had been pulled down.

9. The youngest child’s demeanour during the interview was quite inconsistent with concern or distress about the incident. On the contrary, she was apparently happy and her answers digressed with stories about her sister and “big school”, playing with the toys, swinging on a rope, her sister’s favourite colour, the mother being taken away in an ambulance, and her cat giving her a kiss.

10. The eldest child was still aged only five years at the time of her interview. She remembered she had been to the JIRT office before. She acknowledged her vulva was red and itchy. She initially denied she had been touched on that part of her body. When she was later asked leading questions about being touched on her “wee wee” she said “[Mr N’s first name]” had done so, but clearly wanted to then disengage from the conversation. When pressed, she said it had occurred “last year”, rather than while she had been away on holidays in the preceding weeks, as she had told the father. She said she had been sleeping in her bed, dressed in her skirt, top and “undies” and [the father’s first name] was sleeping on her bed with her.

11. Of course, it is possible the child was reluctant to discuss the incident because it had actually occurred and the recollection of it distressed her. But it is equally possible she did not wish to discuss the topic because she was aware the allegation was untrue and she felt embarrassed or guilty perpetuating the lie to independent persons whom she knew to be in a position of authority.

12. At the conclusion of the children’s interviews on 20 April 2011 the JIRT officers spoke with the father. He was told the allegations were not substantiated, the investigation was suspended, and JIRT would not be launching a criminal prosecution of the mother’s partner. He was also told JIRT had no concerns about the children returning to the mother’s care. He was again told that multiple interviews of the children were “becoming abusive to their welfare”.[66] That independent version of the conversation, drawn from contemporaneous notes of JIRT officers, is considerably different from the version of the same conversation given by the father in his affidavit, to the effect that JIRT was actively considering prosecution of the mother’s partner.[67] The father could not explain why the complexion of the conversation was so different in his affidavit. The content of his affidavit was misleading, even if inadvertently so.

    [66] Exhibit M3

    [67] Father’s affidavit, par 2.36

13. The paternal grandmother and the father’s wife also both conceded their knowledge that JIRT regards the allegations of sexual abuse against the mother’s partner as unsubstantiated and that no further action will be taken.

14. Even in the face of that knowledge, only a month later on 30 May 2011, the father’s wife saw fit to make another report to the Department about an event which could only properly be regarded as benign. The mother had merely applied cream to the eldest child’s excoriated vulva, but the father’s wife repeated her admonition to the eldest child that “no one is allowed to touch your wee wee or boobs” and notified the Department of the incident.[68] Why such an ordinary incident would prompt such a histrionic reaction from the father’s wife is difficult to understand. The level of distrust between the parties and their respective confidantes has seemingly degenerated to an irretrievably low level.

    [68] Affidavit of father’s wife, par 2.16

15. As was the case with the mother, I am satisfied the father, his wife and the paternal grandmother honestly reported their recollection of the statements made to them by the children at various times. The children made similar disclosures to JIRT officers and the Family Consultant,[69] so it is probable they made disclosures of the kind alleged by both the parties and their witnesses.

    [69] Family Report, par 110

16. The nature of the statements made by the children at various times was undoubtedly troubling to the parties, but the mere making of such statements is not proof of their truth.

17. Proof of the children’s sexual abuse hinges entirely upon the accuracy of their disclosures. There is no corroborative evidence of the disclosures. That of itself does not mean the allegations are false. Rather, it means the disclosures need to be keenly scrutinised and tested objectively.

18. The father said to the Family Consultant,[70] in his oral evidence, and in final submissions that he honestly believes in the truth of the statements made to him by the children. His belief prevails despite the doubt expressed about the children’s reliability by JIRT officers and the Family Consultant. He is not re-assured by JIRT’s decision to find the allegations unsubstantiated, which decision he finds mystifying. He said in cross-examination that nothing could re-assure him about the safety of the children around the mother’s partner.

    [70] Family Report, par 94

19. Regrettably, the father’s superficial analysis of the evidence is simply thus: because the children said it, it must be true. Equally, it should be observed that the mother’s belief in the allegations made by the youngest child against the father suffers from the same vice.

20. Such a simplistic approach cannot withstand the harsh glare of logic. The unreliability of the children is demonstrated objectively in several ways.

21. The father and his wife both admitted the children do not always tell the truth. The father told JIRT officers that at least the eldest child told “a lot of porkies”, by which he meant lies.[71] If the child is known to tell lies then her statements must be regarded with considerable caution.

    [71] Exhibit M6

22. The father also conceded he could not account for how the youngest child’s allegations to the mother about his sexual assault of her were false, but that the children’s allegations of their sexual assault by the mother’s partner were true. He was impelled to admit the paradox. If one accepts, as I do, the father’s denial of his sexual abuse of the youngest child then it necessarily follows the youngest child’s reports to the mother of her sexual abuse at the hands of the father were false. If the youngest child’s allegations about the father were false then there is no logical reason why her allegations against the mother’s partner could not be false.

23. Although the paradox was not put to the mother in cross-examination, she is in the same bind, albeit in reverse.

24. The youngest child was also observed by the Family Consultant to lie to the father and paternal grandmother in the observation session. The youngest child had been scratched by a family cat but, when asked about the cause of the scratch, asserted it had been caused by playing with a flower.[72] The Family Consultant considered that to be a ripe example of the children telling the father a lie to appease him, given that they each appear to regard him as “cranky” or taciturn.[73]

    [72] Family Report, par 122

    [73] Family Report, pars 109, 115

25. The adverse statements made by the children about the mother’s partner are also irreconcilable with their adoration of him. The youngest child told the Family Consultant she “loves [Mr N’s first name]” and both children were observed by the Family Consultant to be happy and relaxed in his company.[74] One could hardly expect them to rationally react towards the mother’s partner in that way if they were genuinely apprehensive of his sexual abuse of them.

    [74] Family Report, pars 115, 123

26. The inconvenient truth for the parties is that the children’s statements are unreliable. Their conduct is a much more reliable indicator of their feelings.

27. There could be a number of rational explanations for the children making unreliable statements. Their young age and whimsical imagination is probably a contributing factor, but it is likely the children are so anxious about the acute conflict between the parties that they are prepared to make statements they expect will resonate with the parties. That is probably especially true within the paternal family because of the constant discussion and reinforcement about the privacy of “boobies” and “wee wees”. The point is exemplified by the following exchange between the Family Consultant and the mother’s counsel in cross-examination:

    Counsel: Is it conceivable that the girls may to some extent seek to please their parents by telling them things that they think they want to hear?

    Family Consultant: Absolutely.

Counsel:And is it the case that if an idea arises, from wherever it arises, and gets a reaction, it is possible that that might be interpreted as something that that parent wants to hear?

Family Consultant: That might reinforce that, yes.

Counsel:If the evidence is that [the father] accepts or believes unquestionably whatever the girls tell him, particularly whatever [the youngest child] tells him, would that give you cause for concern about the veracity, or otherwise, of the ideas that they are expressing?

Family Consultant: Yes.

Counsel:Indeed, if in each case the girls said quite openly that they didn’t understand what the truth was or they didn’t understand what a lie was, would that give you concern about the veracity or otherwise of the ideas they express?

Family Consultant: Yes.

Counsel:If the evidence discloses that the father was able to describe when asked…sorry, I withdraw that.  If there is evidence that the father was asked about whether the girls ever said anything to please him and there is evidence that the girls said repeatedly over and over, “I love you daddy”, “I love you daddy”, “I love you daddy”, is that consistent with a desire to placate or mollify the father?

Family Consultant: It could be, yes.

Counsel:Does that possibly suggest or is it consistent with the proposition that the girls may be attempting to respond to pressure to say something in particular?  Is it consistent with that proposition?

Family Consultant: It is consistent with that.

1. However, there is other salient evidence to consider apart from the unreliability of the statements made by the children.

2. The mother’s partner deposed to his denial of the allegations that he sexually abused either child[75] and credibly asserted he was deeply offended by the allegations. He said if he had touched either child on the chest it would only have occurred accidentally whilst picking them up under the arms. He denied he had handled either child on or near their genitals, although he had occasionally dressed them both.

   [75] Affidavit of mother’s partner, pars 5-6

3. The mother’s partner voluntarily submitted to numerous interviews with JIRT officers,[76] most recently in April 2011. He was not obliged to do so. As a person of interest in the investigation he was entitled to exercise his right against self-incrimination and maintain his silence. His willing participation in the interviews tends to demonstrate he had nothing to hide. He said in cross-examination he was told by JIRT officers following his last interview that the investigation was complete and no further action would be taken. It appears he will not be prosecuted.

   [76] Affidavit of mother’s partner, par 11

4. The maternal grandmother also deposed that the youngest child said to her and the maternal grandfather in the car “Daddy said we lied but we didn’t. [Mr N’s first name] didn’t hurt us”.[77] The significance of that statement is obvious. The youngest child was alive to the father’s displeasure that she and her sister had not convinced JIRT of the truth of the allegations against the mother’s partner and she wished to re-assure the maternal family the allegations were false. Although the maternal grandmother could not be precise about the timing of that revelation, in cross-examination she said the incident occurred in about late March or early April 2011.

   [77] Affidavit of maternal grandmother, par 32

5. I am not satisfied the mother’s partner sexually abused either child. Nor am I satisfied the mother’s partner poses an unacceptable risk of sexual abuse to either child. Consequently, I reject the father’s proposal for the imposition of an injunction restraining the mother from permitting the children to have any interaction with her partner.

Best interests of the children – additional considerations

1. Independent authorities have formed the impression that the father’s allegations against the mother and her partner are not always bona fide.

2. The police concluded in January 2010 that the father appeared to be “concerned with inciting trouble”.[78] In May 2011 the police believed that the father and his wife were untruthful and were “using the children to make false allegations in an attempt to control [the mother’s] life”.[79]

   [78] Family Report, par 26

   [79] Family Report, par 55

3. The staff members at the eldest child’s school have also become unwillingly embroiled in the controversy. They consider that the father’s behaviour directly contributes to the emotional distress of the eldest child and they desire that he refrain from involving them in the conflict.[80]

   [80] Family Report, pars 50, 124-128

4. The Department concluded that “no matter who the male is in [the mother’s] life there will be concerns raised and debated by [the father] as to that person’s role in his daughter’s lives”.[81] The Department also regarded the father’s behaviour as manipulative by “going public” and “provid[ing] false information”.[82]

   [81] Family Report, par 53 (second)

   [82] Family Report, par 54

5. The Family Consultant endorsed the opinion expressed in the Department’s records, concluding the father would not likely desist from making further complaints about the mother’s partners. That was clear from both the contents of the Family Report[83] and her evidence in cross-examination. She considered the father’s allegations against the mother’s partner were “malicious and false” and part of a campaign to destroy his reputation.[84]

   [83] Family Report, par 61

   [84] Family Report, pars 131-132

6. Such opinions, if true, reflect poorly on the father’s attitude and parenting capacity. However, there is no need to either embrace or reject such opinions. Irrespective of whether the father has acted malevolently or honestly, the effect of his conduct on the children has been the same. The mother’s conduct has, to a lesser extent, also caused distress for the children, but I accept she has not acted vindictively.

7. The children have been formally interviewed numerous times and subjected to intimate physical examinations to establish whether their hymens are intact. They have also been photographed during that procedure.[85] Their privacy has been invaded and their dignity corrupted. The Department and the Family Consultant both consider the experiences they have endured over the last two years have been emotionally abusive to them. I accept that opinion as valid.

   [85] Family Report, pars 37, 131

8. There can be no doubt about the depth of the children’s emotional despair, which the Family Consultant attributes to their exposure to the conflict between the important adults in their lives. Her opinion is corroborated by staff at the eldest child’s school, who noted a pattern of increased emotional disturbance during times of high parental conflict, for which they tend to blame the father.[86]

   [86] Family Report, pars 65, 127

9. The mother reported to a former counsellor in early 2010 that the children were anxious and distressed. The children were distant, crying and bedwetting.[87] Most worryingly, despite being toilet trained, the eldest child regressed and began defaecating in her pants. The children were also physically violent towards one another. The onset of that behaviour roughly correlated with the time at which sexual abuse allegations began being made against both the father and the mother’s partner.[88]

   [87] Family Report, par 27

   [88] Mother’s affidavit, par 93; Family Report, pars 33, 68

10. The oldest child’s defaecation occurred both at home and at school, and was occurring up to three times each day. She was also avoidant and withdrawn.[89] That behaviour has only begun to improve in recent months,[90] apparently by reason of her receipt of counselling.[91]

    [89] Mother’s affidavit, par 119; Exhibit F4; Family Report, par 44

    [90] Mother’s affidavit, par 120

    [91] Mother’s affidavit, pars 125-126; Family Report, par 46

11. The youngest child has a different personality to the eldest child. She manifests anxiety by being excitable and garrulous. She exhibited that type of behaviour in her JIRT interviews, which were viewed in Court.

12. The parties both acknowledged the children’s emotional disturbance. Each reported to the Family Consultant that the children’s behaviour had deteriorated, noting changes in their sleep patterns and emotional resilience.[92]

    [92] Family Report, par 65

13. The mother said in cross-examination the children are now both coping better with the strategies they have learned at counselling.

14. The children have displayed a marked reluctance to move between the parties, notwithstanding that they have loving relationships with both parties. That behaviour has been displayed in both households.[93] The only rational explanation for the children’s anxiety at times of changeover is their desire not to be involved in the intense conflict that has developed between the maternal and paternal families, which is most likely to occur at changeovers.

    [93] Affidavit of maternal grandmother, par 35; Father’s affidavit, par 2.46;

1. The mother at least has the capacity for introspection. Although she said she believes the father sexually abused the youngest child, she conceded the possibility her belief was baseless and acknowledged it would be harmful to both the children and the father if she maintained a false belief about the youngest child’s sexual abuse. Unfortunately, the father does not even countenance the possibility his belief in the sexual abuse of both children by the mother’s partner is misguided. His views seem immovably fixed.

2. The children enjoy good relationships with the maternal grandparents and the mother’s partner.[94] Although the eldest child made a harshly critical comment about the mother’s partner’s sexual abuse,[95] the Family Consultant did not believe the child was being truthful when she made that statement. The Family Consultant concluded from her demeanour and monotone delivery that the statement was rehearsed and disingenuous. The Family Consultant’s opinion appeared vindicated when the eldest child was introduced to the mother’s partner. Her effusive delight was wholly inconsistent with her earlier statement about him being a “bad person”.[96]

   [94] Family Report, pars 115, 121, 123

   [95] Family Report, par 110

   [96] Family Report, par 123

3. The children also appear to enjoy good relationships with members of the paternal family.[97] The mother is willing and able to promote the children’s relationships with the father and other members of the paternal family,[98] despite suspicion on their part about her motives.[99]

   [97] Family Report, par 122

   [98] Family Report, par 79

   [99] Affidavit of paternal grandmother, pars 2.23, 2.25

4. There is no current family violence order in existence. An interim family violence order was made against the father for the protection of the mother at the time of separation in March 2007, which became final in October 2007, but that order expired in April 2009.[100]

   [100] Mother’s affidavit, pars 58-62

5. The parties agreed the father is paying no child support, consistently with the current child support assessment, and there are no child support arrears. I therefore draw no adverse inference against the father pursuant to s 60CC(4)(c) of the Act, although it is uncontroversial the mother has borne the principal financial burden of raising the children.

6. Although scant mention was made of the factors prescribed by s 60CC(3) of the Act, other than as discussed, none were submitted to be influential in the outcome of the proceedings.

Parenting orders

Parental Responsibility

1. The father admitted he had been convicted of assaulting the mother in the past. Even though that conviction related to an incident which occurred at or about the time of their separation some years ago, it is still evidence of the occurrence of family violence. As earlier indicated, other than to acknowledge family violence occurred, there is no need to investigate the controversial evidence about it.

2. There is no evidence of frank violent conduct committed by the father since the parties’ separation. I reject the submissions of the mother and Independent Children’s Lawyer that the father has committed “family violence”, as defined in the Act (s 4), since the parties’ separation in March 2007. Belligerence, arrogance and anger do not of themselves constitute family violence.

3. In any event, the finding of past family violence means the presumption of equal shared parental responsibility does not apply (s 61DA(2)). But equal shared parental responsibility may still be allocated to the parties if the best interests of the children warrant such an outcome.

4. Notably, when the parties reached agreement in September 2007 about final parenting orders, they did so in the knowledge of past family violence. Notwithstanding the past occurrence of family violence, the parties agreed they should have equal shared parental responsibility for the children. The Court approved the orders to which they each consented. It therefore follows that the parties and the Court must have then considered it was in the best interests of the children for the parties to have equal shared parental responsibility. But the decision made then does not bind the Court’s decision now if the evidence dictates a different outcome.

5. There has been a material change in circumstances since September 2007. The cooperative relationship between the parties is now all but destroyed. They are simply unable to communicate constructively. Most importantly, neither party could envisage any improvement, even though they each understood how the children were deleteriously affected by their conflict. The father said he believed the level of distrust between the parties was now too deeply entrenched for the situation to be recovered. His wife held much the same opinion. The Independent Children’s Lawyer submitted, and I accept, that the parties’ inability to communicate constructively seems an insoluble problem.

6. The father, his wife and the paternal grandmother all deposed that whenever the father tries to talk to the mother she “attacks [him] verbally”.[101] The mother conversely asserted the father refuses to talk to her.[102] The father desired that all communication between them be in writing.[103]

   [101] Father’s affidavit, par 2.49; Affidavit of paternal grandmother, par 2.21;

   [102] Mother’s affidavit, pars 121-122

   [103] Mother’s affidavit, pars 74-75

7. The parties have seldom agreed on important educational and medical issues affecting the children’s lives.[104] The parties have also disagreed about the holiday arrangements for the children under the existing parenting orders.[105] The father believes the mother tries to “shut him out”[106] and the mother no longer feels able to share parental responsibility for the children with the father.[107]

   [104] Family Report, par 64

   [105] Family Report, par 76

   [106] Family Report, par 99

   [107] Family Report, par 74

8. The Family Consultant opined that the nature of the parties’ relationship was unsuited to a shared parenting arrangement, requiring parental responsibility to be allocated to the parent with whom the children are designated to live.[108] I agree with that conclusion, which accords with the submissions of the mother and Independent Children’s Lawyer.

   [108] Family Report, par 66

9. For reasons about to be explained, the children must live with the mother and so sole parental responsibility for the children must be allocated to her. It would of course be absurd to allocate sole parental responsibility to the party with whom the children do not live.

Living Arrangements

1. Since the parties have not been allocated equal shared parental responsibility for the children, the Court is at large in respect of the orders governing the children’s living arrangements, which orders will be informed by their best interests. The Court is not obliged to consider regimes under which the children live for equal time with both parents or spend substantial and significant time with the non-residential parent, although either such outcome could still possibly result.

2. The children have lived with the mother continuously since the parties separated in March 2007. The parties considered the children’s best interests warranted them living with the mother when they agreed upon final parenting orders in September 2007.

3. The mother has proven her capacity to provide for the physical and intellectual needs of the children. Save for the reservations already expressed about the impaired capacity of both parties to provide for the children’s emotional needs, the mother has also catered to the children’s day to day emotional needs.

4. The father told the Family Consultant the current parenting arrangement was working well.[109] During the trial he contended the only reason for alteration of the existing orders, under which the children live with the mother, is the unacceptable risk of sexual abuse posed to the children by the mother’s partner, which was the cause of his irritation. The father acknowledged it was his view that if the alleged unacceptable risk was not established there was no justification to change the existing orders.

   [109] Family Report, par 93

5. For reasons already explained, the alleged unacceptable risk posed to the children by the mother’s partner is not sustained. Under the circumstances, there is no reason to wrench the children from their established residence with the mother. The children must therefore continue to live with the mother.

6. Consistently with the Family Consultant’s recommendation,[110] the embargo upon the children’s interaction with the mother’s partner is terminated.

   [110] Family Report, Recommendation II

7. Attention must then turn to the time spent by the children with the father.

8. Under the existing orders made in September 2007, apart from holiday time, the children spend four days/nights per fortnight with the father.[111]

   [111] Order 4 made on 19 September 2007

9. The Independent Children’s Lawyer and the mother now proposed that, apart from holiday time, the children spend only two days/nights per fortnight with the father, being each alternate weekend.[112]

   [112] Exhibit ICL2, Order 4.1.1

10. The Family Consultant also recommended a reduction in the amount of time spent by the children with the father under the existing orders.[113]

    [113] Family Report, par 134

11. Although the Independent Children’s Lawyer asserted alternate weekend time with the father still constituted “substantial and significant time” as defined in the Act (s 65DAA(3)), the mother was prepared to admit it did not. What constitutes “substantial and significant time” will vary from case to case, but as a minimum it must literally comply with the definition found within the Act (see Eddington & Eddington (No.2) (2007) FLC 93-349 at [54]). While the proposed alternate weekend time might literally meet the statutory definition of “substantial and significant time”, it hardly bears such a connotation in the circumstances of this case.

12. Nevertheless, the mother submitted the proposed truncation of the time spent by the children with the father was justified on the evidence. The restriction of their time with the father would limit the opportunity for the father to cause further psychological harm to the children and reduce the father’s interference with the children’s education and participation in extra-curricular activities. I find merit in those submissions.

13. Spending shorter bursts of time with the father will diminish the children’s exposure to the father’s interrogation about their experiences within the mother’s household. The father will likely be more interested in making better use of the lesser time he has with the children. The children’s interests will be best served in the current climate of pervasive parental conflict by spending less time with the father.

14. The father’s interest in the children’s activities has been lacking in the past. He must fail to appreciate that the children’s regular participation in sporting and cultural activities is important to their social development. The father refused to take the children to dancing lessons[114] and objected to the eldest child’s attendance at pre-school on days she was to spend with him.[115] The father has told the mother he will not facilitate the children’s attendance at extra-curricular activities.[116] The mother is properly committed to the children’s participation in those activities.

    [114] Mother’s affidavit, par 76

    [115] Mother’s affidavit, par 77

    [116] Mother’s affidavit, par 135

15. I am persuaded the time spent by the children with the father should be constricted in the manner recommended by the Family Consultant and advocated by both the mother and Independent Children’s Lawyer.

16. The children will still spend block time with the father during school holidays, as the pre-existing orders provide, but the holiday time is contained to weekly rotations unless the parties otherwise agree. The reason for containment of school holiday time is the same as for the containment of time to alternate weekends during school terms, but limited block time in school holidays will still enable the father and children to have holidays away from home together.

17. The children will also spend some time with the father on their birthdays, and they will share other special days on an equitable basis with the parties.

18. The Family Consultant doubts the father will amiably accept the decision of the Court if it is contrary to his perception of a proper parenting regime. She believes the father will not moderate his behaviour and will continue to act in a way which is emotionally abusive to the children.[117] The intransigence of the father’s belief in the sexual abuse allegations against the mother’s partner will logically make it difficult for him to accede to orders which permit the children to interact with the mother’s partner without restriction. The problem will be compounded if the father’s belief continues to be reinforced by the identical beliefs of his wife and the paternal grandmother.

    [117] Family Report, par 133

19. However, I am not as pessimistic as the Family Consultant about the prospects of the father reconsidering his attitude in light of his experience during the trial. The father said he would honour any orders that permitted the children’s interaction with the mother’s partner, even though that is the outcome he wishes to avoid. I am inclined to accept his evidence as truthful. I do not regard the father as obdurate, despite the other trenchant criticisms which were levelled at him in the trial.

20. One thing seems quite plain. If the father does not make good on his evidence and fails to change his attitude, such that the Family Consultant’s apprehension is vindicated, the children will certainly suffer for it. Their visits to the father will continue to be fraught with anxiety.

21. If the present family dynamics remain unchanged another round of litigation is likely. In such circumstances the Court will have little option but to sever the children’s relationships with the father in order to avert the terrible emotional toll on the children caused by the unremitting conflict between the parties.

22. Severance of the children’s relationship with the father was posited by the Family Consultant as one option in these proceedings.[118] However, it would be precipitous to take that course on this occasion, principally for two reasons. First, the mother and Independent Children’s Lawyer both proposed that the children continue to spend reasonably frequent unsupervised time with the father, and secondly, I accept the father’s evidence that he will abide by the Court’s decision and faithfully comply with the Court’s orders.

    [118] Family Report, par 134

23. The Family Consultant recommended the father avail himself of counselling to assist him in prioritising the children’s needs above his own. Hopefully the father will act on that advice.

Other Orders

1. The orders provide for the children to have telephone communication with the parties. The Independent Children’s Lawyer and the mother both proposed such an order.[119] Although not mentioned by the father, I expect he would like that opportunity.

   [119] Exhibit ICL2, Order 6

2. The Family Consultant also recommended imposition of an injunction prohibiting the father from permitting discussion about the mother’s partner with the children.[120] I accept the recommendation and make an order to achieve that objective.

   [120] Family Report, par 134

3. The parties are also restrained from permitting the children to be exposed to denigration of one another. Such an order is incapable of sensible opposition.

4. I accept the Family Consultant’s recommendation that the parties should continue to use a communication book,[121] so an order is made to that effect, but the parties should heed her advice about how it should be used as a conduit of important information rather than as a receptacle of dross and a vehicle for vitriol. I see no need to include in the order the detail proposed by the Independent Children’s Lawyer.[122]

   [121] Family Report, Recommendation III

   [122] Exhibit ICL2, Orders 7-9

5. The father contended that, apart from school, local supermarkets were suitable venues for exchange of the children between the parties. The Independent Children’s Lawyer and the mother alternately proposed use of a fast food restaurant as a venue for exchange of the children. I agree with the latter rather than the former proposal because the restaurant’s hours of operation are likely to be longer, including weekends, and CCTV recording is likely available. The availability of security cameras was a concern and recommendation of the Family Consultant,[123] which I adopt. I decline to include in the order the detail proposed by the Independent Children’s Lawyer.[124] The use of a public venue with security cameras was intended to avoid the need for such detailed provisions.

   [123] Family Report, Recommendation IV

   [124] Exhibit ICL2, Order 5

6. It is clearly undesirable to use the school for changeovers because of the reticence of the school staff to be involved and to retain the school as a safe haven for the children.[125] The changeover times do not correlate with school hours in any event. The orders preclude the father from attending the children’s school and pre-school without the mother’s written consent, consistently with the Family Consultant’s recommendation.[126]

   [125] Family Report, par 128, Recommendation IV

   [126] Family Report, Recommendation IV

7. The children’s school is not a place the parties can be relied upon to attend in harmony. Although the parties and family members jointly attended “grandparents day” at the eldest child’s school on 8 April 2011 without incident, only weeks later on 28 April 2011 the father angrily instructed his wife to go and tell the mother to “fuck off” when she attended the school while he and his wife were present.[127] Such overt conflict cannot be permitted to occur in an environment where the children can seek solace from the family conflict.

   [127] Family Report, par 50

8. The father said in cross-examination he would continue to report the children’s disclosures of abuse if and when they arise. He regarded it as his parental duty to do so, even though he also acknowledged there was a serious emotional cost to the children in being involved in the investigation of such allegations. I accept the Family Consultant’s opinion that involvement of the children in further formal interviews by authorities would certainly cause them psychological damage. That outcome should be avoided at all reasonable costs, but the manner of its avoidance was the subject of debate.

9. The Independent Children’s Lawyer suggested an order which prohibited the father from making any report to the Department or police concerning the children without the written consent of the mother or leave of the Court.[128] I decline to make an order in those terms. The Court’s orders should not be a bulwark against legitimate complaints being lodged with the authorities charged with the responsibility of investigating such complaints, and the terms of the proposed order would practically prevent even legitimate complaints being made. The prospect of the mother consenting to a complaint, inevitably about her or her partner, being made by the father to the authorities must be regarded as remote. Nor should the Court engender further litigation by acting as the gatekeeper to such complaints. A contested hearing would be necessary to decide whether the complaint was worthy of investigation.

   [128] Exhibit ICL2, Order 12.2

10. The Court should leave the Department and police to exercise the power entrusted to them. The Court should however arm the authorities with the material necessary for them to make informed decisions about the efficacy of any future complaints. For that reason, an order is made authorising provision to the Department of copies of the Family Report, these reasons, and the Court’s orders.

11. In the past, the children have referred to the mother’s partner by the name “Dad”.[129] Such a name is a term of endearment that should be reserved for use by children in respect of their biological father. Children’s interests are generally best served by them understanding that they have unambiguous and important relationships with their biological parents. The Independent Children’s Lawyer proposed the name “Dad” be reserved for use by the children in respect of the father, and the mother acknowledged her agreement with that proposal. In cross-examination, her partner also said he would abide by such an order. Such an order is made but, for equality, it applies to both parties and their names, not just the father.

    [129] Father’s affidavit, par 2.14; Affidavit of paternal grandmother, par 2.26;

1. There was no evidence adduced of the parties having undertaken a post-separation parenting program. An order is made that they do so, subject to its approval by the Independent Children’s Lawyer. Hopefully such a course will educate the parties about their full panoply of parenting responsibilities and cause them to review their attitude to one another. Before making such order under s 65LA(1) of the Act I considered seeking the Family Consultant’s advice, as required by s 11E of the Act, but decided her further advice was unnecessary in light of the evidence already provided by her in the Family Report and during cross-examination. I am satisfied the best interests of the children will be served by such an order, for which I have had regard pursuant to s 65LA(2) of the Act.

2. The remaining orders simply require the parties to keep one another informed about their respective contact details and the children’s academic and medical progress, which is particularly important for the father, given the mother is allocated sole parental responsibility. Such orders are uncontroversial.

3. I am satisfied that, for those reasons, the orders set out at the commencement of this judgment reflect the children’s best interests.

I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 January 2012.

Associate: 

Date:  27 January 2012

    Affidavit of paternal grandmother, par 2.27; Affidavit of father’s wife, par 2.11

    Affidavit of father’s wife, par 2.26

    Affidavit of father’s wife, par 2.10