Hollister & Gosselin

[2016] FamCA 759

FAMILY COURT OF AUSTRALIA

HOLLISTER & GOSSELIN [2016] FamCA 759

FAMILY LAW – INTERIM – CHILDREN – where mother has sole parental responsibility – where matter is to be relisted for mention at a date and time to be fixed after release of report – where father has not seen nor communicated with children since 2012 – whether father seeks interim orders to attempt to re-unite with his children – were orders permitting an attempt at reunification are in the best interests of the children.

FAMILY LAW – CHILDREN – Risk of harm – Where mother asserts father has sexually abused all children – where mother proposes no contact at all – where father’s criminal prosecution in relation to the alleged offences ended with a nolle prosequi –  where mother presents a risk of emotional harm to the children – where the mother presents a risk of continued alienation – where father does not present an unacceptable risk of sexual harm – where material before the court could not satisfy the requisite standard that the father has sexually abused the children – where mother has a genuine belief the father sexually abused the children – where the mother needs guidance and support to deal with her belief the father sexually abused the children – where mother needs support and management to help her cope with resumption of contact with the father.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60DA, 65DAA(1), 65DAC, 65L

Evidence Act 1999 (Cth) s 140

Bayer & Imhoff [2010] FamCA 532
Gorman & Huffman [2016] FamCAFC 174
Harridge & Harridge [2010] FamCA 445
K v R (1997) 22 FamLR 592
M v M (1988) 166 CLR 69
Mauldera & Orbel (2014) FLC 93-602
N & S & The Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692
Re W (sex abuse – standard of proof) [2004] FamCA 768
Russell v Close (Unreported, Family Court of Australia, 25 June 1993)
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1

B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT: Mr Hollister

RESPONDENT: Ms Gosselin

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 30 of 2012

DATE DELIVERED: 8 September 2016

PLACE DELIVERED: Townsville

PLACE HEARD: Cairns and Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 4 and 5 November 2015, 15, 16, 17 and 18 February and 16 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Quinn (4 and 5 November 2015) Ms Smales (remainder)

SOLICITORS FOR THE APPLICANT: Bassano Law

COUNSEL FOR THE RESPONDENT: Mr Fellows

SOLICITORS FOR THE RESPONDENT: Williams Family Law and Self-Rep Centre

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Susan Gray

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. All previous parenting orders are discharged, save for the appointment of the Independent Children's Lawyer.

2. Ms Gosselin (“the mother”) have sole parental responsibility for the children L born … 2005, M born … 2006, N born … 2008, O born … 2010 (“the children”).

3. The children live with the mother.

4. Orders 5 and 6 of these orders only commence to operate upon the oncologist, (or such other specialist who is primarily responsible for the management of the child M’s cancer) certifying that in their opinion, the commencement of their operation will not in any material way adversely impact upon any ongoing treatment for that illness.

5. The mother and Mr Hollister (“the father”) forthwith do all things or acts necessary for each of them and all of the children to engage in a programme or course of counselling with Relationships Australia to reunify the children with the father (“the reunification”) including, but not limited to:

   (a)Undertaking and completing all required intake procedures;

   (b)Engaging in any required individual counselling;

   (c)Engaging in any counselling where one or more of the children are also present;

   (d)Engaging in any programmes or courses offered by other service providers, as may be recommended or required by Relationships Australia from time to time;

   (e)Equally contributing to any costs of Relationships Australia or other service providers.

6. The mother and father must promptly comply with all directions that are given to them by Relationships Australia from time to time, including but not limited to:

   (a)Making the children available for any appointment which may be scheduled by Relationships Australia during the course of the reunification;

   (b)Ceasing to take the children to any counselling or therapy which Relationships Australia may advise is undesirable to be undertaken concurrently with the reunification.

7. If at any time the employee or agent of Relationships Australia conducting the reunification forms the opinion that the reunification or any part of it should be suspended, resumed or permanently stopped, then upon so advising the parties of that decision, the reunification, and the parties’ obligations under orders 5 and 6, shall thereupon forthwith be commensurately suspended, revived, or stopped, as the case may be, noting that the intent of this and the other orders referring to Relationships Australia are intended to give it the widest possible discretion in the conduct of the reunification.

8. Pursuant to s 65L of the Family Law Act 1975 a family consultant nominated by the Senior Family Consultant (North Queensland) of the Family Court of Australia be appointed to assist the parties to comply with and carry out these orders, and to supervise their compliance.

9. The mother and father will each attend any appointments scheduled by the s 65L supervisor, and provide information to her as she may request from time to time.

10. The mother is to inform the father and keep him informed of the names and addresses of any treating medical or other health or allied health practitioner who treat the child or children and authorises, by this order, that practitioner or practitioners to provide the father with all information that they are lawfully able to provide about the child or children, including the certification referred to in order 4.

11. The mother is to inform the father and keep him informed as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child or children.   

12. The mother authorises, by this order, the schools or day care centres attended by the children to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost) and at the discretion of the school, the school is able to speak to the father by way of the telephone when reports are provided at the end of each semester and any other time the school sees fit. 

13. The mother and the father are restrained from discussing these orders, court proceedings and any sexual abuse allegations which were raised in these proceedings in the presence of or hearing of the children.

14. The mother is to remove the children from the hearing and vicinity of any person who is discussing these orders, proceedings, sexual abuse allegations and/or the father.

15. The parties communicate, except unless it is a medical emergency, by way of an agreed email address and such party is to inform the other party of any change to that email address within 24 hours of such email address being changed.

16. The parties will not denigrate each other to the child or children or within any of the children’s hearing.

17. The parties and the Independent Children's Lawyer have leave to publish these orders and the reasons for them to Relationships Australia, the children’s day-care and school facilities and the child M’s oncologist, or such other specialist who is primarily reponsible for the management of her cancer.

18. This matter be listed for mention on a date to be advised to the parties, no earlier than 10 months from the date of these orders.

19. All parties have liberty to apply on 7 days notice.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC30/2012

Mr Hollister

Applicant

And

Ms Gosselin

Respondent

REASONS FOR JUDGMENT

INDEX   1
INTRODUCTION  4
THE FACTS  6

The father  6

The mother   6

The relationship   6

Post-Separation   10

THE ISSUES  23
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES       24

The statutory regime   24

Abuse, neglect and family violence  26

The standard of satisfaction required  26

The notion of unacceptable risk  28

“No contact” orders   31

WHAT IS THE NATURE OF THE RELATIONSHIP BETWEEN THE CHILDREN AND EACH PARENT  31

The mother  31

The father   31

BENEFITS OF MEANINGFUL RELATIONSHIP WITH PARENTS AND BEST MEANS OF FACILITATION   32
RISK TO THE CHILDREN POSED BY FATHER  33

Overview  33

The children’s disclosures  33

Content and consistency  33
  Conduct of mother and maternal grandparents  34
  Lack of corroboration   37
  Inconsistency with other evidence  37
  Possible innocent explanations  38
  Impossible or unlikely aspects of the disclosures  38

Criminal proceedings  39

The sexual risk assessments  39

The father’s conduct  40

Evaluation   41

RISK OF HARM TO CHILDREN BY MOTHER  43

Overview  43

Alienation  43

Mother’s unshakable conviction   43

Unamenable to order   46

Support of the maternal grandparents  47

Prospects of harm to children if alienated  47

Evaluation  47

WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP  47
LIKELY EFFECT OF CHILDREN CONTINUING TO HAVE NO COMMUNICATION OR TIME WITH FATHER  48
LIKE EFFECT OF RE-INTRODUCTION AND MANAGEMENT OF ADVERSE ASPECTS  48
EFFECT OF RE-INTRODUCTION ON MOTHER AND MEANS TO MANAGE IT   49
SECTION 60CC CONSIDERATIONS 50
PARENTAL RESPONSIBILITY  51
WITH WHOM SHOULD THE CHILDREN LIVE  52
TIME AND COMMUNICATION WITH THE FATHER  52
OTHER ORDERS  56
CONCLUSION  56
APPENDICES  57

INTRODUCTION  

1. These proceedings relate to the parenting arrangements for the parties’ four children, being L (born in 2005 and hence presently 11 years of age), M (born in 2006 and hence presently 10 years of age), N (born in 2008 and hence presently 7 years of age), and O (born in 2010 and hence presently 6 years of age) (collectively “the children”).  The stakes are high, and the consequences of a mistake could be catastrophic.  That is because Ms Gosselin (“the mother”) believes that Mr Hollister (“the father”) has on several occasions sexually abused all four children and presents such a risk of sexual harm as to justify the orders she sought, to the effect that he should neither see nor communicate with any of them ever again.  She went so far as to say that even if one of the children died, the father did not deserve to be told.

2. The father vehemently denies that he has ever acted in a sexually inappropriately way towards any of the children.  A criminal prosecution of him in relation to the alleged offences ended with a nolle prosequi.

3. However, in recognition of the fact that he has neither seen nor communicated with the children since 14 June 2012, and the fact that all four children likely believe that he sexually abused them, he only sought interim orders at the conclusion of the trial, which would provide for an attempt to re-unite him with his children, using specialised counselling.  However inside that velvet glove there was an iron fist.  He made it quite clear that, in the event reunification counselling failed because the mother was unable to support his reintroduction into the children’s lives, he would likely seek final orders that the children go into his care, and that thereafter there be a regime of orders initially wholly suspending the mother’s time with the children, but then progressively reintroducing her into their lives.

4. If the court was not satisfied that the father posed an unacceptable risk of harm to the children, then the Independent Children's Lawyer, in contemplation of the possibility of reunification, proposed that a family consultant be required to report as to certain matters and the matter then be relisted for argument as to whether an attempt at reunification should be ordered.

5. In the event that the court was persuaded that the father posed an unacceptable risk of harm, then she supported the orders sought by the mother, with some slight variation. 

6. The trial of the proceedings generally had some peculiarities attending it.  The first was that although in her trial affidavit, the mother made extensive and serious allegations against the father, these were not traversed in the usual way by the father in his material.  That is all the more remarkable because the father then was legally represented.  However during the course of the trial, pursuant to a subpoena issued to the father’s former solicitor, there was produced and tendered into evidence that solicitor’s brief to the father’s counsel in the criminal proceedings.  That brief (referred to at trial and in these reasons as the “Bovey papers”) contained a large amount of highly relevant material which was otherwise not before the court, including a much more detailed statement of the father as to events surrounding the alleged offences in particular, but the parties’ relationship more generally as well.  Moreover, the Bovey papers contained most, if not all, of the Crown papers, comprising various witness statements (including some made by the mother) the transcripts of the children’s several s 93A interviews, and transcript of cross-examination of the children which was conducted in advance of the trial.

7. One difficulty which the late production of this material led to was that the mother’s trial affidavit did not traverse the much greater detail in the father’s witness statement in the criminal proceedings, although plainly she did not accept that some of his assertions in it were correct.

8. The second peculiarity was that the father’s representation changed during the course of the trial, with his initial counsel only appearing for the first two days.

9. A further peculiarity was that it was only on the last day of trial (accepting that submissions were made later) that any real effort was made to put before the court evidence as to the means by which any reunification between the father and the children could be attempted.  Until that point, it was not at all clear, other than by reference to some amorphous notion of reunification, precisely how the father was contemplating any such order would be structured.  Counsel for the mother correctly identified that not only the lateness of that evidence, but the general way in which it was expressed, made the formulation of precise orders for reunification difficult; perhaps it is that which motivated the Independent Children's Lawyer’s orders which, again correctly, counsel for the mother identified as really only being directed towards further evidence gathering.

10. The final peculiarity, to which I will later advert in greater detail, is that notwithstanding that several Family Reports have been prepared, the children have never been interviewed.  Again it may be that this informs the orders sought by the Independent Children's Lawyer, and certainly is part of the basis upon which the mother contends that the solutions proffered by the father and the Independent Children's Lawyer, in the event that the court is not satisfied that the father poses an unacceptable risk of harm, are nonetheless in the nature of an unacceptable experiment.

THE FACTS

The father

1. The father was born interstate in 1979, and hence is presently 37 years of age.  His parents separated when he was three or four years of age; he remained living with his mother, but saw his father regularly.  After completing his schooling he moved to Victoria and lived with an uncle who, he told Mr P (a psychologist who undertook a sexual risk assessment of the father for the purposes of these proceedings) “had a problem with alcohol.”  It was at that stage of his life, when he was 21 years of age, that he met the mother.

The mother

1. The mother was born in Victoria in 1982 and hence is presently 34 years of age.  She appears to have had a generally unremarkable childhood, save that she told Dr K, a psychiatrist who assessed her for the purposes of these proceedings, that as a teenager she suffered from what she now recognises to have been an eating disorder, in that in an attempt to lose what she considered at the time to be excessive weight, she undertook a lot of exercise.

2. After she concluded her schooling at grade 12, she was employed full-time[1] in a business operated by her parents, comprising three hospitality franchises in suburban Melbourne.  Her mother, Mrs G (“the maternal grandmother”) also worked in that business; her father, Mr G (“the maternal grandfather”) who in the material is variously described as an “engineer[2]” does not appear to have worked in the business directly.

   [1]Although she had been working there part-time since 13 years of age.

   [2]Dr K psychiatric report 18 August 2015 paragraph 17.

3. A cousin of the father was working with the mother in one of the hospitality businesses.  It was that association which led the parties to meet in 2000, when the mother was aged 18 years of age.

The relationship

1. It appears as though the relationship between the parties formed and progressed quickly.  Seemingly from quite early in the piece, the father moved in with the mother, who was living at the maternal grandparents’ place.  It appears from the father’s Initiating Application that they first commenced living together on 17 September 2002, and were married in 2004.  By then the parties had purchased their first home and moved out from the maternal grandparents’ property.

2. It seems from the material in evidence before me that, at least initially during the early stages of the relationship, the father had a good relationship with the maternal grandparents.  In her interview with Mr P, the maternal grandmother said “I was happy with the relationship; and he was lovely to us at first.  And [the mother] seemed very happy with him.”  The maternal grandfather told Mr P that he even employed the father in his business, but it was not altogether satisfactory, as the father “was not compatible with the other workers who left.  And in the end, he had to be put working by himself, but he was slow.”

3. The parties’ eldest child, L, was born in 2005, a little less than 12 months after their marriage.  Her birth was planned.  At paragraph 18 of the mother’s affidavit filed 26 August 2015 (“the mother’s trial affidavit”) she recounted that:

   “Shortly after [L] was born, I recall an occasion when the father was in the bath with her and I saw that the father had an erection.  As [L] was our first child I recall thinking at the time that the father was simply not accustomed to bathing with a child and that his emotions/hormones might have been a bit mixed up.  I recall suggesting to the father that he not do it again or words to that effect.

4. The parties’ second child, M, was born about 16 months after L, in 2006.  At paragraph 19 of the mother’s trial affidavit she recounted:

   I also recall that when [M] was still quite young the father was in the bath with her and [L].  I was cooking dinner and I had asked him to bath them quickly before dinner.  When I saw that they were all in the bath together I told the father to get out.  I also told him that I didn’t think it was necessary for him to be naked in the bath with them.  I recall that the father was extremely angry at me for suggesting this.

5. It appears that after the birth of M, the mother developed post-natal depression, in consequence of which, during the course of her pregnancy with the parties’ next child, N, she was placed on anti-depressant medication.  After his birth in 2008, she was again placed on anti-depressant medication, and she told the Family Report writer, Mr W, that at this stage she was diagnosed with Bipolar Affective Disorder.[3]  

   [3]Family Report paragraph 170.

1. The notes of the mother’s treaters at the time were in evidence before me.  They contain some snapshot as to the mother’s perception of her relations with the father and others at the time.  However the mother contended in her evidence that she could not be sure what part of the history was given by her, and what part was given by the father, in that she claimed that the father frequently attended with her at the various counselling sessions she underwent.  She further said that she was sufficiently intimidated by the father’s anger at the time that she would not have contradicted history given by him to the relevant therapist, even if she disagreed with it.

2. I do not accept that the treating notes are not accurate.  I am far from satisfied that the father provided any relevant history to the mother’s therapists, and likewise I am far from satisfied, even if he did, that the mother was so subdued as to be incapable of contradicting it.  The purpose of the mother’s attendance upon therapists was to provide her with assistance to combat the prospect of a further period of post-natal depression.  I do not accept that the mother was so meek or overborne at that time, that she did not appreciate that an accurate history would be essential to obtaining the assistance that she wanted from the therapy.  I am satisfied that the notes are a contemporaneous and truthful account by the mother of her life at that time.

3. Relevant parts of those notes record:

   ·That the mother was angry all the time and had lots of arguments with the father;[4]

   ·That the mother had marked irritability and anger, especially towards the father;[5]

   ·That the father was volatile and angry, but the mother denied that the father’s anger was an issue at home;[6]

   ·That the mother saw her own irritability as the main cause of conflict with the father;[7]

   ·That the mother thought that she obtained good support from the maternal grandmother and the father;[8]

   ·That the mother attributed her longstanding difficulties with the father to the fact that she was working, and therefore independent, but the father would prefer that she didn’t work and therefore have greater control over her;[9]

   ·That the mother was concerned about the effect of her moods on the children;[10]

   ·That the mother described her mood at the time as neutral, but that she was withdrawn, angry frustrated and had a reduced ability to cope.  She said that she had no time for herself, felt overwhelmed, and was “just hanging on.”[11]

   [4]Tender bundle p 51.

   [5]Tender bundle p 55.

   [6]Tender bundle p 58.

   [7]Tender bundle p 59.

   [8]Tender bundle p 65.

   [9]Tender bundle p 69 to 70.

   [10]Tender bundle p 71.

   [11]Tender bundle p 79.

4. The notes contain conflicting diagnoses as to what the mother was then suffering from.  For instance in the notes under the heading “impression” it appears as though the primary diagnosis was one of “Bipolar 2” with a differential diagnosis of “borderline traits major depression,”[12] although on other occasions there is a primary diagnosis of major depression, and Bipolar 2 disorder is the differential diagnosis.[13]

   [12]Tender bundle p 67.

   [13]See for instance tender bundle p 60.

5. The notes have some importance in that they are quite contradictory to the contention which the mother now makes about the relationship between the parties, particularly that she was the victim of abuse and was cowed by the father’s anger and overbearing nature.  Whilst undoubtedly the father had his role to play in the parties’ arguments, I accept as accurate the mother’s account to the relevant psychiatrists in 2008 that she was angry in the relationship, and that was a major cause of the conflict between the parties.

6. Another feature of the conflict between the parties related to the, by now, sour and perhaps even openly hostile relationship, between the father and maternal grandmother.  For instance the father told Mr P that “it was no secret that I didn’t get on with [the maternal grandmother] and felt like a third wheel.  [The mother] was always consulting with [the maternal grandmother] rather than me.  And [the mother] was not an affectionate or loving individual.”

7. 2010 was a busy year for the parties.  Early in 2010 their final child, O, was born.  Then not even five months later, in June 2010 the parties moved from Victoria to Town V in Far North Queensland, according to the father to “try and make a fresh start.”[14] Apparently the parties were attracted to Town  V not only because they had honeymooned there in 2004, but also because in about August 2009, they had holidayed there with the maternal grandparents, during which holiday the maternal grandparents decided to purchase an apartment there in preparation for their retirement.[15]

   [14]P Report paragraph 55.

   [15]Mother’s trial affidavit paragraph 17 [NB parties had in fact honeymooned in Town V in 2004].

8. The move to Town V did not achieve the new start that the parties were hopeful of.  The father appears to have been resentful that, when his family came up to visit from interstate, they were not allowed to stay in the family home, but when the maternal grandparents came up, not only would they stay with the family, but they would not utilise the spare bed that had been allocated to them.[16]  Moreover the father’s impression was that while the maternal grandparents were helpful “[the maternal grandmother] would overstep her boundaries as a grandparent and would interfere with any parenting decisions that I would make, [the mother] or joint decisions we had made.”[17]

   [16]Father trial affidavit paragraph 88 and 98.

   [17]Father’s trial affidavit paragraph 87.

9. Ordinarily the reasons for separation are largely irrelevant in proceedings such as these, however the fact that the mother has given inconsistent versions about the circumstances of separation does have some potential significance here, as it may reflect adversely upon her credibility, or at least the reliability of her recollection.  When giving evidence before me, she accepted that the decision to separate was made by the father, and communicated to her by him.  That had been the father’s position in his several accounts of separation to the various professionals who had interviewed him. 

10. However in her interview with Mr P the mother is recorded as having told him:

    We moved to [Far North Queensland] in July 2010 and ended up separating within three months.  And I think he thought he could isolate me from my family.  But nothing changed really and I was the one who announced it was over.  As he agreed straight up; and he left the next morning.[18]

    [18]P report paragraph 20.

11. Mr P was not required for cross-examination by the mother.  It can therefore be seen that she has given quite different accounts to Mr P on the one hand, and in her evidence on the other.  I accept that indeed it was the father’s decision to separate and not the mother’s and what she told Mr P was not true.

12. At all events the parties did indeed separate on 17 November 2010, with the father moving out of the former matrimonial home into his own accommodation.

Post-separation

1. The initial period after separation appears to have been civil.  For instance the mother invited the father to join her and the children for Christmas, which he did, although on the mother’s version “he stayed sitting on the computer and hardly talked.”[19]

   [19]P report paragraph 22.

2. The father and mother were able to agree arrangements which saw the father seeing the older two children after school on one or more days a week, although according to the mother that was not a regular occurrence.  Part of the difficulty lay in the fact that the father’s accommodation was a one bedroom unit, which plainly was an unsuitable place to entertain the children.

3. On 12 April 2011 the parties reached a mutual agreement in relation to property settlement.  That saw the mother take over ownership of the former matrimonial home, and the father transfer to her some jointly owned shares, but in exchange receiving payments totalling $64,000.00.

4. In the course of that negotiation, the mother experienced what she believes to be the first occasion of the father stalking her.  She says that after having a telephone conversation with the father in relation to the prospective property settlement, she then telephoned the maternal grandfather to discuss matters with him, and “whilst on the phone to my father I saw that [the father] was standing directly outside my house.”[20]  She says in her affidavit that she told him to leave and went to the police about it, but did not name him directly.  She simply said that someone was stalking her.  Then from about July 2011 until September 2011 the mother says that about three mornings per week, she would regularly find cigarette butts outside her bedroom window.  She telephoned the father (who then smoked) and told him she had been to the police, and the father inferred that she had named him in that complaint.  He became angry, according to the mother.

   [20]Mother’s trial affidavit paragraph 41.

5. At around this time the father and mother agreed that the children would commence spending overnight time with the father, from lunch time on Saturday until lunch time on Sunday on alternate weekends.[21]  They also agreed that the children could return early to the mother if they so wished, which occurred on a few occasions.[22]  However the mother became quickly concerned that the father was showering himself and all four children at the same time.  By now L was six years of age and M five, and the mother was strongly of the view that it was inappropriate for the children to be around the father whilst he was naked.

   [21]Mother’s trial affidavit paragraph 47.

   [22]Mother’s trial affidavit paragraph 48.

6. For his part the father accepts that he showered with all four children and that that they were all simultaneously naked.

7. Part of the material in evidence before me was a witness statement that the father had prepared at the behest of his solicitors in the course of the later criminal proceedings against him.  At paragraph 20 of that statement he set out his justification for showering naked with the children:

   Once [the mother] questioned me about why the kids had to shower with me at the same time and I said it was hard to coordinate four kids and sometimes it’s just easier to do it all at once rather than to leave the four of them to run riot in the house.  I thought it was safer to have them with me.  I told her there was nothing wrong with what I was doing that I wasn’t doing anything untoward.  She called me a sick fuck.  I told her I didn’t appreciate it and that I wasn’t doing anything inappropriate.

8. It appears as though this conflict, and perhaps others, precipitated the parties participating in mediation with a view to resolving the parenting arrangements in relation to the children.  On 7 December 2011 as a result of that mediation, they concluded a parenting plan, which was exhibit 1 to the mother’s trial affidavit.  Paragraph 10 of that plan provided “neither party will, nor allow any other adult, to shower or bathe with the children.” 

9. Notwithstanding the parenting plan, the father said it became increasingly difficult to obtain time with the children.  At paragraph 19 of his criminal witness statement he said “[w]ithin a day of that mediation, [the mother] verbally attacked me and said that I had conspired with the mediator against her and that it was bullshit and I wasn’t going to see the kids.  It became difficult to consistently see the children.  It became very hard to plan to see the children.  [The mother] wouldn’t answer the phone, would make sure she wasn’t present on the times I was meant to pick them up.  On the odd occasion I would see them but it wasn’t frequently and it was always when it suited her and on her terms.  She dictated this.”

10. At paragraph 25 of that statement the father said “[a]fter the mediation I was much more aware of the children and the issues [the mother] had with showering.  I tried wearing speedos in the shower the first time after the mediation and I realised how ridiculous it was and I didn’t wear them.  I can’t think of another time I wore speedos in the shower.”

11. At paragraph 26 he detailed that another strategy he employed was to try and shower the children first and then shower himself afterwards, but he said that sometimes the children would jump back in the shower with him.

12. The mother freely concedes that she was highly suspicious that the father would indeed continue to shower naked with the children, notwithstanding the terms of the parenting plan.  She agreed that when the children came back from spending time with the father, she would ask them directly whether they had showered naked with him; invariably they told her that they had.  In evidence before me she conceded that from this point on she was highly suspicious that the father was a paedophile and a risk of sexual molestation to the children.  Part of her thinking in this respect may have included the apparently uncontroversial fact that the father had, during the course of the relationship, suffered from premature ejaculation.  Certainly her counsel submitted that “at the least this informs the mother’s beliefs, if not the analysis of risk.”[23]

    [23]Submissions paragraph 10.4.

13. In December 2011 the mother purchased a 2012 diary.  However on what appears to be the flysheet of that diary, she started making entries from at least 11 December 2011.  That was only four days after the parenting plan had been signed by her.  Her avowed purpose for keeping the diary was to have a contemporaneous record of relevant events pertaining to the children in case they were needed in the future.

14. I construe that as meaning that, notwithstanding the ink was still damp on the parenting plan, the mother was arming herself for any next round of the dispute.  It seems her lawyers advised her so to do.[24]  There is no evidence that the mother had kept such a diary prior to 2012, and I am comfortably satisfied that she did not keep a diary in 2011; otherwise it would have been unnecessary for her to write on the flysheet of the 2012 diary – she would have made entries in the 2011 diary.  Moreover the fact that there is no entry prior to 7 December is itself telling.  Keeping the diary was plainly a product of the 2011 parenting plan, or at least the mother’s recognition that it was unlikely to be the final iteration of the arrangements between the parties pertaining to the children.

    [24]Bovey papers p 285.

15. The diary was not directly in evidence before me.  Rather what was before me were some photocopies of parts of it which had been prepared in the course of the subsequent criminal proceedings against the father. The father’s counsel sought the production of the original of the diary, but despite searching her home, the mother was unable to locate it during the trial before me.

16. The difficulty with the diary in the form it took in evidence before me is that it is incomplete, and more, that it is in black and white.  That is significant because at paragraph 13 of her police statement given 1 March 2013[25] the mother said:

    ..I wrote my notes mainly in my 2012 diary or sometimes if I only had some paper by the phone I have written the notes on the paper and stuck them into my diary on the relevant day.  On some occasions I have read through my diary notes and added later notes at a later time in different coloured pen to what clarify certain points in the event that someone would read them.

    [25]Bovey papers p 73.

17. It is difficult therefore to clearly differentiate between what is an original, contemporaneous note in the diary, and what is a later entry made by the mother.  It is plain however, that it would be dangerous to assume that all of the entries are contemporaneous notes made by the mother at the relevant time.  Moreover, the mother appears to be an ardent doodler, and many of the entries are interspersed with her doodling.  Indeed although I can identify no part of entries in the diary which are completely obliterated by that doodling, it does appear on other pages – not before me, but before the criminal Court – that relevant parts were wholly obscured.[26] 

    [26]See, for instance, Bovey cross-examination in Bovey papers p 289.

18. Moreover it is plain that the diary is directed towards material which could potentially be used against the father.  It does not record any material other than something pertaining to the father, and certainly does not provide any contemporaneous detail of the mother’s care of the children.  In that sense it is not a diary of the children’s activities; it is a diary in which matters potentially adverse to the father have been recorded.  I have little doubt in concluding that the purpose of the diary was to maintain a record of potential ammunition for use against the father in later proceedings.  For instance on Australia Day in 2012, the entry reads “all came home badly dressed + dirty + wet.  Not fed all day.  Scratches [L] +[N].  [H] dragging on ground.”  In that entry, as in other places in the diary, plainly the abbreviation of “L +N” is intended to be L and N, and “H” the father.

19. The entry for 28 January 2012 is significant in that it records that “[L] woke at 6:00am.  By 7:00am vomiting, crying saying that she doesn’t want to go to [the father] could not hold down food or drink.”  This is the first occasion in which there is a record of the mother’s claims that the prospect of spending time with her father was causing L great distress to the point of dry reaching and vomiting.  Although there is no note of it in her diary, the mother claims that this was not by then an irregular presentation, and not isolated to 28 January.

20. The entry for 9 March 2012 is also a significant one.  It reads “txt to kids from [the father] … thank you for the special pictures we did.”  This entry was important because the mother identified in her evidence that it was this message which caused here to believe that the father was a paedophile, as distinct from merely suspecting it.  That is because she believed that the word “special” was an allusion to something sexual, or otherwise untoward, in the pictures.  At the time she did not entertain any innocent explanation for the text message, but by the same token did not ask the children about the pictures.  In cross-examination she could not explain why she did not raise it with them.

21. The next relevant entry is on the page for 13 May 2012.  It reads “On Wed 16/5 [LM+N] said [father] punched hole in kitchen window and kicked hole in bin.  [L+N] said [father] yells at them all the time – he yells at them as soon as I leave.”

22. It might be that the reason why the entry pertaining to 16 May is entered on the page for 13 May is because 13 May was a Sunday when the children came back (presumably) from the father’s care, and hence the conversation of 16 May related to events on the preceding weekend.  

23. Then on 9 June 2012 there is a note “[O] ‘ow’ when changing nappy.”  It does not appear as though this could be relating a time after the child O was returned from the father, as also on that day it is noted “agreed to 1pm drop off till 7pm Sun.”  It is unclear then precisely what date it relates to; perhaps it could be that, when the mother was changing O’s nappy prior to the children going into the father’s care, she has reportedly experienced some pain.  In any event the children spent time with the father (including overnight) on 9 and 10 June.  It transpired that this was their last overnight time with him.

24. The entry for 10 June 2012 was critical and central to the case.  It reads “[L+M] said [the father] took photos of them in the shower – called it the naked episode + took photo of [N] tucking his penis into jocks.”  I will discuss this episode, and the mother’s various reports of it, later in these reasons when discussing the risk of sexual harm which the father poses to the children, however it is fair to say that in consequence of what the children told her on that day, the mother believed that the father was taking naked photographs of them for the purposes of sexual gratification, either of himself or others.

1. The father fervently denies that he ever took photographs or videos of any of his children in the shower or when they were naked.[27]  However he does state[28]:

   I remember a time when [n] was putting his jocks (underwear) on and he pulled them up and his penis wasn’t completely covered and one of the girls’ pointed it out.  I can’t remember which one.  The girls started giggling, we all had a bit of a chuckle.  It was a light moment.  [N] pulled his underwear on properly after this.  He may have been embarrassed after this.

   [27]Father’s criminal proceedings statement paragraph 46.

   [28]ibid paragraph 47.

2. On 14 June 2012 the mother rang the Legal Advice Hotline.  This is the first step which she had taken since 10 June when she had formed the view that the father had a paedophilic interest in his own children, and was taking inappropriate photographs of them.  Her explanation for waiting for four days was that she was deliberately not acting quickly, but rather was waiting to get her head around the problem.

3. In the course of her evidence I suggested to her that others might have acted far more quickly and far more assertively; for instance driving over to the father’s house and confronting him about the horrific belief, or engaging with the authorities, but the mother, whilst accepting that others may have acted differently, did not appear to think that there was anything unusual about her own delayed response.

4. The entry in her diary of 14 June 2012 appears to be a contemporaneous note of her conversation with the Legal Advice Hotline.  From it I infer that the prospect of restricting the father to day visits and not overnights was discussed, as was the prospect of the mother wholly withholding the children from spending further time with him, which was described as a “gamble” which could go against the mother.  There was also a reference to “DoCS” and the note, to my reading, plainly records that although the mother could report the matter to DoCS, that was “risky,” whereas the children’s school could report it to DoCS.  Interestingly against the word “school” there appear two ticks.

5. Also on 14 June 2012, and likely after the mother’s conversations with the Hotline, the father next spent time with the children for one child’s birthday.  As it transpired, this is the last occasion he has seen the children.  The mother’s diary entry for that day (albeit made on the page relating to 13 June) suggests that the father was “focused on [[N]] wearing school uniform to go with him for 1.5 hours after school for [one of the children’s] birthday.”  The mother interpreted this as being a desire on the part of the father to see N in his school uniform, and to be able to take photographs of him in it.  She appeared to see something sinister in that, but said that in fact she and the maternal grandmother quickly changed the children out of their school uniforms, not because of any fear that the father had some perverted interest in the boy in a school uniform, but simply because the children’s school uniforms were expensive and they tended to get dirty when playing after school.

6. In accordance with what appears to have been the advice she received on 14 June, the mother approached the school, and arranged for the principal to speak with the two older children.  That occurred on 19 June 2012, and arising from that the school principal sent a letter to the mother.  It is annexure 2 to the mother’s trial affidavit.  It reads:

   Both your children, [L] in year 2B and [M] in year 1M, expressed to me today that they were anxious and concerned about going back to their father’s house this weekend.

   The main and only issue they have is that their father took photos of them while taking a shower and unclothed.  They both stated that they told their father not to do it but he disregarded their request.  He told them that he was going to put the photos onto the TV and show his friends.

   They are very nervous of this.  They said that they would like the photos deleted and would prefer he did not take photos of them while unclothed.

   I am concerned for the girls because they are displaying great fear and anxiety but they felt that if he did not do this they would be happy about seeing him and staying over.

   Could you please discuss this issue, and my concerns, with the girls’ father.., and request the photo be deleted and to avoid any further repeat of this activity, for the girls’ general well-being and state of mind.

7. The mother did not do as the principal suggested.  Rather she wrote a letter to the father in the following terms:

   Dear [father’s first name],

   I am writing to inform you that I have decided not to send [the children] for an overnight stay this weekend, Sat June 23^rd and Sunday June 24^th 2012 as we are concerned for their wellbeing.

   [L] and [M] have explained that they, along with [O] were photographed by you without clothes on while they were showering at your house and that they told you that they did not want you to photograph them but you did not cease to do so. They also expressed concern that they believed you may show other people the photos of them showering without clothes on. Additionally they also explained they were uncomfortable being made to wait in the bathroom without any clothing while you showered with [N] and that when they left the bathroom without your permission you became angry with them. They also stated that you took photos of [N] trying to put on his underwear after showering. They have explained that these incidents made them extremely uncomfortable which has led me to my decision. I have, on numerous occasions raised the issues of you showering with all four children and have repeatedly explained to you that the children do not require your assistance within the shower and have asked you to refrain from bathing with them.

   I would like to make a time with you to privately discuss new visiting arrangements that better suit the children or alternatively you may prefer to contact Parenting Australia to organize joint mediation to further discuss the matter.

   Regards

   [Ms Gosselin]

8. The mother arranged for this letter to be hand delivered to the father by the maternal grandfather.  The maternal grandfather told Mr P that when he saw the father “I challenged him about the allegations to his face.  I detailed what the kids had told their mother, and he started huffing and puffing and threatening.  The thing is that he never denied what was being alleged; and even said there was no problem with the way he was acting with the children.”

9. The father recalls that he was very angry at the letter and the allegations that it made, and was also angry with the maternal grandfather, and ordered him off his property.[29]

   [29]Father’s affidavit filed 18 September 2015 paragraph 11.

10. Thereafter the mother refused to allow the children to spend overnight time with the father; for his part, the father refused to accept the mother’s offer for day time only.  The matter reached an impasse, in consequence of which the father did not again spend time with the children. 

11. On 20 June 2012 the mother again rang the Legal Advice Hotline.  There is a note of that conversation in her diary page for that day. 

12. Over the succeeding few weeks the parties continued to argue about the conditions the mother sought to impose upon the father spending time with the children.  For instance on 22 June the mother recorded that she was happy to pick the children up from the father “unbathed in the same clothes that they go in” which was apparently unacceptable to the father.

13. On 5 July it is recorded in the mother’s diary that she was “happy for [the father] to have both full days [father] adamant overnight or nothing as “he’s not going to abide by my conditions.”  [Mother] stipulated showering the specific issue.”

14. On 6 July 2012 the mother’s diary notes that the father told her (seemingly in a telephone conversation) “it’s your last chance to play nice.”  That appears to have been no idle threat; on that day the father commenced these proceedings seeking orders in relation to him spending time with the children.  Those proceedings were served on the mother on 9 July 2012.

15. Four days later the children first made, according to the mother, allegations of direct sexual assault of them by the father.  The mother’s version of the alleged disclosures as contained in her trial affidavit is as follows:

    136. On or about the morning of Friday 13 July 2012, I was driving [L], [M] and [N] to school and [M] said to me words to the effect of, “When will we be going back to visit Daddy?”. I replied with words to the effect of, “When Daddy is not naughty any more, you can visit him again”. By ‘naughty’, I was thinking of the shower incident that the children had told me about.

    137. [M] then said to me words to the effect of, “Yeah, like when he says ‘play with my doodle, play with my doodle’”. I then said words to the effect of, “What? Is that what he said?”, and [L] replied words to the effect of, “Yeah, he said ‘if you’re bored you can play with my doodle’”. I then said to [M] words to the effect of, “What were you doing?”, to which she replied words to the effect of, “watching Spykids”. I asked her what she was doing in case there was some plausible explanation for what might have been a misunderstanding by her. I then asked [M], “Did you play with his doodle?”. I’m not certain who replied, but I believe it was [M] who said words to the effect of, “We didn’t want to so we just went outside”.

    138. [L] then sad to me words to the effect of, “Yeah, and like when he puts his finger in [O’s] bottom. It hurts her so when she cries we say we will change the nappy”. I then asked [L] whether she was talking about [O’s] front bottom or back bottom and she said to me, “front bottom”. I recall that [L] held up her index finger.

16. Interestingly the mother’s diary note of the conversation is much less fulsome, as follows:

    Children told me on way to school

    [Father] said…Play with my doodle, if you are bored…

    + [O]…He puts his finger in her front bottom

    It hurts her

    She is crying            So we say we

    Will change her nappy

17. The father emphatically denies any sexual abuse of the children whether as alleged or at all.  However he does recall an occasion when he was changing O’s nappy.  He told Mr P about that in the course of his interviews in 2012.  Specifically at paragraphs 66 and 67 of his report, Mr P said as follows:

    66. At this juncture, the write engaged [the father] in a closer examination of his sexual history and noted initially explained “I categorically deny all of the allegations made by the children; and those in affidavits. And I’m certainly pleading Not Guilty to the Police charges” and reiterated “I believe the children have been coached; although some elements may have been taken out of context and run with”.

    67. When queried specifically concerning his prior comment, and asked for example of such, [the father] responded “like changing of [O’s] nappy, and having to clean her bottom” and further explained “In hindsight, I concede that the older children must have been asked to watch me changing the nappy; because they’d circle around like a hawk. And they’d obviously go back and talk to their Mother”.

18. The mother went to the police on 13 July 2012 and made a complaint in relation to the father sexually abusing the children, but the police were unable to interview them on that day, and they were not interviewed until 19 July.

19. In the interim however, the mother’s diary appears to contain notes of many conversations which either she or the maternal grandmother had with the children.  For instance on 15 July there is a record of a conversation between L and the maternal grandmother, to the effect that the father requires the children to accompany him to the toilet if he intends to defecate.  There is also on that day what appears to be a retrospective entry relating to the children’s distress if they had to use the toilet at their home, apparently because they had to ask permission to use the toilet at the father’s.  There is also a note for 15 July that “[L] said [N] played Buzz Lightyear in the backyard all day and daddy made him play with no clothes on.”

20. On 16 July there is a reference to a conversation in which L and M are said to have said that the father brought handcuffs for N and the father put them on (seemingly) L.  It appears as though the maternal grandmother was present during this conversation, because it is recorded that she asked some detail about how he put them on.  Additionally, there is a record of a conversation in which L and M said that the father slaps their bottoms when they have no clothes on after a shower.  Further it is recorded that N said “daddy gave me another gun and told me to shoot the girls in the face I said no I don’t want to.”

21. Also on that day there is what appears to be a retrospective entry of “[O] ‘ow’ last four visits at least.”

22. From this I am comfortably satisfied that between 13 July and the police interviews on 19 July, the mother and the maternal grandmother were, perhaps even intensively, questioning the children about things that had occurred at their father’s house.

23. As I have indicated, the two older children were interviewed by police on 19 July 2012.  Both the DVD recordings of the interviews and a transcript of them were in evidence before me.  In those interviews the children made some disclosures of sexually inappropriate conduct by the father, including that the father had touched the child O’s vagina.  The mother was informed of that.  However at paragraph 142 of her trial affidavit, the mother relevantly recounted:

    … [The investigating police officer] also told me .. that neither [L] or [M] had made disclosures about the father touching the girls on their vaginas.   

24. The investigator told the mother that she should not question the children about the episodes that they had allegedly disclosed to the mother on 13 July. 

25. However notwithstanding that admonition, that very night the mother did indeed question L and M further.  She concedes she initiated the conversation by asking them words to the effect of “Has daddy touched your bottoms or only [O’s]?”  I am comfortably satisfied that the mother engaged in that conversation that night with a view to eliciting further disclosures from the children.  The mother’s diary records the subsequent disclosures.  It says that L told the mother that “he puts his finger in my bottom like he does to [O]…”  M is recorded as saying “he pulls that bit that pokes out between the two sides of my front bottom it hurts plus I say I don’t want him to I pull my pants back up and run outside with [N].”

26. Further at paragraph 31 of her subsequent police statement, the mother noted that during the conversation “[t]hey changed to (sic) topic of conversation but I brought it back by asking “how does he touch your bottom?””

27. Next on 26 July 2012, the mother was talking to M.  According to her police statement the mother asked M “does daddy touch [N’s] doodle?” to which M replied “he pulls it up to his head.  He pulls it really hard.”  That night the mother was driving in the car with N (on his own) and she asked him “does daddy touch your doodle?” to which N replied “yea.  He pushes my doodle in and out.  It is soft and warm.”

28. On 27 July 2012, the mother took M for a medical examination.  The doctor noted a history of “sore and painful in vaginal area.”  It seems the mother suspected that these symptoms might have something to do with the father; of course by then it had been over six weeks since the father had last spent overnight time with the children. 

29. The mother again spoke to police in relation to M and N’s further alleged disclosures, and on 29 July again attended the police station with the children.  On this occasion, L and M were again interviewed, whilst N was interviewed for the first time on the following day.  The DVD recordings of those interviews, and a transcript of them, were in evidence before me.

30. Whilst the mother was at the police station on 29 July, a pretext telephone call was made to the father.  The transcript of that was at pp 164 to 168 of the Bovey papers.  In that conversation, the father fervently denied the allegations, on occasions using strong and even intemperate language.  However it would probably not be correct to place a great deal of weight upon the father’s refutation on that occasion, as he has indicated that he was suspicious at the time that it was indeed being recorded.[30]

    [30]Police statement of Mr E, Bovey papers p 82 paragraph 7.

31. On 30 July 2012, according to the mother’s diary, she first met with a sexual assault counsellor, with which person the children have thereafter remained engaged to this day.

32. On 2 August 2012 the children were taken for a medical examination by a paediatrician at the Hospital.  M was examined first and it appears as though the examination was detailed and invasive.  L refused to be examined.  No evidence of physical injury was detected on any of the children.

33. On 5 August 2012 police officers executed a warrant upon the father’s home.  During the course of doing so, they observed that the father had a laptop computer in the bathroom, an iPad, two mobile phones and two cameras, one being digital and other polaroid.  For reasons which are completely unclear, whilst they seized the laptop, one of the mobile phones and the camera, they did not seize the iPad, the other mobile phone or (more explicably) the polaroid camera.  Considerable criticism was levelled about that at trial, in that plainly the iPad was the more portable of the computers, and had a camera built into it.

34. A forensic examination of the seized items did not reveal any incriminating material against the father.

35. On 6 August 2012 the father was charged with 16 offences relating to the children.  As a condition of his bail, he was restrained from having any contact or communication with the children, or from having others seek to do so on his behalf.  It is not in contest that he did not breach that bail condition.

36. The father’s criminal proceedings progressed through committal, and an indictment was presented against him in the District Court of Queensland.  On 31 January 2014, in accordance with relevant Queensland criminal practise, the children were cross-examined by the father’s counsel in advance of the jury being empanelled.  However M was unable to conclude her cross-examination on that occasion, seemingly because she was not being responsive to the questions that were being asked of her.  That led to her being further cross-examined on 10 June 2014, at the termination of which the Crown asked for the return of the indictment.  The father has not been subsequently charged, or again indicted, in relation to any offence in relation to the children.

37. Subsequently however, by order made in this court, the father agreed to, in effect, a continuation of the bail conditions which restrained him from directly or indirectly contacting the children.  It is not in dispute that the father has abided by that order.

38. Post-separation both the mother and the father have had several relatively short term relationships.  Perhaps the most significant relationship for the mother was with a Mr D.  Indeed he was even interviewed in the course of the preparation of the report by Mr P.  It is uncontroversial that the children appeared to have regarded him, by the time of that interview, as a father, and would refer to him as “daddy.”

39. At the time of his arrest the father was working and living in X as a tradesman.  In the weeks after his arrest, he received a number of anonymous telephone calls which he believed contained threats to his life.  In consequence of that he moved to Y, but returned to X in anticipation of the trial of the proceedings before me commencing in November 2015.  Since his return to X he has obtained employment and accommodation, but did not wish to reveal any details of that, because he believes that doing so may imperil his personal safety.  He has also formed a new relationship, but refused to reveal any details of it, again because he believes that doing so may imperil either his or his partner’s safety.

1. Given that it would involve continuous assessment of the children, and given the fact that if those assessments indicate it, the attempt at reunification will be suspended or terminated, it is difficult to see much of a downside to the father’s proposal.  True it is that the children are likely to approach even any initial counselling (which of itself would not involve them meeting or communicating with the father) with some trepidation and anxiety, and perhaps even fear, but no doubt the counsellor will be well aware of that and able to adopt strategies to assist and calm them.

2. As I have found, there will be benefits to the children in the event that they can re-establish a relationship with their father.  I do not need to repeat my earlier observations in that regard, or again refer to the professional evidence in that respect.

3. If the attempt at reunification indeed were properly characterised as a mere experiment, then the balance may weigh against attempting it.  However it is not an experiment.  It has been done in the past in other families, and there are professionals who are trained and have experience in it, that can be brought to the assistance of these particular parties and children.  It is a recognised process, not an experiment.  That is not to say that it will necessarily work, but it is most certainly worth an attempt.

4. The question then, is whether an order for an attempt at reunification (as sought by the father) or for an assessment to see, in effect, whether reunification is even worth a try (as sought by the Independent Children's Lawyer) should be made.

5. Counsel for the father correctly identified the real problem with the Independent Children's Lawyer’s proposal, even overlooking that it only came at the end of six days of trial, is that it is really nothing more than the facilitation of further evidence gathering.  Further, it can only guarantee a continuation of the litigation. 

6. The argument the mother raised against the father’s proposal really boiled down to its lack of any concrete way forward.  However that must necessarily be the case in such a complex situation at this.  There are too many variables to permit a dogmatic prescription.  Moreover, there needs to be the opportunity, and sufficient flexibility, for the attempt to be stopped or suspended if the appropriate assessment suggests it.  The court cannot make those sorts of therapeutic judgment calls in advance.

7. I am satisfied that orders requiring an attempt at reunification are in the children’s best interests and will make them.  That is because:

   ·Whilst the children’s relationship with the father is badly fractured or non-existent, providing it can be repaired safely, they would benefit from having a meaningful relationship with him;

   ·The father does not present such a risk of sexual harm to the children as to disqualify him from having a relationship with them under any circumstances whatsoever.  The circumstances in which he may safely see them will depend upon a number of variables, and it is not presently productive to predict what they might be, as some variables are still likely to be influenced by the mother’s and the children’s responses to the orders I propose to make;

   ·Unless the children are successfully reunited with the father, in all probability they will, during their childhoods, remain alienated from him, as the mother is unlikely to independently seek to facilitate that relationship;

   ·The impact on the children of not having a meaningful relationship with the father is real and likely long-lived;

   ·Whilst the negative consequences for the children of attempting reunification could be significant and long-lasting, their eventuating will be substantially dependant on the mother’s reaction to these orders, which while likely poor, is not completely predictable.  Moreover, the continued assessment of the children’s coping with the attempt provides an adequate safeguard against harm, accepting that the relevant professional can decide at any stage to suspend or stop the attempt;

   ·The Independent Children's Lawyer’s proposal is, for the reasons identified by the mother, not a desirable one.  In any event, as I understand Ms T’s evidence, such an assessment as the Independent Children's Lawyer asks me to order will occur at an early stage of the attempted reunification, in any event.  

8. That necessarily means, however, that the orders I make consequent upon this trial can only be interim.  It is impossible to see sufficiently far into the future to made final orders.

9. However as I have earlier observed, such orders must provide sufficient flexibility to the relevant therapists, and in this respect their professional judgments must be able to operate.  I have therefore crafted orders which facilitate that.

10. I have little doubt that this process will be one of the greatest challenges that the mother will ever confront in her life. She will be tempted to thwart, subvert or sabotage either the orders, or the outcome which they are intended to facilitate. She should be given every opportunity and every support which the court can afford her to face that challenge. I am therefore persuaded that, as sought by the Independent Children's Lawyer and the father, there should be appointed a s 65L supervisor to assist the parties to comply with these orders. It may also enable an easier integration of the parties with the reunification program offered by Relationships Australia, and at least can certainly do no harm in that regard.

OTHER ORDERS

1. I am otherwise satisfied that there should be orders as sought by the father, save for two things.  Firstly, I am not persuaded that I should require the children to cease their current counselling; whether that continues or not should be part of the therapeutic discretion of the reunification counsellor.  Secondly, I am not satisfied that there should be restraints on the mother from speaking about these proceedings to persons such as the children’s teacher.  It may be necessary, and indeed prudent for her to do so if, for instance, a child is upset as a result of them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of the judgment.    

I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 September 2016.

Associate: 

Date: 8 September 2016

A  FATHER PHOTOGRAPHING CHILDREN IN SHOWER
DATE        CHILD        SOURCE  CONTENT

10.06.12	L+M	Mother’s diary	·   “[L+M] said [the father] took photos of them in the shower called it the naked episode + took photos of [N] tucking his penis into jocks.”
19.06.12	L+M	School principal’s letter to mother	·   “Their father took photos them while taking a shower and unclothed.  They both stated that they told their father not to do it but he disregarded their request.  He told them that he was going to put the photos on TV and show his friends.”
19.07.12	L+M	93A Interview	·   Neither girl mentioned the father   photographing them in the shower, even though long discussions about showering with father.
19.07.12	L+M	Mother’s diary	·   Not mentioned.
29.07.12	L	93A Interview	·   Says father “took photos of us in the shower.”
29.07.12	M	93A Interview	·   Not mentioned.
15.08.12	L	Counselling notes	·   Not mentioned.
22.08.12	L	Counselling notes	·   Not mentioned.

B  FATHER INDECENTLY EXPOSED HIMSELF IN SHOWER
DATE        CHILD        SOURCE  CONTENT

10.06.12	L+M	Mother’s diary	·   Not mentioned.
11.06.12	L+M	School principal’s letter to mother	·   Not mentioned.
13.07.12	L+M+N	Mother’s diary	·   Not mentioned.
19.07.12	L	93A Interview	·   Long discussion about showering but no mention of father acting indecently.
19.07.12	M	93A Interview	·   Agrees to leading question “.. you’re in the shower..” ·   Says father showed O his penis when playing with her in the bath, at which time it was “standing up” and father said “touch it.”
19.07.12	L+M	Mother’s diary	·   Not mentioned.
29.07.12	L+M	93A Interview	·   Not mentioned by either girl.

C        FATHER INDECENTLY EXPOSED HIMSELF IN FAMILY ROOM
DATE        CHILD        SOURCE  CONTENT

10.06.12	L+M	Mother’s diary	·   Not mentioned.
19.06.12	L+M	School principal’s letter to mother	·   Not mentioned.
13.07.12	M	Mother’s diary	·   In car M says “[father says] play with my doodle if you are bored.”
19.07.12	L	93A Interview	·   “.. he asked us to play with his private part” ·   Says father was clothed; ·   Didn’t see father’s penis; ·   She hasn’t seen father touch his penis. ·   Does not recall seeing father’s penis when he was only wearing a towel.
19.07.12	M	93A Interview	·   “He poked his doodle out and he said “Play with my doodle, play with my doodle” but we just said no.” ·   “When he squeezed it, something [white] came out;” ·   “He was touching his own doodle;” ·   “He was just squeezing it and fingering it;” ·   Says father only had a brown stripped towel on at the time.
19.07.12	L+M	Mother’s diary	·   Not mentioned.
29.07.12	L	93A Interview	·   Not mentioned.
29.07.12	M	93A Interview	·   Some mention of “when he had the gap in the towel” and “he keeps doing it” which she agrees “was the bit we talked about last time.”
30.07.12	N	93A Interview	·   Agrees that he saw his father’s penis “sit up straight” on Friday “then he watched a movie and it popped out of his pants” by making “a big hole in them.”

DFATHER DIGITALLY PENETRATED L+M IN SHOWER AND/OR ELSEWHERE IN THE HOUSE

DATE        CHILD        SOURCE  CONTENT

10.06.12	L+M	Mother’s diary	·   Not mentioned.
19.06.12	L+M	School principal’s letter to mother	·   Not mentioned.
13.07.12	L+M+N	Mother’s diary	·   Not mentioned.
19.07.12	L	93A Interview	·   Although long discussion about showering with father, specifically denies anyone has touched her private parts.
19.07.12	M	93A Interview	·   Although long discussion about showering with father, specifically denies anyone has touched her on her “front bottom” and says only mother touched her “back bottom” by wiping it.
19.07.12	L	Mother’s diary	·   “Yes he puts his finger in my bottom like he does to [O].  I don’t want him to but he does it anyway.”
19.07.12	M	Mother’s diary	·   “He pulls that bit that pokes out between the two sides of my front bottom it hurts plus I say I don’t want him to I pull my pants back up and run outside with [N].”
29.07.12	L	93A Interview	·   Says father touched O’s and M’s bottoms; ·   Says father “only touched [her] front [bottom];” ·   “He didn’t stick his hand inside it, he just touched the front of it” in the family room, whilst she was clothed, “but he didn’t touch it on purpose” because “he was playing football with [N] with the football he just ran past me and touched it.” ·    “Q: Has there ever been a time when he has put his hand inside your front bottom? A: He hasn’t touched inside it, [M’] or [O’s] either. Q: Ok, how do you know that? A: Because I am always with them to look after them.” ·   “Touched [[M]’s front bottom in the shower] when he was washing them.”
29.07.12	M	93A Interview	·   Mentions father touching “inside our bottoms” albeit not in the context of a shower; ·   Gives great detail of father having pulled the little part um that’s inside your bottom where you do your wee out of … he pulled it out and it really hurt me;” ·   Done “maybe 10 times” in “front bottom and back bottom.”
30.07.12	N	93A Interview	·   Says father put “his other hard fingers” into all 3 girls’ front bottom’s in the family room on the same day as the father pulled his penis.

EFATHER DIGITALLY PENETRATED L+M AT THE PLAYGROUND

DATE        CHILD        SOURCE  CONTENT

10.06.12	L+M	Mother’s diary	·   Not mentioned.
19.06.12	L+M	School principal’s letter to mother	·   Not mentioned.
13.07.12	L+M+N	Mother’s diary	·   Not mentioned.
19.07.12	L	93A Interview	·   No mention of the playground, and specifically denies anyone ever touched her privates.
19.07.12	M	93A Interview	·   No mention of the playground, and specifically denies anyone has ever touched her on her “front bottom” and says only mother has touched her “back bottom” by wiping it.
29.07.12	L	93A Interview	·   Not mentioned
29.07.12	M	93A Interview	·   “At [the playground] when we were getting changed …” ·   “He put one hand in the front one and on hand in the back one;” ·   “His sharp fingers and he scratched inside.  Really, really hurt us … [in a change room].”
30.07.12	N	93A Interview	·   Seems to say went to [the playground] once, but can only recall “I got a gum ball.”

F   FATHER INDECENTLY ASSAULTED W BY STRETCHING HIS PENIS
DATE        CHILD        SOURCE  CONTENT

10.06.12	L+M	Mother’s diary	·   Not mentioned.
13.07.12	L+M+N	Mother’s diary	·   Not mentioned.
19.07.12	L	93A Interview	·   Not mentioned.
19.07.12	M	93A Interview	·   Not mentioned.
19.07.12	L+M	Mother’s diary	·   Not mentioned.
26.07.12	N	Mother’s diary	·   “Pushes my doodle in and out.. it is soft plus warm.  Daddy does it when I am on my own.. no the girls aren’t there when he plays with my doodle.”
29.07.12	M	93A Interview	·   “Dad pulled [N’s] doodle up to his chin and it really hurt him.”
29.07.12	N	93A Interview	·   “And then he pulled my doodle really hard.. it feeled like it was gonna fall off.. because he didn’t like me;” ·   Says that it has only occurred once.
9.08.12	M	Counselling notes	·   “Dad pulled [N’s] pee.” ·   “He tried to pull it up to his head.”
12.09.12	N	Counselling notes	·   “Daddy pulled my doodle up to my head.”

G   FATHER DIGITALLY PENETRATED THE CHILD O
DATE        CHILD        SOURCE  CONTENT

10.06.12	L+M	Mother’s diary	·   Not mentioned.
13.07.12	L+M	Mother’s diary	·   “+ [O].. he puts his finger in her front bottom.  It hurts her.  She is crying so we say we will change her nappy.”
19.07.12	L	93A Interview	·   Not mentioned
19.07.12	M	93A Interview	·   Although says father showed O his penis when playing in the bath, at which time it was “standing up” and father said “touch it”, is no mention of him digitally interfering with O.
29.07.12	L	93A Interview	·   “He’s touched [O’s] and [M’s] [bottoms].”
29.07.12	M	93A Interview	·   “He hurt [O’s] front bottom.”
30.07.12	N	93A Interview	·   “He put his pointy finger into [O’s] bottom;” ·   “Touched [[M’s] front bottom in the shower] when he was washing them.”