HUTCHINSON & HUTCHINSON
[2011] FamCA 27
•28 January 2011
FAMILY COURT OF AUSTRALIA
| HUTCHINSON & HUTCHINSON | [2011] FamCA 27 |
| FAMILY LAW – CHILD ABUSE – Magellan case – allegations of sexual abuse of the children by the father – finding that the father poses an unacceptable risk of sexual abuse to the children – presumption of equal shared parental responsibility rebutted FAMILY LAW – CHILDREN – Parental responsibility – not a contested issue – parties agree the mother shall have sole parental responsibility FAMILY LAW – CHILDREN – With whom the children shall live – where the mother is the children’s primary carer – where the children have always lived with the mother – parties agree the children shall continue to live with the mother FAMILY LAW – CHILDREN – With whom the children shall spend time and communicate – where the father poses an unacceptable risk of sexual abuse to the children – meaningful relationship – where the children’s relationship with the father has deteriorated – where the father poses a risk of family violence to the mother – children to spend supervised time with the father once annually – communication restricted to written communication – mother bears costs of conveying children to annual visits to father FAMILY LAW – CHILDREN – Relocation – mother sought order permitting relocation phrased in declaratory terms – order in those terms is not a proper exercise of power – relocation of the children is an exercise of the mother’s sole parental responsibility FAMILY LAW – INJUNCTION – Mother sought an injunction to regulate the father’s behaviour towards her and the children – the orders provide infrequent time spent by children with the father – time spent by children with the father is supervised – mother may seek a family violence order under the relevant State legislation – decline to make injunction |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG(1)(b), 60K, 61B, 61DA, 62G(8), 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68B, 114 |
| A v A (1998) FLC 92-800 at 84,996-84,997 In the Marriage of B and B (1993) FLC 92-357 Goode v Goode (2006) FLC 93-286 H & K [2001] FamCA 687 McKenzie v McKenzie (1970) 3 All ER 1034 M & M (1988) 166 CLR 69 at 76-77 McCall v Clark (2009) FLC 93-405 Moose v Moose (2008) FLC 93-375 MRR v GR (2010) 240 CLR 461 Napier & Hepburn (2006) FLC 93-303 Potter & Potter (2007) FLC 93-326 U v U (2002) 211 CLR 238 Re W (Sex abuse: standard of proof) (2004) FLC 93-192 W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 WK v SR (1997) FLC 92-787 |
| APPLICANT: | Ms Hutchinson |
| RESPONDENT: | Mr Hutchinson |
| INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke, Legal Aid New South Wales |
| FILE NUMBER: | NCC | 1716 | of | 2007 |
| DATE DELIVERED: | 28 January 2011 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 14, 15, 16 & 17 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hamilton |
| SOLICITOR FOR THE APPLICANT: | Manning Valley Legal and Conveyancing |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Rourke, Legal Aid NSW |
Orders
All former parenting orders relating to the children H, born … May 2001, and C, born … January 2006, (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that the children spend time with the father for four hours on one occasion annually, to occur on a day during the children’s school holidays at the conclusion of the first school term, commencing at the time nominated by the Rainbows Contact Service at Broadmeadow, NSW (“the Centre”), with such time to be spent at and supervised by staff of the Centre.
For the purpose of implementing Order 4:
(a)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the Centre.
(b)Each party shall comply with all reasonable requests and directions of the Centre.
(c)The father shall pay any costs due to the Centre for use of the Centre’s venue and supervisory services.
(d)The mother shall give the father one month’s notice in writing of the date upon, and the times between, which the children are to spend time with him at the Centre.
(e)The mother shall cause the delivery of the children to, and the collection of the children from, the Centre at the commencement and conclusion of the time spent by the children with the father.
Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:
(a)By the father being able to send emails, letters, cards, and/or gifts to the children no more frequently than once per calendar month.
(b)By the mother assisting the children to send to the father any emails, letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.
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.
The mother shall notify the father of any medical emergency, illness or injury suffered by the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.
The parties are restrained from causing or permitting the children to be known by any surname other than “Hutchinson”.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hutchinson & Hutchinson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1716 of 2007
| MS HUTCHINSON |
Applicant
And
| MR HUTCHISON |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
This litigation represents the second round of disagreement between the parties about the parenting orders that promote their children’s best interests.
The first proceedings were concluded by final consent orders made in November 2008, under which the children were to live with the mother and spend substantial and significant time with the father.
These proceedings were commenced in May 2010 following a series of revelations by the children that caused the mother to suspect that the father had sexually abused one or both of the children, or alternatively, that he represented an unacceptable risk of sexual abuse to them. The mother sought to discharge some of the existing orders so as to preclude the children from spending any time with the father.
The father denied any sexual impropriety, and contended that his denial was vindicated by the decision of authorities not to prosecute him in relation to the sexual abuse allegations following an investigation by the NSW Joint Investigation Response Team. The father advocated for retention of the orders agreed in November 2008.
Although the allegations of sexual abuse, and the risk thereof, were the catalyst for these proceedings and the issue of primary importance, the issues broadened to encompass wider allegations of misconduct by the father and a counter allegation that the mother was deliberately aligning the children against the father so as to facilitate her intended relocation with the children to Western Australia.
Preliminary application
The father’s sister, Ms P, filed an Application in a Case on 13 December 2010, which was addressed prior to the commencement of the final trial on 14 December 2010.
The application sought the Court’s permission for the father’s sister to speak on behalf of the father at trial. The application was not limited to her participation in the proceedings as a McKenzie friend of the father in the traditional sense (see McKenzie v McKenzie (1970) 3 All ER 1034), but rather sought that the father’s sister be permitted to act as the father’s advocate.
The father was formerly legally represented in the proceedings, but his former solicitor filed a Notice of Ceasing to Act on 24 November 2010.
The Independent Children’s Lawyer did not oppose or consent to the application.
The application was opposed by the mother, essentially for two reasons. Firstly. Ms P was not a legal practitioner and would not therefore conduct the case, as a legal practitioner would, with the ethical duty owed to the Court in mind. Secondly, the mother felt uncomfortable about Ms P.
The application was granted, over the objection of the mother, with reasons to follow. These are those reasons. Having regard to the mother’s expressed fear of the father, due to his alleged physical abuse and inappropriate sexual behaviour towards her, one might have logically thought that she would prefer to face cross examination by Ms P rather than the father. Little weight was therefore attributed to the rather vague submission that the mother felt uncomfortable about Ms P. Although it is true Ms P had no appreciation of the ethical duty owed to the Court by an advocate, the risk of her breaching that convention was not as compelling a consideration as the father being deprived of the best possible presentation of his case through anxiety or ignorance.
Proposal and primary evidence of the mother
The mother pressed for the orders set out within her Amended Initiating Application filed on 2 December 2010, which orders served to sever all interaction between the father and the children, permit the mother to relocate to Western Australia with the children, and permit the mother to change the children’s surname.
In support of those orders the mother relied upon:
a)The Form 4 Notice of Child Abuse or Family Violence filed on 11 May 2010;
b)Her affidavit filed on 2 December 2010; and
c)The affidavit of the maternal grandmother filed on 2 December 2010.
The evidence of the mother was not filed in accordance with the Court’s procedural orders, but no objection was raised by either the father or Independent Children’s Lawyer.[1]
[1] Notations B, D made on 6 December 2010
Proposal and primary evidence of the father
The father pressed for the orders set out within his Response filed on 21 June 2010, which would implement restoration of the orders made on 18 November 2008 in the Federal Magistrates Court.
In support of those orders the father relied upon:
a)His affidavit filed on 7 December 2010; and
b)The affidavit of the paternal grandmother filed on 7 December 2010.
As was the case with the mother, the father failed to file that evidence in accordance with the Court’s procedural orders, but no objection was taken by either the mother or Independent Children’s Lawyer.[2]
[2] Notations C, E made on 6 December 2010
In view of the father’s desire to be represented by his sister, the father was not permitted to rely upon her affidavit evidence. The father, through his sister, expressed a preference for representation by his sister as an advocate to reliance upon her as a witness.
The father also sought to rely upon an additional affidavit sworn by him, previously filed in the proceedings in June 2010. He was not permitted to do so because such reliance was in breach of the procedural orders made on 6 September 2010.[3]
[3] Orders 13, 15
Unfortunately, a large proportion of the father’s evidence simply answered, paragraph by paragraph, an affidavit previously sworn and filed by the mother, which affidavit was not read by the mother at final trial. The mother’s failure to read that affidavit was not a sharp forensic tactic, but rather mere compliance with the Court’s procedural orders.[4]
[4] Order 15 made on 6 September 2010
The father annexed to his affidavit the Family Report prepared in the last proceedings concluded by the parties in November 2008.[5] The mother conceded the report was admissible in these proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”)(s 62G(8)) but, in the absence of cross examination of the author of that report, less weight could be reposed in the untested opinions expressed within it.
[5] Father’s affidavit, Annexure A
Proposal of the independent children’s lawyer
The Independent Children’s Lawyer did not begin the trial with any settled proposal. During final submissions the Independent Children’s Lawyer tendered a Minute of Orders setting out the orders proposed by her.[6] She proposed that the children resume spending restricted time with the father, with such time to be supervised for an initial period of 12 months.
[6] Exhibit ICL13
Other than the tender of exhibits, no other evidence was adduced by the Independent Children’s Lawyer.
The Independent Children’s Lawyer and the mother relied upon the evidence of the Family Consultant, Ms D, contained within her affidavit affirmed on 30 August 2010. The Family Consultant was cross examined on that evidence.
The Independent Children’s Lawyer and the mother also relied upon the Magellan Report dated 15 June 2010 provided to the Court by the NSW Department of Human Services.
Background facts
The parties commenced cohabitation in November 1996,[7] and finally separated in May 2007.[8]
[7] Mother’s affidavit, par 10
[8] Amended Initiating Application, Part C
Two children were born to the parties during their relationship. Those children are H, born in May 2001, and C, born in January 2006.[9] At the time of trial the children were aged 9 and 4 years respectively.
[9] Mother’s affidavit, par 13
After separation, the children remained living primarily with the mother. Both parties continued to live in the area of the mid north coast of NSW and were able to exchange the children between them without undue practical difficulty or expense.
The parties contested parenting orders in respect of the children before the Federal Magistrates Court. Those proceedings were concluded when the parties agreed upon final orders, which were made on 18 November 2008. In effect, those orders provided for:
a) The children to live with the mother (Orders 1 and 5)
b) The mother to have sole parental responsibility for the children (Order 2).
c) The children to spend substantial and significant time with the father, which included alternate weekends, intervening evenings, and school holidays (Order 3), subject to some limited supervision by the paternal grandmother (Order 4). Provision was also made for regular telephone communication between the children and the father (Orders 8 and 9a).
d) The time spent by the children with the father to be conditional upon the father continuing to test negatively to illicit drug use on urinalysis for a period of 12 months (Orders 14-17).
e) Restriction upon the father’s attendance within 100 metres of the changeover venue (Order 7).
f) The parties’ use of a communication book (Orders 10 and 11).
The mother commenced the current proceedings in May 2010, seeking to annul the orders agreed in November 2008 which regulated interaction between the children and the father. The catalyst for the current proceedings was a series of disclosures by both children, but primarily the eldest child, to the mother and a counsellor in early 2010 which led the mother to believe that one or both of the children had been sexually abused by the father, or that they were at an unacceptable risk of sexual abuse by the father.
After consultation with her solicitor, the mother severed the children’s interaction with the father in April 2010 and the proceedings were commenced shortly afterwards.
The father was put on notice about the reason for the mother’s action. The mother’s solicitors wrote to the father on 22 April 2010 informing him of the mother’s decision and the reasons for it,[10] and when the proceedings were formally commenced some weeks later the mother filed a Form 4 Notice of Child Abuse or Family Violence setting out the substance of her allegations against the father.
[10] Mother’s affidavit, par 207, Annexure H
The matter was listed before the Court on an urgent basis, as required by s 60K. On 20 May 2010, interim orders were made consensually between the parties suspending the orders made in November 2008 providing for the children to spend time with the father. The orders about the changeover venue, the injunction restraining the father from being in close proximity to the changeover venue, and the use of a communication book were also discharged.
Simultaneously with the making of those interim parenting orders, the matter was assigned to the Magellan list of the Court, a Magellan report was ordered from the NSW Department of Human Services, and an Independent Children’s Lawyer was appointed.
The father filed his Response on 21 June 2010, in which he sought both final and interim orders discharging the interim orders made in May 2010 and reversion to the final orders made in November 2008. An interim hearing was conducted on 6 September 2010, at which time the father’s application for interim parenting orders was dismissed (see Hutchinson & Hutchinson [2010] FamCA 827). The orders made in May 2010 remained in place. An additional consent order was made requiring the father to continue his submission to random urinalysis.
Under the Magellan protocol, the proceedings were expedited to final trial. A series of procedural orders were made and the matter was fixed for trial commencing on 14 December 2010.
The trial commenced on 14 December and concluded on 17 December 2010. Judgment was reserved.
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Act, under which the meaning of a “parenting order” is defined (s 64B).
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).
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).
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).
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.
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).
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.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
The “magellan” allegation
This case was classified under the Magellan protocol of the Court by reason of an allegation that the father sexually abused one or both of the children. It is necessary to closely evaluate the evidence pertaining to that allegation, as it is the primary issue in the case.
The allegation is not confined to a single event or disclosure, but rather drawn from a series of representations by both children, but principally the eldest child, over a period of months, together with observations made by the mother of the eldest child’s behaviour.
During 2009 the mother observed the eldest child playing with her genitals. That behaviour became more pronounced up to January 2010.[11] The mother’s evidence about that is reliable because it is corroborated. The paternal grandmother conceded to the Family Consultant that she had seen the eldest child “touching herself”,[12] the maternal grandmother also saw the child act in that manner,[13] and the child’s counsellor later told the mother that when the child discussed the father during counselling she “played with herself”.[14]
[11] Mother’s affidavit, par 150
[12] Family Report, par 93
[13] Affidavit of maternal grandmother, par 12
[14] Mother’s affidavit, par 201
Some time around Christmas 2009 the eldest child said to the mother “Mum, Dad told me when you first met you grabbed him on the doodle.”[15]
[15] Mother’s affidavit, par 149
On 1 January 2010 the children arrived home from spending time with the father. During the day the mother chided the eldest child for touching her genitals. About 30 minutes later the child said to the mother “You know how you said that it is my private part, well the other day at Dad’s I got out of the shower and I was drying myself and Dad said ‘I’ll do it’ and he kissed my peachy and said ‘I love it’”.[16]
[16] Mother’s affidavit, par 151
Although it is common ground that the eldest child refers to her genitals as her “peachy”, the mother sought confirmation from the child about the region of her body to which she was referring. In response, the child used a circular motion to point to an area on her body that the mother describes as being “the top of her vagina”.[17]
[17] Mother’s affidavit, par 152
The mother asserts that the child then became upset and implored the mother not to tell anyone else about what she had just divulged, asserting that it was a “secret”.[18]
[18] Mother’s affidavit, par 152
The mother said in cross examination that although she did not want to believe it, she formed the view at that time that the father had probably sexually abused the eldest child. The mother contacted a doctor, naturopath, and counsellor for advice.[19] The mother also reported the incident to the maternal grandmother, who then travelled from Western Australia to stay with the mother and children on the mid north coast of NSW, arriving on 9 January 2010.[20]
[19] Mother’s affidavit, par 154
[20] Affidavit of maternal grandmother, par 12
The counsellor to whom the mother spoke apparently reported the matter to the NSW Department of Human Services and arrangements were subsequently made for the eldest child to be interviewed by the Joint Investigation Response Team (“JIRT”) on 13 January 2010.
There is no transcript of the child’s interview with JIRT on 13 January 2010 in evidence. The best evidence of the interview is summary notes of the interview compiled by officers of JIRT[21] and the contents of the Magellan Report. During the interview on 13 January 2010 the eldest child made no disclosure of the father touching or kissing her on the genitals. The child did disclose that a person had kissed her twice on what is described as her “belly”, but declined to identify that person.[22]
[21] Exhibit ICL3
[22] Magellan report, page 3.5; Exhibit ICL3
Immediately following the JIRT interview the eldest child was distressed. As she departed the JIRT premises the child remonstrated with the mother about her perception of the mother’s betrayal of her confidence by divulging her secret.[23] She told the mother that the father did not want her to tell anyone and had asked her to promise she would not do so, which promise she gave to the father. The child concluded by saying to the mother “I told you because I thought I could trust you, and you turned around, and then you turned around and told somebody.”[24] Once back at the car, and in the presence of the maternal grandmother, the child said “He [the father] will just get upset, because it was our secret, then I told you and you told somebody else.”[25]
[23] Mother’s affidavit, pars 155-185
[24] Mother’s affidavit, par 169
[25] Mother’s affidavit, par 181
The accuracy of that evidence was not challenged, which is unsurprising because the mother asserted that she had recorded and transcribed the conversation that transpired between herself and the eldest child.[26]
[26] Mother’s affidavit, pars 155, 186
The eldest child attended a counselling appointment that had been arranged for her on 14 January 2010, apparently on referral from JIRT.[27] The child was initially resistant to interaction with the counsellor but became engaged as rapport was developed. The counsellor discussed private parts of her body, which the child correctly identified, calling her genitals her “peachy”. When the child was asked a direct question about whether the father had touched her there she responded “I told him not to do it again”.[28] At the conclusion of the session the counsellor provided the mother with a “Body Safe workbook”, which was apparently a self-protective behaviour instruction manual for children, to discuss with the child.
[27] Exhibits ICL3, ICL4
[28] Exhibit ICL5
As a consequence of the child’s statements to the counsellor during that session, which implied she had been touched by the father on the genitals and revealed she had instructed the father not to do so again, a further interview of the child by JIRT was arranged for 18 January 2010.[29] The child agreed to participate, but only if accompanied by the counsellor and only if she would not be interviewed again after that.[30]
[29] Exhibits ICL5, ICL6
[30] Exhibit ICL6
As with the first JIRT interview, there is no transcript of the child’s second interview with JIRT on 18 January 2010 in evidence. The best evidence is again summary notes compiled by JIRT officers[31] and the Magellan Report. The child was reluctant to participate in the interview. On that occasion she disclosed that it was the father who had kissed her on the “belly”, but did not elaborate the context in which that occurred.[32] The kiss was placed at some point on her body below the navel.[33] The child said that she was not fearful being with her father.
[31] Exhibits ICL2, ICL3
[32] Magellan Report, page 3.8
[33] Exhibit ICL2
The father was informed of the allegations at about that time. He was also interviewed on 18 January 2010. He told JIRT officers that he had kissed the child’s “belly” whilst playing with her, and had applied cream to the children’s bottoms when needed.[34] Following his interview on that day the father telephoned the mother and said to her “I told the copper if I find out who dobbed me in I will kill ‘em”.[35]
[34] Exhibit ICL3
[35] Mother’s affidavit, par 188
The paternal grandmother asserts, but the mother denies, that the mother told the father during that telephone conversation she did not believe he would have sexually molested the eldest child. Even if the mother did say words to that effect it is not proof that the alleged molestation did not occur. It is just as likely proof of the mother being prepared to say anything to appease the father because of her apprehension of him, particularly when it was preceded by the father’s literal or figurative threat to kill.
On 22 February 2010 the eldest child reported to the mother “Daddy said you had nice little boobies like mine when you first met.”[36] The maternal grandmother corroborates the comment made by the eldest child to the mother.[37]
[36] Mother’s affidavit, par 192
[37] Affidavit of the maternal grandmother, par 21
On 23 February 2010 the eldest child reported to the mother “When [the youngest child] showers with Daddy she pulls on his doodle and says ‘snake Daddy’”.[38] The eldest child has also reported to the mother on numerous occasions “Dad puts his doodle between his legs and says ‘Look, I’m a girl’”.[39]
[38] Mother’s affidavit, par 193
[39] Mother’s affidavit, par 199
Some little while after collecting the children from the father at changeover on 15 March 2010 the eldest child said to the mother “I had showers with Dad on the weekend.”[40] The youngest child also told the mother that day “I had a shower with Daddy and [the eldest child], I sat on the floor then Daddy pushed me in the room and shut the door.”[41] The maternal grandmother corroborates the comment made by the youngest child at that time.[42]
[40] Mother’s affidavit, par 194
[41] Mother’s affidavit, par 197
[42] Affidavit of maternal grandmother, par 17
On 16 March 2010 the mother took the eldest child to the doctor in respect of her complaint about having an “itchy peachy”. The child was taken to a doctor to investigate the possibility of her having a urinary tract infection.[43] There is no suggestion that the mother associated the child’s itchy genitals with physical contact by the father. The mother conceded in cross examination that the child had certainly said nothing of the sort. Nevertheless, although there is no evidence about the actual conversation, in the course of the medical consultation the doctor posed a direct question to the child about sexual assault and the child replied “maybe”.[44] The mother asserts that the doctor was consequently suspicious of sexual abuse of the child by the father.[45] I do not regard that evidence as probative and dismiss it from my consideration. The purpose of the consultation was unrelated to alleged sexual abuse, the child made no inculpatory disclosure about the father, the child gave an equivocal answer when asked a leading question about sexual abuse in the presence of her mother, and she exhibited no injury. It was impossible for the doctor to reliably impute sexual impropriety between the father and the child. Apparently the doctor simply advised that the child take salt baths and that cured the itch.[46]
[43] Affidavit of maternal grandmother, par 16
[44] Exhibit ICL7
[45] Mother’s affidavit, par 194-196
[46] Exhibit ICL8
On 17 March 2010 the eldest child was unwell in bed. The mother was sitting with her. The child then started to lick the mother’s arm. When the mother instructed her to desist the child asked the mother “Does anyone else do that to you anywhere on your body?”[47] The mother said in cross examination that she regarded that as evidence of the child’s sexual abuse. She immediately reported that incident to the child’s counsellor.[48]
[47] Mother’s affidavit, par 198
[48] Exhibit ICL7
On 29 March 2010 the mother took the child to the doctor in relation to a complaint of diarrhoea. On the way to the consultation the child asked of the mother “Will the doctor ask me about my secret again?” The child then said to the mother “If I tell her my secret I will go to gaol.”[49]
[49] Mother’s affidavit, par 202
Although unclear as to when, the maternal grandmother contends that during April 2010 she heard the eldest child tell the mother the father had kissed her on the “peachy”.[50]
[50] Affidavit of maternal grandmother, par 21
On 10 April 2010, while the mother was putting the eldest child to bed, the child said to the mother “Dad says he loves kissing me because it’s just like kissing you, he told me to tell you that.”[51]
[51] Mother’s affidavit, par 203
On 18 April 2010, while on the toilet, the youngest child said to the mother “I watch Daddy go to the toilet, I’m not going to play with Daddy’s doodle anymore”.[52]
[52] Mother’s affidavit, par 204
Both children attended an appointment with the counsellor the following day, being 19 April 2010.
In the course of the session that day the youngest child told the counsellor “I have a secret with Daddy”, and in response to a question as to the nature of the secret said “Daddy said ‘touch my doodle’” and giggled.[53] She said that it had occurred “a long, long time ago” when she was “on holidays”. The mother asserts that the youngest child drew a picture at some point during the session that was described to her by the counsellor as depicting a phallus,[54] but no such event is described in the counsellor’s notes.
[53] Exhibit ICL9
[54] Mother’s affidavit, par 205
The counsellor then spoke separately with the eldest child, who was aware that the youngest child had divulged some form of secret and was inquisitive about the nature of that secret. The counsellor told the eldest child that it was confidential, but she persisted by provocatively suggesting that the youngest child’s secret might be the same as her own secret. That was the prompt for direct discussion about the eldest child’s secret. The discussion ensued as follows when the child was asked to tell her secret:[55]
[55] Exhibit ICL9
Child: “I don’t like to remember. You already know.”
Counsellor: “No, you told [the former counsellor].”
Child: “Well he touched me.”
(there is no dispute that the child was referring to the father at that point)
Counsellor: “Can you show me?”
(the child then put her finger at a point where her legs ended at pubis (sic))
Counsellor: “How did he touch you?”
(the child did not want to say how and she was invited to spell)
Child: “L, I, - I don’t know how to spell the rest.”
Counsellor: “Can you show?”
(the child then pointed to the mouth of a male doll from the doll house)
Counsellor: “How often did it happen?”
Child: “Once I think. Maybe 6 months ago. Maybe November or December. Maybe before Christmas. Maybe before Christmas holiday.”
Counsellor: “Anything else you want to say?”
Child: “I don’t like to remember. I just want to get on with it.”
To ensure accuracy, the counsellor read her notes back to the child, which the child corrected. The child even asked for clarification about the phrase “legs ended at pubis”. When the counsellor pointed to her pubis, the child corrected the counsellor by touching herself at a point described as being just above the pubic bone by a couple of inches and well below the navel and said “He did it here”. The child also confirmed that she only remembered one occasion.[56]
[56] Exhibit ICL9
Shortly following the counselling session on 19 April 2010 the counsellor made a notification of suspected sexual abuse of the children.[57] No further JIRT interview was undertaken with the eldest child, but the youngest child was interviewed by JIRT officers. In that interview the youngest child was unable to articulate an understanding of the distinction between truth and lies, and her disclosure about the father’s genitals was made in the context of her seeing him urinating in the toilet with the door open. The child said that she had not touched the father’s penis. No further action was taken by JIRT.[58]
[57] Magellan Report, page 3.9
[58] Magellan Report, page 4.1; Exhibit ICL12
The mother said in cross examination that the counsellor told her then that the allegations of sexual abuse were genuine, in which case it was for the mother to decide what action to take. The disclosures by the children on 19 April 2010, together with the advice she received from the counsellor, led the mother to decide to terminate the children’s interaction with the father. The mother’s solicitors wrote to the father on 22 April 2010 confirming and explaining the mother’s decision.[59] The allegation of sexual abuse was notified as the “principal” reason for the mother’s decision, but the “difficulties” between the parties since the last orders were made in November 2008 were also mentioned.
[59] Mother’s affidavit, Annexure H
On 12 May 2010 the mother had conversations with both children individually. The eldest child approached the mother and disavowed anything the youngest child may say about her having “kissed Dad on the doodle”. The child was upset and sobbing at the time. The mother was intrigued and later that same day questioned the youngest child about what the eldest child did at the father’s home, to which the youngest child responded that she “eats Daddy’s doodle”. The mother reported those conversations to the children’s counsellor the following day.[60] The counsellor advised the mother to report the matter to the NSW Department of Human Services, which she did. The Department received a report on 14 May 2010, at which time a decision was made that it was not in the children’s best interests to conduct any further interviews.[61]
[60] Exhibit ICL10
[61] Magellan Report, page 4.5
It is common ground that the JIRT investigation into the allegations is concluded. On the current evidence, the father will not be prosecuted. The mother formed that view following her telephone conversation with an officer of the NSW Department of Human Services in July 2010. The suggestions in the Magellan Report[62] and Family Report[63] that the investigation is incomplete are inaccurate. The Magellan Report was prepared in June 2010 and the Family Consultant understandably relied upon what she read in the Magellan Report.
[62] Page 4.5
[63] Page 2.9, pars 36, 113
Several salient observations may be made about the evidence.
I accept the mother accurately reported the conversations she had with the children. She was not challenged about either the accuracy or truthfulness of her evidence in that regard.
I also accept the mother accurately reported her observations about the tendency of the eldest child to masturbate, the eldest child’s distress and annoyance with the mother after the JIRT interview on 13 January 2010, and the eldest child licking the mother’s arm on 17 March 2010. The mother was not challenged about the accuracy or truthfulness of that evidence either.
There can be no doubt about the accuracy of the children’s statements to the JIRT officers and their counsellors because their statements are recorded or summarised in contemporaneous records made by those independent persons.
Simply because the children actually made the statements described does not, of course, mean that their statements were truthful. However, at least in respect of the eldest child, it is unlikely that she was mistaken about what she said. In all probability, her reports to the mother, JIRT officers, and counsellors were either truthful or deliberately false.
Nothing about the eldest child’s presentation suggested to the mother, JIRT officers, or counsellors that the child was lying at the time she made her statements to them. Moreover, in a test administered by the Family Consultant, the child asserted that she never lied.[64] The Family Consultant found her to be intelligent and articulate.[65]
[64] Family Report, par 103
[65] Family Report, par 104
The circumstances in which the eldest child made her statements to various persons tend to enhance her credibility. The following considerations are influential in reaching that conclusion:
a)The child’s disclosure to the mother on 1 January 2010 was not drawn from her, but volunteered some little while after she had pondered an earlier discussion between them about the privacy of genitals. The delay in the child’s disclosure to the mother is adequately and convincingly explained by the child’s apparent understanding that the issue was furtive and sensitive.
b)The child’s reluctance to participate in the JIRT interviews and counselling is consistent with that attitude. The Family Consultant, whose evidence I accept, agreed that there could be several different explanations for the child’s reluctance, but said the most likely explanation for it was that the child experienced a traumatic event and was embarrassed to discuss it.
c)The child was angry with the mother for divulging her secret about the father and refused to identify the father as the person who kissed her on the abdomen until the second JIRT interview. That is also consistent with her attitude of reluctance. The child was sufficiently worried by the issue that she associated breach of the agreed secrecy with possible punishment by imprisonment. The Family Consultant regarded the attribution of secrecy to the event as indicative of its occurrence, and was utterly dismissive of the father’s explanation that the secret was his reluctant and secretive revelation to the eldest child that he blamed the maternal grandmother for the breakdown of the marriage.[66] The Family Consultant thought that an implausible explanation because the father was so openly hostile to and critical of the maternal grandmother, and in any event, that explanation did not explain why the youngest child also perceived that she kept a secret with the father.
d)The child’s disclosures between December 2009 and April 2010 concerning the father’s conversation about “doodles” and “boobies”, horseplay with his penis, and showering with the children alerted the mother to the occurrence of unguarded interaction with ambiguous sexual connotation between the father and the children. Inferentially, that was the child’s intention. She was worried about it and wanted the mother to know of it.
e)The child’s final disclosure to the counsellor on 19 April 2010 was instigated by the child rather than the counsellor, and the child’s repeated sentiment of not wishing to recall the incident resonates with reality. The Family Consultant also considered that to be an indication of the sincerity of the child’s account. In addition, the Family Consultant regarded it as noteworthy and convincing that the information divulged by the child to the counsellor was more detailed than that revealed to the mother, so the child did not appear to be regurgitating a rehearsed story. The child even corrected the counsellor’s notes to ensure accuracy, indicating that she well understood the seriousness of her report.
f)The child had a complete change of heart once she finally revealed her secret to a person other than the mother, in contravention of the promise she made to the father, as if she was then relieved of an intolerable burden. After the counselling session on 19 April 2010 the child seemed to the counsellor to be much more relaxed with her than she had been in the past.[67] In fact, far from being resistant to counselling as she had been before, the child expressed a fervent desire to the Family Consultant[68] to resume her counselling sessions after the course of counselling had been terminated by interim order made on 9 July 2010.
[66] Family Report, par 84; Father’s affidavit, par 5.80
[67] Exhibit ICL9
[68] Family Report, par 101
On balance, I accept that the statements made by the eldest child about her interaction with the father were both accurate and truthful.
It is not possible to be similarly satisfied about the integrity of the statements made by the youngest child to the mother, JIRT officers, and the counsellor. She is considerably younger and does not present as reliably as the eldest child. The youngest child made no concerning disclosure about the father until April 2010, by which time she had been immersed in an atmosphere of anxiety within the mother’s home for several months. The revelation of the youngest child in March 2010 about showering with the father is relatively innocuous. Many parents of both genders shower with very young children. That statement could only evoke anxiety in the mother as a consequence of other statements made to her by the eldest child. The revelation of the youngest child in April 2010 about touching the father’s penis was tested in a JIRT interview and found wanting for accuracy.[69] The later revelation of the youngest child in May 2010 about the eldest child eating the father’s penis seems quite fanciful, particularly in the face of the eldest child’s sobbing denial.
[69] Exhibit ICL12
It would be a mistake to permit the unreliability of the youngest child to infect conclusions about the reliability of the eldest child. The reliability of the children as historians should be assessed individually.
The father denied any sexual impropriety with either child, which evidence is consistent with his denials to JIRT officers and the Family Consultant. However, the father was an unreliable witness. His evidence was proven inaccurate in many instances, and probably untruthful in some instances. To the extent that the father’s evidence conflicts with the statements made by the eldest child, I accept the eldest child’s statements in preference.
It follows from those conclusions that, on the balance of probabilities, the father kissed the eldest child on her body at a point which was indecently close to her genitals at some time shortly before 1 January 2010. The eldest child’s gesticulations that the anatomical point of the kiss was just above her genitals, and well below her navel, were consistently made to the mother, JIRT officers, and the counsellor. Although the child told the mother she was kissed by the father “on the peachy”, that description was defined broadly enough by both the child and mother to incorporate the pubic region of the child’s body. Even though the kiss was not planted directly on the child’s genitals, and the act may not have amounted to a criminal offence, it was still imbued with a strong sense of immorality.
I do not accept the father’s protestations that his kiss was planted on the child’s stomach, or “belly” as he described it. The area was likely more pelvic. Nor do I accept that it only occurred as or part of innocent horseplay. The child was too disturbed by the incident for it to be passed off innocently. She chastised the father not to do it to her again. The father must also have considered that his behaviour transcended the boundary of decency because he exhorted the child to keep the incident a secret and extracted a promise from her to do so.
Although that is the only frank act of indecency physically inflicted by the father upon the eldest child, it did not occur in a vacuum. The atmosphere created in the home of the father was one of ambiguous sexual boundaries. The father talked openly with the eldest child about “boobies”, comparing her breasts to those of the mother, and of the mother grabbing him on the “doodle”. The father also engaged the child in an adult conversation, likening kissing her to kissing the mother, and instructing the child to report that conversation to the mother. The father was indiscreet about his nudity, allowing the children to see his penis, even flaunting it in a playful way in their presence. He also showered with the eldest child, despite her being old enough to shower alone and wash herself competently.
The Family Consultant also observed the father to be ignorant of, or uncaring about, observing physical boundaries with the children. Prior to the observation session the Family Consultant cautioned the father about the children’s trepidation, since they had not seen him for some months and were anxious. Despite that advice imploring his tenderness, the father immediately exerted physical dominance over the children when they hid from him at the commencement of the observation session by pursuing them and carrying the youngest child out from the hiding place.[70] During the session he could not resist his desire for physical intimacy with both children, despite them both being somewhat reluctant to reciprocate.[71] He even pulled the eldest child onto his lap, restrained her attempted escape from him and whispered conspiratorially in her ear.[72] At the conclusion of the session the father expected kisses from the children and repeated his instructions for them to telephone him.[73]
[70] Family Report, par 73
[71] Family Report, par 75
[72] Family Report, par 77
[73] Family Report, par 77
The children are still quite young and immature. The father’s uninhibited verbal and physical interaction with them is unlikely to abate as they mature. It is more likely to increase, particularly if the father views them as more adult-like and able to tolerate an escalation of such treatment. That is the father’s manner. His relationship with the mother is similarly characterised by his unwanted attention. His comments are sexually suggestive and he invades the mother’s personal space, often touching her body on the bottom, breast, and arm.
The Family Consultant formed the opinion that the father posed an unacceptable risk of sexual abuse to the children. The mother made an identical submission, relying upon both the opinion of the Family Consultant and the inferences objectively demanded by the evidence.
Conversely, the father implicitly, and Independent Children’s Lawyer expressly, both submitted that the father did not pose any unacceptable risk of sexual abuse to the children.
In assessing the evidence and those submissions I have had regard for the principles established by the High Court and Full Court of the Family Court (see M & M (1988) 166 CLR 69 at 76-77; In the Marriage of B and B (1993) FLC 92-357 at 79,778; WK v SR (1997) FLC 92-787 at 84,694; Re W (Sex abuse: standard of proof) (2004) FLC 93-192 at 79,217-79,218; W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,910; Napier & Hepburn (2006) FLC 93-303 at 81,114 - 81,117; Potter & Potter (2007) FLC 93-326 at 81,636-81,637). I have also had regard for the standard of proof imposed by the Evidence Act 1995 (Cth) (s 140).
I am satisfied that the father does pose an unacceptable risk of sexual abuse to the children, against which they must be protected.
Such a conclusion is reached without reliance upon the evidence of the eldest child’s masturbation. As was pointed out by the Independent Children’s Lawyer, such behaviour is capable of being construed more benignly as simply scratching or manipulation of the genitals, rather than intended sexual gratification. Even allowing for the behaviour being genuine masturbation, there is no evidence at all to link that behaviour to sexual abuse of the child by the father. The suspicions of the mother and maternal grandmother about a link are pure speculation. There could be various causes for such behaviour.
Similarly, the conclusion about the existence of an unacceptable risk of sexual abuse is reached without reliance upon the evidence of the eldest child licking the mother on the arm on 17 March 2010. In the numerous reports made by the child about the physical contact between the father’s mouth and her abdomen the child used the description of a “kiss” rather than a “lick”. By March 2010 the mother construed any action or statement of the eldest child through a prism of deep suspicion. It would be highly speculative to conclude that the father had lasciviously licked the child’s body with sexual intent at any time, even though the child started spelling a word with the letters “L” and “I” during her conversation about the father with the counsellor on 19 April 2010.
Children’s best interests – primary considerations
As the Full Court said in A v A (1998) FLC 92-800 (at 84,996 – 84,997), it is an entirely artificial exercise to carry out an analysis of the statutory factors affecting a child’s best interests in isolation from the conclusions reached about the existence of an unacceptable risk of abuse to the children. To do so would sideline the major factor in the case. I therefore bear in mind the findings already reached when reviewing the criteria under s 60CC of the Act.
Section 60CC(2)(a)
The children certainly have meaningful relationships with the mother. That was the opinion of the Family Consultant,[74] and was conceded by the father in cross examination. Those relationships need to be preserved.
[74] Family Report, pars 107, 117
The children’s relationships with the father are much more complicated. The children interacted with the father in an observation session conducted by the Family Consultant on 24 August 2010, which was more than 4 months after the children had last seen the father in April 2010. The eldest child was plainly anxious about seeing the father,[75] as was the youngest child.[76] The children initially hid from the father,[77] and the youngest child requested her security blanket.[78] Both children distanced themselves from the father despite being compelled by the father to interact with him.[79]
[75] Family Report, pars 96-98, 100
[76] Family Report, par 109
[77] Family Report, par 73
[78] Family Report, pars 74, 115
[79] Family Report, pars 75-77
The children’s behaviour on that day was consistent with at least the eldest child’s private comments to the Family Consultant. The eldest child said she was not missing the father and did not wish to see him. In a card playing exercise conducted by the Family Consultant the child ostracised the father.[80] The youngest child was not invited to express any view because she was easily distracted and deemed insufficiently mature to do so.[81]
[80] Family Report, pars 100-101
[81] Family Report, pars 110, 113
The Family Consultant concluded that the eldest child’s relationship with the father had deteriorated.[82] Although the Family Consultant found the youngest child more relaxed and friendly towards the father than the eldest child,[83] the youngest child showed no excitement about seeing the father, or distress at separation from him.[84]
[82] Family Report, par 105
[83] Family Report, par 114
[84] Family Report, pars 112, 116
The Family Consultant was not challenged about any of those observations or opinions, and I accept them as correct.
The father conceded to the Family Consultant that the children had been “a little bit standoffish” with him, but attributed that attitude to the absence of interaction between them over preceding months.[85]
[85] Family Report, par 79
The inference is irresistible that the eldest child’s relationship with the father has deteriorated, and that the youngest child’s relationship with the father has also deteriorated, albeit to a lesser extent.
The current situation should be contrasted with the past, when the children did have strong, loving relationships with the father. That was the belief of the father,[86] which was corroborated by the Family Consultant who compiled the Family Report for use in the prior proceedings between the parties in 2008.[87]
[86] Father’s affidavit, par 20 of Annexure A
[87] Father’s affidavit, pars 40, 45-47, 51-52, 59 of Annexure A
Although the children’s current relationships with the father may not be as meaningful as they once were, the important consideration is whether the children will benefit from having meaningful relationships with the father in the future (see McCall v Clark (2009) FLC 93-405 at 83,475-83-476). The answer to that question is necessarily linked to the explanation for why the children’s relationships with the father have deteriorated.
There can be little doubt that the deterioration is caused by the events which have transpired since late 2009. Between late 2009 and April 2010 the father conducted himself, by word and deed, with the children in a manner which disturbed the eldest child. Her revelations to the mother and authorities caused the mother to form a belief that the father posed an unacceptable risk of sexual abuse to both children. The mother’s attitude that the father is dangerous has since permeated her household. The children have undoubtedly been influenced by the emotional atmosphere within the mother’s home, which is adverse to the father. The anxiety of the mother, maternal grandmother, and children about the risk posed by the father is mutually compounding.
Once the mother formed the belief about the risk posed by the father, her anxiety caused her to telephone the children every day whilst they were in his care. The mother admitted that she did so because she was anxious about their safety whilst with the father. When the mother acted to sever interaction between the children and the father in April 2010 she arranged for the children’s counsellor to attend the home and explain to them that they were moving away from their home so that they would be safe. The mother conceded that the children, and particularly the eldest child, would necessarily have inferred that the mother believed that they were unsafe in the care of the father, even if she did not say so directly.
The father harbours a belief that the mother has deliberately aligned the children with her against him. His belief, although honestly held, is not factually based. There are numerous examples of the mother supporting the relationships between the children and the father. In August 2008 the mother encouraged the father to attend events at the children’s school,[88] even though she had been the subject of considerable recent harassment from the father, which resulted in his conviction and imprisonment. In November 2008 the mother agreed to parenting orders which provided for expansive interaction between the children and the father, despite her misgivings about the father’s behaviour. There is no evidence of the mother thwarting the relationships between the children and the father until the eldest child’s revelations in early 2010, and even then the mother complied with the orders of November 2008 until advised against it in April 2010.
[88] Father’s affidavit, Annexure B
The Family Consultant considered that the mother had not attempted to influence the children against the father, but had merely acted protectively towards them.[89] I accept that opinion as correct. It would have been surprising if the mother had not acted protectively towards the children in the face of her vindicated belief that the father poses an unacceptable risk of sexual abuse to them.
[89] Family Report, par 136
The High Court has recognised as self-evidently true that, apart from cases of abusive relationships, children benefit from the development of good relationships with both parents (see U v U (2002) 211 CLR 238 at 285-286). That truism is underpinned by provisions of the Act. However, given the finding of an unacceptable risk of sexual abuse, the benefit to the children of enjoying meaningful relationships with the father in the future must yield to the need for their protection from the existent risk he poses.
Section 60CC(2)(b)
The finding about the need to protect the children from psychological harm caused by their subjection or exposure to sexual abuse has already been comprehensively addressed. There is no need for elaboration.
No submission was made about the need to protect the children from any harm that might result from exposure to neglect.
The mother adduced an abundance of evidence and made lengthy submissions about the risk of the father perpetrating family violence upon her, but that evidence and those submissions were not linked back in any cogent way with the need to protect the children from psychological harm through exposure to such conduct. Consequently, that issue will be discussed as an additional consideration under s 60CC(3)(j) of the Act.
Children’s best interests – additional considerations
Section 60CC(3)(a)
The eldest child made statements and affected an attitude which suggests that she does not wish to see the father.[90] It seems as though she feels some degree of pressure to make her views explicit, to which pressure she is resistant. She does not want that burden.[91] Her resistance to perceived pressure demonstrates a deal of maturity for a child her age, but she is still too immature for her views to carry any weight in the outcome of the case. Neither the parties nor the Independent Children’s Lawyer argued otherwise.
[90] Family Report, pars 96-101
[91] Family Report, par 102
The youngest child did not express any views voluntarily, and they were not sought by the Family Consultant.
Section 60CC(3)(b)
The nature of the children’s relationships with the parties has already been considered pursuant to s 60CC(2)(a) of the Act. There is nothing to add.
As with the father, the children’s relationships with the paternal grandmother are either strained or distant.[92]
[92] Family Report, pars 106, 115
As with the mother, the children’s relationships with the maternal grandmother are warm and loving.[93]
[93] Family Report, pars 107, 117
The children have a very close relationship with one another.[94]
[94] Family Report, pars 73, 107, 114
Sections 60CC(3)(c), (4)
Contrary to the father’s belief, for reasons already addressed, I am satisfied that the mother was previously prepared to facilitate and encourage close and continuing relationships between the children and the father. Her willingness and ability to do so ceased upon her formation of an honest belief, in early 2010, that the father posed an unacceptable risk of sexual abuse to the children. Her current opposition to the children spending time with the father is not susceptible to criticism in light of the finding that her belief is well-founded.
The mother’s secretive relocation with the children from the mid north coast of NSW to the area of Newcastle, NSW ought not be seen as an intentional attempt to destroy the relationships between the children and the father, but rather as a protective measure to avoid the father exacting revenge upon the mother for her intransigence by assaulting her or abducting the children. I accept the relocation was a reaction by the mother to her genuine fears about the father’s reaction, rather than an integral part of a plan to destroy the children’s relationships with the father. The mother acted on advice from the children’s counsellor, the police, and her solicitor to move away from the mid north coast of NSW.
The same may be said of the mother’s current plan to relocate with the children to Western Australia. I accept her evidence that the plan was not conceived until about March 2010, when the maternal grandparents decided to permanently establish their residence there and invited the mother and children to live with them. The father admitted in cross examination that he contemplated moving to Western Australia himself at that time to search for employment, but later decided against it because he did not wish to leave the children behind in NSW. The father’s contemplation of a permanent move to Western Australia caused the mother to consider the same option. The mother’s plan to move with the children to Western Australia was not an integral part of any plan to destroy the children’s relationships with the father. By July 2010 the mother had formed a definite intention to relocate and was impatient for these proceedings to conclude so that she could depart.[95]
[95] Exhibit ICL1
There is no doubt the father is willing and able to facilitate and encourage close and continuing relationships between the children and the mother. His assessment of the mother as a parent is glowing, apart from his criticism of her opinion about the risk he poses to the children. Even now the father contends that the children must continue living with the mother, manifesting his recognition that the valuable relationships between the children and mother must be preserved.
Section 60CC(3)(d)
The orders broadly represent retention of the living arrangement that has now existed since April 2010, with the children living with the mother and not interacting with the father. The children have adapted to that arrangement.
The children’s separation from the father will continue, punctuated only by an annual supervised visit with the father, and so the children are not required to adapt to any further significant changes.
Section 60CC(3)(e)
The orders provide for the children to see the father once annually. It is the mother’s expressed desire to relocate with the children to Western Australia. She will be able to do so through exercise of her sole parental responsibility for the children, provided she complies with the order which requires the children to spend time with the father periodically.
If the mother chooses to live in a geographically distant place and the father remains living on the mid north coast of NSW then there will be considerable practical difficulty and expense in ensuring that the children spend time with the father in accordance with the orders. The mother will primarily bear the expense of implementing the orders. She is the one with control over where the children reside, and I impute that her financial resources are superior to those of the father. Although the mother is not gainfully employed, she apparently has some financial support from the maternal grandparents. The father is unemployed and in receipt of a Centrelink benefit. He was not legally represented at the trial and is without any obvious financial support from the paternal family.
Section 60CC(3)(f)
The mother has been the primary carer for both children from the time of their respective births. She has been their sole carer since she took steps to sever their interaction with the father in April 2010. There is no doubt she has the capacity to provide for all the needs of the children, including their physical, emotional, and intellectual needs.
The father’s parenting capacity does not match the mother’s. He is really untested as an unassisted parent. The time spent by the children with him after separation in May 2007 up until April 2010 invariably occurred in the presence of other members of the paternal family, and in particular the paternal grandmother.
Self-evidently, the father cannot adequately provide for the children’s emotional needs if he presents a risk to their sexual safety.
Section 60CC(3)(g)
The father made no criticism of any aspect of the mother’s maturity, sex, lifestyle, or background, whereas the mother made several criticisms of the father on that score.
The mother asserts that the father continues to use illicit drugs and that he remains afflicted by some form of psychological disorder, but her assertions are unfounded on the evidence.
The father admits he was dependent upon numerous illicit drugs in the past, but denies current use.[96] In cross examination the father said he ceased use of both cannabis and amphetamines some time in 2007. There is no evidence to contradict the father. In recent times the father has been bound by an order requiring his submission to random urinalysis.[97] The father complied with that order and the results of his urinalysis were negative for all illicit drugs.[98] When the parties previously agreed upon parenting orders in November 2008 those orders required the father to undertake monthly drug screens for the following year.[99] The mother adduced no evidence of either the father’s failure to comply, or a positive result following compliance. Consequently, I am not satisfied the father is still using illicit drugs.
[96] Father’s affidavit, pars 39-40
[97] Order 5 made on 6 September 2010
[98] Father’s affidavit, Annexures C, D
[99] Orders 14-15 made on 18 November 2008
The father previously experienced such stress in his life that he felt the need to voluntarily admit himself to hospital for treatment. That occurred on two occasions shortly before the parties finally separated in May 2007. The admissions occurred on 25 December 2006 and 19 March 2007[100], with each admission lasting for several days. The father admitted to heavy use of illicit drugs, depression, and even suicidal ideation at that time.
[100] Exhibit M6
More recently, between August 2008 and June 2010, the father sought counselling from a psychologist, Dr S.[101] That psychologist wrote reports about the father to the father’s solicitors in both the previous proceedings in 2008[102] and the current proceedings.[103] In both reports the psychologist reported that the father did not display any mannerisms that betrayed a mental condition or personality disorder. At least one test was administered to the father, from which the psychologist opined that the father had no measurable or discernable psychiatric illnesses or conditions. The reports are strongly supportive of the father, which might be expected when prepared by a treating therapist.
[101] Exhibit M5
[102] Exhibit M11
[103] Exhibit ICL11
The Family Consultant, who is also a psychologist, noted that the test administered by Dr S to the father was a self-reporting test and the results were not objectively verifiable. The Family Consultant was open-minded about the father being afflicted by some form of psychiatric or psychological condition, but did not feel equipped to offer a reliable diagnosis.[104]
[104] Family Report, pars 124-126
I repose more weight in the evidence of the Family Consultant than the untested opinions of Dr S, but even so, there is no evidence that the father presently suffers from any psychiatric or psychological condition. The evidence rises no higher than that he might have such a condition, particularly in light of the emotional troubles he experienced in late 2006 and early 2007.
Any residual concern that the father may have some form of psychological affectation has no influence on the orders made by the Court.
Section 60CC(3)(h)
Neither the children nor the parties identify as Indigenous Australian.
Sections 60CC(3)(i), (4)
The mother displays a proper attitude to the children and the responsibilities of parenthood in all respects. It was only in respect of the sexual abuse allegation against him that the father was critical of the mother’s attitude. The allegation is objectively valid, and so the father’s criticism of the mother is unmeritorious.
It follows from the circumstances of the finding that the father does pose an unacceptable risk of sexual abuse to the children that he does not display a proper attitude to the children and the responsibilities of parenthood. The father fails to appreciate the impropriety of engaging the children in sexualised conversations about the mother or sexual organs. He also fails to appreciate particularly the eldest child’s sense of privacy about her body.
The father’s deficient attitude is also manifest in his financial contribution to the maintenance of the children. The parties have been separated for well in excess of 3 years. The father asserts that in that time he has paid child support of approximately $4,000 to the mother.[105] However, in cross examination the father admitted that some of those funds were given to the mother to meet matrimonial liabilities, which would have diminished the amount attributable to child support. I accept the evidence of the mother that she has received an amount of no more than $3,000 from the father towards child support since separation. The father admits that he last provided the mother with child support about a year ago and that currently there is a child support assessment of nil,[106] despite his admission that he has a working capacity.
[105] Father’s affidavit, par 27
[106] Family Report, par 49
Although the father may be unemployed and in receipt of a Centrelink benefit, his financial assistance to the mother for the care of the children is unsatisfactory. The father does not make appropriate use of his resources. In December 2009 he gave a sky-diving voucher worth $300 to the mother as a Christmas gift, which demonstrates a lamentable attitude to his responsibility to assist in financially supporting the children.
The father has also demonstrated an impaired parental attitude by allowing his emotions about the mother and maternal grandmother to spill into the lives of the children in a way that is emotionally injurious to them. He admits having told the eldest child that he holds the maternal grandmother responsible for the breakdown of the marriage.[107] The father also admitted in cross examination that he told the children, only a few months ago, that he is angry with the mother merely “for breathing”.[108] Although the father now asserts he understands how damaging it was for him to place the children in a position of conflicted loyalty in that way, his concession was not particularly convincing.
[107] Family Report, par 84
[108] Mother’s affidavit, par 129
Section 60CC(3)(j)
The mother devoted considerable time and energy in the proceedings to prove that the father was a violent and abusive man who posed a continuing threat of family violence to her. A large proportion of the evidence adduced by the mother related to incidents which occurred before the parties reached agreement about proper parenting orders to conclude the last proceedings in November 2008.
It is clear from the terms of the orders made in November 2008 that the mother still harboured concerns about the father at the time those orders were made. She demanded sole parental responsibility for the children,[109] that for a period of months the children’s time with the father be superintended by members of the paternal family,[110] that there be restriction upon the parties’ interaction at changeovers,[111] and that the children’s expenditure of time with the father be conditional upon the father continuing to prove his abstinence from illicit drugs.[112] All of those demands were agreed by the father.
[109] Order 2 made on 18 November 2008
[110] Order 4 made on 18 November 2008
[111] Order 7 made on 18 November 2008
[112] Orders 14-17 made on 18 November 2008
The mother implies that her agreement to those orders was coerced,[113] but I do not accept that evidence. The mother was legally represented at the time, received advice about her prospects, and chose to compromise the dispute in the manner outlined, even if her consent was given reluctantly or grudgingly. Like any litigant, the mother was faced with a choice of pressing on with the litigation or settling the dispute. She voluntarily chose settlement.
[113] Mother’s affidavit, pars 279-280; Family Report, pars 45, 48
At the time the mother chose to settle the last proceedings in November 2008, she was cognisant of all her grievances against the father for his commission of family violence upon and towards her. The Court is now invited to consider afresh the parenting orders that best address the children’s best interests. Although the events of family violence antecedent to the last orders remain relevant, the significance of that evidence is diluted by the mother’s decision to adopt those orders as the arrangement which was then in the best interests of the children, despite that history of family violence.
There can really be no dispute that the father did act violently and abusively towards the mother, even though I am left with an impression that the mother did tend to embellish the potency of the violence. The mother’s concession to the Family Consultant in 2008 that the father had only hurt her “once in a blue moon” and was more frightening by reason of his mood swings,[114] presents a less serious version of family violence than the one given by her in these proceedings.[115]
[114] Father’s affidavit, par 30 of Annexure A
[115] Mother’s affidavit, pars 24-76
However, the father’s bold assertion that he was never violent to the mother at all[116] is patently false. Numerous incidents of violence and oppression occurred, about which the mother is often corroborated.
[116] Father’s affidavit, par 5.5, 5.6, 5.145, 48, 65
When the mother was pregnant with the eldest child the father threw a clothes basket at her while swearing and verbally abusing her.[117] In cross examination, the father denied throwing the clothes basket, but admitted breaking the telephone. Inferentially, he did not deny the occurrence of a hostile confrontation between them in which he was the primary aggressor.
[117] Mother’s affidavit, par 42
When the eldest child was only a baby the father grabbed and pushed the mother, causing bruising to her arm, while stating “I’d love to punch the hell out of you”.[118] The mother was not challenged about the accuracy of that account.
[118] Mother’s affidavit, par 43
In October 2006 the father hit the mother and blackened her eye.[119] The father admitted causing the black eye to the mother in a telephone conversation he had with her in December 2009, and admitted the truth of that conversation in cross examination.
[119] Mother’s affidavit, par 54
In March 2007 the father deliberately drove the car containing him and the mother erratically, causing the mother to fear for her safety. Upon their arrival home he threatened to make the mother watch him die through his ingestion of medication. The mother left the house and went to the car. The father approached the car with a hammer, threatened to hit the mother in the face with the hammer, and then smashed the hammer into the cabin pillar of the car. As the mother drove away, the father threw large rocks at the car.[120] The mother drove directly to the maternal grandmother’s home. The maternal grandmother confirms the mother was hysterical on arrival. The father’s denial of only selected parts of that story was unconvincing.
[120] Mother’s affidavit, pars 38, 59
In April 2007 the father intentionally inflicted knife wounds to his abdomen in the near presence of the mother and her relatives. Although the mutilation was not witnessed directly, the mother and her relatives saw the blood immediately afterwards, and the mother later saw the injuries.[121] The father denies that he harmed himself or that he now has any abdominal scarring.[122] I prefer the mother’s evidence about the incident, even if he has no scarring.
[121] Mother’s affidavit, par 62
[122] Father’s affidavit, par 53
Upon separation in May 2007 the mother approached the police and made a statement collating her complaints against the father at that time.[123] A family violence order was made against the father in favour of the mother at the New South Wales Local Court on 28 May 2007 for a period of two years on the strength of that evidence.
[123] Mother’s affidavit, Annexure D
The family violence order did not deter the father from his harassment of the mother. In late 2007 the father was charged with some 20 separate offences of contravening the family violence order, for which he was convicted and sentenced to imprisonment for several months.[124] The father was taken into custody on 21 January 2008, and he asserts that he was released from custody in early May 2008.
[124] Exhibit M8
Those offences comprised various forms of conduct towards the mother. Some were instances of telephonic contact, but some amounted to actual physical assault of the mother and obscene exposure of his penis to her.[125] The father now denies some of the offences to which he entered pleas of guilty,[126] but I do not accept his evidence. His pleas of guilty, on legal advice, constituted public acknowledgement of his consciousness of guilt. To now disavow his admission smacks of deceit at worst and lack of contrition at best, particularly when the father was compelled to admit in cross examination that the evidence in his current affidavit in relation to those events is contradictory to evidence about the same issue he previously gave in an affidavit filed in September 2008.
[125] Exhibit M10
[126] Father’s affidavit, pars 43-47
Not even the convictions and sentences in February 2008 persuaded the father to desist from his harassment of the mother. Whilst in custody the father continued to contact the mother in breach of the family violence order. He said in cross examination that he was unable to resist doing so because he loved her. He was accordingly charged with further offences of contravening the family violence order, for which he was convicted and sentenced in July 2008 by being placed on concurrent good behaviour bonds for a period of 3 years.[127]
[127] Exhibit M8
Further complaints made by the mother to police in August 2008[128] and October 2008[129] about the father’s alleged breaches of the family violence order failed to prompt the police to prosecute the father again.
[128] Mother’s affidavit, Annexure E
[129] Mother’s affidavit, Annexure F
The father was regularly abusive to the mother, often in the presence of the children, calling her disgraceful names like “fat arse”, “dog”, “bitch”, and “cunt face”.[130] The father admitted in cross examination calling the mother those names, despite giving inconsistent evidence in an earlier affidavit filed in September 2008. However, the father denied that he used that language in the presence of the children. I prefer the mother’s evidence.
[130] Mother’s affidavit, par 34
Against that background, the mother reached agreement with the father about parenting orders for the children in November 2008.
The evidence of family violence after that time is more influential in the outcome of these proceedings, about which I prefer the evidence of the mother to the evidence of the father in the event of incompatibility.
The mother alleged that the father continued to contact her on an extraordinarily large number of occasions by mobile telephone text messages.[131] The father asserted in his affidavit that he did not recall doing so, but would call for the messages to be produced at the trial.[132] He did not need to do so. The mother produced and tendered them.[133] The exhibit corroborates the mother. The frequency and contents of the messages proves continuing breaches of the then existent family violence order by the father.
[131] Mother’s affidavit, pars 112-124
[132] Father’s affidavit, par 5.44-5.49
[133] Exhibit M4
Although the mother said in cross examination that she complained to the police at that time about the incessant text messages sent to her by the father, no further action was taken against the father. The mother, understandably, grew frustrated and disillusioned.
The mother tendered a pornographic magazine photo that she said the father sent home to her in the possession of the eldest child in 2009.[134] The father admits sending the photograph to the mother, but denies that he sent it in the possession of the eldest child. He asserts that he sent it to the mother by post from prison. It is really unnecessary to determine that factual dispute. It is enough to recognise that the father was either ignorant of or recklessly indifferent about the inappropriateness of that communication with the mother. If the father’s evidence is correct, then he necessarily admits another breach of the family violence order, because he was released from prison in May 2008 and the family violence order prevailed until May 2009.
[134] Exhibit M1; Mother’s affidavit, par 144
At a changeover in 2009 the father handed the mother a printed message which read “I [heart picture] my ex”, with the mother’s first name written in the father’s handwriting through the picture of the heart in the message.[135] The father admits that incident.
[135] Exhibit M2
On 1 July 2009 the father sent the mother a text message telling the mother, in part, “you will always be a [Hutchinson] and my property”.[136] The father admits that incident. He concedes that he was besotted with the mother and did not want her to establish a relationship with another man.
[136] Mother’s affidavit, par 120
In late 2009 the father took photographs of the mother and youngest child at school on his mobile telephone and later provided the photographs to the mother. The photographs are in evidence.[137] The father admitted doing so, but said he was innocently taking photos of the child. I do not accept that evidence. The photos reveal the mother to be the focal point of the photographs, consistently with the evidence of the mother.
[137] Exhibit M3
The father, in his telephone conversation with the mother in December 2009, continued to assert his possession of the mother, declaring to the mother “You’re mine”. The father admitted saying that.
In January 2010 the father told the mother over the telephone that he wanted to “tie her to the bed like a starfish” and that just hearing her voice was “making his dick hard”.[138] The father denied saying those things, but his denial was unconvincing.
[138] Mother’s affidavit, par 190
On or about Valentine’s Day in February 2010 the father sent a Valentine’s Day card to the mother declaring his love for her, saying that she was his only love. The father admitted sending the card containing those messages.
Since the orders were made in November 2008, in breach of those orders, and also in breach of the family violence order prior to its expiration in May 2009, the father usually interacted personally with the mother at changeovers. The injunction that the father not go within 100 metres of the mother was ignored by the father.[139] I reject the father’s explanation that he only did so by reason of an agreement with the mother to dispense with the injunction. The father inconsistently said he had an agreement with the mother to relax the injunction, but that it depended upon her mood on each occasion as to whether the injunction was relaxed. If the parties genuinely had an express agreement to dispense with the injunction then the mother’s mood at each changeover was irrelevant.
[139] Mother’s affidavit, pars 98-99
I also accept the evidence of the mother that the father frequently manhandled her at changeovers by touching her on the bottom, breast, and hand.[140] The mother was corroborated by the maternal grandmother.[141] The father denied it, but the paternal grandmother confirmed that she had seen the father touch the mother on the arm. Although the paternal grandmother did not see the father touch the mother on the bottom, breast, or hand, that does not mean it did not occur.
[140] Mother’s affidavit, pars 100-101
[141] Affidavit of the maternal grandmother, par 23
The mother alleged that the father occasionally exposed his penis to her and simulated masturbation at changeovers, making sexually suggestive remarks to her such as “just seeing you makes me hard”.[142]
[142] Mother’s affidavit, pars 71, 111
The mother alleged that the father occasionally acted towards her in the same sexually provocative manner at the children’s school.[143] Even as recently as March 2010 the mother reports that the father said to her “If I said you had a beautiful body would you hold it against me?” before kissing her on the cheek.[144] The father denied that incident. He also denied saying anything like that to the mother at any time. The father was then graphically contradicted with a letter he had written to the mother some time ago in which he said precisely those words to the mother.
[143] Mother’s affidavit, pars 107, 111; Family Report, par 45
[144] Mother’s affidavit, par 109
The father’s continuing harassment of the mother must be seen in the context of the father’s propensity to solve his problems with a violent remedy. He has several past convictions for serious assaults upon both men and women.[145] As recently as November 2008 the father fractured his hand when he punched a wall in anger during, or shortly after, an argument with his brother. He needed medical attention for the injury.[146]
[145] Exhibit M8
[146] Exhibit M9
The Family Consultant regarded the father’s behaviour towards the mother as an attempt to coercively control her.[147] I accept that assessment of his behaviour. The father either did not realise or did not care about the disturbing effect upon the mother of his overbearing and unwanted interaction with her.
[147] Family Report, par 121
“Family violence” has a wider definition in the Act than might be anticipated by litigants who are unfamiliar with the definition. The concept of “family violence” is defined in the Act (s 4(1)) to include conduct by the perpetrator that merely causes the victim to be actually and reasonably apprehensive about his or her personal wellbeing or safety. There is no requirement for the victim to be physically struck in order for the commission of family violence to be proven. Much of the father’s conduct towards the mother since the last orders were made in November 2008 falls within the embrace of that definition.
The father’s completion of an anger management course[148] was not an epiphany for him, given his continuing minimisation and lack of contrition about past events of violence.[149] The Family Consultant assessed that there is a high risk the father will continue to perpetrate family violence.[150]
[148] Father’s affidavit, par 30
[149] Family Report, pars 82, 118
[150] Family Report, pars 119-123
I accept that the father does continue to pose a risk of family violence to the mother. However, the level of the risk may now be more moderate given that the father was forced in cross examination to confront the harmful reality of his past behaviour towards the mother. Nonetheless, any recent modicum of insight attained by the father must be weighed against the evidence of his years of oppression and control of the mother. He will not easily throw off the shackles of that history because his attitude is so deeply ingrained in his psyche.
The Court is obliged to ensure that the orders it makes, to the extent that it is possible to do so consistently with the children’s best interests being the paramount consideration, do not expose a person to an unacceptable risk of family violence (s 60CG(1)(b)). That is an influential factor in persuading the Court to make orders minimising interaction between the parties.
Section 60CC(3)(k)
The family violence order obtained against the father in favour of the mother on 28 May 2007 for a period of two years expired on 28 May 2009.[151] It was not renewed.
[151] Exhibit M7
Section 60CC(3)(l)
The dispute between the parties was confined to whether, and the circumstances in which, the children spend time and communicate with the father. The narrowness of the scope of the contest minimises the prospect of further litigation between the parties, albeit that the father will certainly be disappointed with the orders made by the Court.
Since the orders closely represent the parenting regime that has existed for the last 8 months, and the orders vastly reduce the prospect for interaction between the parties, the orders are less likely than other more expansive orders to result in the institution of further proceedings in relation to the children.
Section 60CC(3)(m)
Neither the parties nor the Independent Children’s Lawyer submitted that there was any further fact or circumstance that was relevant to the outcome of the proceedings.
Parental responsibility
The presumption of equal shared parental responsibility does not apply, pursuant to application of s 61DA(2) of the Act. I find that the father perpetrated family violence upon the mother.
The allocation of parental responsibility for the children was not a live issue in the proceedings. The parties previously agreed in November 2008 that the mother should have sole parental responsibility for the children.[152] The father did not seek to disturb that order in the current proceedings. He simply wanted to revert to the operation of those orders. Nor did the Independent Children’s Lawyer propose any change in the allocation of parental responsibility. She advocated that it remain solely with the mother.[153]
[152] Order 2 made on 18 November 2008
[153] Exhibit ICL13, Order 3
The mother shall therefore continue to have sole parental responsibility for the children.
Living arrangements
In the absence of an order for equal shared parental responsibility the Court is not mandated to consider the alternatives of the children living for equal time with the parties, or living with one party and spending substantial and significant time with the other party. The Court is at large with respect to the children’s living arrangements.
The children should live with the mother because they have always done so. The father did not seek to reverse that arrangement, and the Independent Children’s Lawyer also acknowledged the necessity of that outcome.[154]
[154] Exhibit ICL13, Order 2
The critical issue in the case is whether the children should spend time and/or communicate with the father, and if so, the circumstances under which that should occur.
The mother desired a complete severance of the children’s interaction with the father. She proposed that they do not spend any time with him, even under restricted and supervised conditions, and that they not communicate with him. She desired that her residential address remain secret from the father.
The father proposed that the parties revert to compliance with the arrangements upon which they agreed in the last proceedings in November 2008, under which the children spent time with the father on weekends, on intervening nights, and during school holidays, and communicated with him by telephone twice per week.
Although in these proceedings the father was initially steadfastly opposed to the idea that any such time spent by the children with him should be supervised,[155] he changed his position in that regard. During evidence and submissions the father contended that he would abide by any order that re-introduced the children to him in a staged way, subject to an initial period of supervision.
[155] Family Report, par 83
The proposal of the Independent Children’s Lawyer[156] found mid ground between the polarised positions of the parties. She proposed that the children spend time with the father:
a)For an initial period of 12 months, supervised in a contact centre in NSW for a period of 2 hours, not more frequently than fortnightly and not less frequently than monthly; and
b)Thereafter, for unsupervised periods not exceeding 7 hours, with the same frequency, with changeovers to occur at a contact centre.
[156] Exhibit ICL13
The Independent Children’s Lawyer does not agree with the mother’s proposal to relocate with the children to Western Australia, because the mother would be unable to comply with the proposed orders if she did so.
The Independent Children’s Lawyer proposed that communication only occur between the children and the father in written form, and only at times proximate to their birthdays and at Christmas.
The factors of greatest weight in the determination of the appropriate parenting orders are the unacceptable risk of sexual abuse that the father poses to the children, the current deterioration in the quality of the children’s relationships with the father characterised by their apprehension of him, and the tangible risk of family violence that the father poses to the mother.
The children need to be protected from the risk posed to them by the father. That can only be achieved by either severing the personal relationships between them, for which the mother contends, or ensuring that their time together is supervised.
The proposal of the Independent Children’s Lawyer, to which the father acquiesces, for the supervision to be imposed for only a transitional period is untenable. There is no basis to conclude that the unacceptable risk of sexual abuse posed by the father to the children will abate upon expiration of a transitional period, irrespective of whether that period is measured in months or years. The imposition of supervision could only achieve its purpose of protection of the children if it was permanent.
The imposition of permanent supervision in circumstances where the children frequently spend time with the father causes obvious complications. For that reason the authorities establish that such an arrangement is undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40-41]; In the Marriage of B and B (supra) at 79,780).
I am not persuaded to make orders providing for the children to spend time with the father under permanent supervision with anything like the frequency contemplated by either the father or Independent Children’s Lawyer. Permanent supervision is an outcome that the father refuses to accept in any event. His agreement to even temporary supervision was reluctant.
Although the children’s relationships with the father have deteriorated to some extent, they have not been destroyed. In January 2010, despite the shock of the father having kissed her near to her genitals, the eldest child reported to authorities that she was not fearful of the father and missed him between visits. The reasons for the children’s more recent avoidance of the father in the observation sessions with the Family Consultant in August 2010 have already been addressed.
The children’s relationships with the father ought not be completely extinguished just because of the mother’s revulsion of the father. It may be that the children will wish to reinvigorate their relationships with the father when they have grown older and developed more maturity, independence, and confidence. That process will be facilitated if the children are able to preserve at least rudimentary relationships with the father until then. It will be easier to revive a dormant relationship than a dead one.
The most sensible way of protecting the children from harm, but maintaining their relationships with the father in rudimentary form, is to ensure a method by which the children may spend time with the father infrequently under supervised conditions, and by permitting restricted written communication between them.
Although the Family Consultant primarily recommended severance of the relationships between the children and the father,[157] she was prepared to countenance the prospect of the children maintaining supervised interaction with him on an annual basis.[158] The Family Consultant did not reject the Independent Children’s Lawyer’s alternate proposal that such interaction occur on a few occasions rather than once annually, but did not adopt that proposal in preference to her own recommendation.
[157] Family Report, par 139(I)
[158] Family Report, par 139(II)
The arrangement for the children to spend time with the father on one occasion per year under supervised conditions is generally consistent with the Independent Children’s Lawyer’s concession about a proper parenting arrangement in the event of a finding, contrary to her submission, that the father constitutes an unacceptable risk of sexual abuse to the children.
During final submissions, the mother submitted that she had no objection to an arrangement under which the children spent supervised time with the father irregularly at a contact centre, but expressed a preference for that to occur in Western Australia.
The orders require the mother to present the children at a contact centre in Newcastle, NSW once per year to spend supervised time with the father, unless the parties agree otherwise in writing. Although the parties both have plans about where they will live in the future, their decisions are not immutable. The mother may not go to, or remain living in, Western Australia and the father may not remain living on the mid north coast of NSW.
The expense of conveying the children to and from Newcastle for the purpose of compliance with the orders will be borne by the mother, for reasons already explained.
The orders are framed in such a way that the mother may choose to relocate with the children away from NSW. The Family Consultant favoured that outcome.[159] The mother proposed an order in her Amended Application, phrased in declaratory terms, soliciting the Court’s permission for her and the children to relocate their residence to Western Australia.[160] I do not regard an order framed in those terms to be a proper exercise of power, or alternatively, appropriate. An order in those terms is not a parenting order within the meaning of s 64B of the Act. Nor is it a mandatory or restrictive injunction under ss 68B or 114 of the Act.
[159] Family Report, pars 132-134
[160] Amended Application, Order 6
The only restriction upon the mother is the necessity for her to comply with the parenting orders. There is no reason why the mother should not take advantage of the support she receives from the maternal grandparents, who now live in Western Australia, by living with them. The best interests of the children dictate parenting orders that permit such an outcome.
The orders also provide for the children and father to communicate in writing. There is a restriction upon the frequency of such communication so as to prevent the mother and children being overborne by a barrage of letters, emails, or text messages, which has occurred in the past.[161] The order is more generous in frequency than that proposed by the Independent Children’s Lawyer and that recommended by the Family Consultant.[162]
[161] Family Report, par 86
[162] Exhibit ICL13, Orders 11-13; Family Report, par 139(III)
In order for that communication to occur it is necessary for the mother to divulge her residential address and contact details. Although I accept that the secrecy of those details to date has been necessary to abate the anxiety of the mother, that need has now reasonably passed. There is little evidence to support the mother’s fear that the father will attend her home uninvited. It happened once when the father left some food at the mother’s door, and the mother believes it happened on a few other occasions because she found some empty drink cans near her front boundary. That was quite some time ago, when the mother still lived in proximity to the father on the mid north coast of NSW. The mother no longer does and probably will not do so in the future. The risk of family violence posed to the mother is manifest in the father’s conduct towards her at changeovers and in personal communication with her, and the orders satisfactorily cater to and guard against that form of risk. Although it remains a possibility, there is no reasonable probability of the father attending the mother’s home unannounced to commit family violence.
There is no justification for the perpetual involvement of lawyers in the parties’ lives to pass correspondence between them, as suggested by the Family Consultant.[163] Nor is it necessary to use the paternal grandmother as a conduit between them, as the Independent Children’s Lawyer proposes.[164] The relationship between the mother and paternal grandmother is as conflicted as the relationship between the mother and the father. It could hardly be supposed that the paternal grandmother would keep secret from the father the address and contact details of the mother. Since the mother intends living with the maternal grandparents, it is pointless considering their address as a mailing address so as to permit the mother to retain the secrecy of her residence.
[163] Family Report, par 63
[164] Exhibit ICL13, Orders 9-10
Since the father will have very limited involvement in the remainder of the children’s childhood, he is entitled to thorough information about their medical and scholastic progress. The orders require the mother to permit the father to garner that information. The Independent Children’s Lawyer recognises the necessity for that.[165] However, unless the Independent Children’s Lawyer’s proposal literally means the father should be told only that a medical emergency has befallen one of the children and nothing else, her proposal seemingly fails to appreciate the practical reality that notification of the father of information such as the nature of the emergency, the treatment administered, the doctor attending the children, and the location of the treatment will necessarily furnish the father with details about the children’s location. The father will then be armed with information facilitating his identification of the residence and schools of the children. There is no compelling reason why the father should not know of those details at the outset.
[165] Exhibit ICL13, Order 14
I decline to order an injunction regulating the father’s behaviour towards the mother and children in accordance with the mother’s application.[166] The parties will very rarely have contact with one another, and only then at the designated contact centre, so the mother’s justified apprehension of the father will be ameliorated in any event. If the need improbably arises, the mother may seek a family violence order under the legislation of the State in which she resides. The father’s interaction with the children will be supervised in any event, so they will be safe.
[166] Amended Application, Orders 2-3
The mother sought an order permitting her to change the children’s surname should she desire to do so,[167] but there was no evidence and no submission addressed to that issue. In those circumstances, I decline to make the order sought by the mother. For the avoidance of doubt, an order is made to the effect that the children retain their existing surname so that the mother does not infer that she is at liberty to change the children’s surname as part of her sole parental responsibility for the children. Preservation of their surname is another way in which the children will preserve a link with the father and paternal family.
[167] Amended Application, Order 7
I decline to make an order compelling the father to undertake a post-separation parenting course, as proposed by the Independent Children’s Lawyer.[168] The father asserts having already completed a “Separated Father’s Course” of 8 weeks duration.[169] He has not demonstrated his receipt of any benefit from that course, and he will have no inclination to complete another course in the face of what he will perceive to be a heavy defeat in this litigation. Since the children will only see him once per year under supervised conditions, the father’s interaction with the children is unlikely to be materially assisted by his completion of a post-separation parenting course.
[168] Exhibit ICL13, Order 15
[169] Father’s affidavit, par 30
I decline to make orders compelling the provision of counselling to the children, as recommended by the Family Consultant.[170] That will be a matter for the mother in the exercise of her sole parental responsibility. The mother has followed advice in the past about the provision of counselling to the children and I expect she will continue to do so.
[170] Family Report, par 139(IV)
I decline to direct that the orders be furnished to the NSW Department of Human Services, as recommended by the Family Consultant.[171] That will be pointless if the mother makes good on her decision to relocate inter-state.
[171] Family Report, par 139(V)
For those reasons, the orders identified at the start of this judgment reflect the best interests of the children.
I certify that the preceding two hundred and twenty-nine (229) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 January 2011.
Associate:
Date: 28 January 2011
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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