Ibbot and Baumer (No 2) - [2019] FamCA 468

FAMILY COURT OF AUSTRALIA

IBBOT & BAUMER (NO. 2)

[2019] FamCA 468

FAMILY LAW – CHILDREN – Parenting – Where the parties have two children who are in the care of the mother and have not seen the father in a number of months – Where domestic violence and drug and alcohol use was a feature of the relationship between the parties on the part of both the mother and the father – Where there are allegations of sexual abuse by the father of the two children – Where it is not found that the sexual abuse did actually occur, but it is found that there is an unacceptable risk of harm occurring to the children in the father’s unsupervised care – Where the children are to live with the mother and the mother is to have sole parental responsibility for the long term welfare, care and development of the children, with provision for the father’s response to be sought before any such decision is made – Where the father is to spend supervised time with the children – Where the father’s alcohol consumption and how this effects his ability to care for the children is the source of dispute between the parties – Where the father is Ordered to engage in treatment to reduce his alcohol consumption.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshawv Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69; [1988] HCA 68
N & S & the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

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

APPLICANT:

Mr Ibbot

RESPONDENT:

Ms Baumer

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox

FILE NUMBER:

LEC

310

2016

DATE DELIVERED:

17 July 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

14, 15 and 16 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Boys

MPB Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

O'Reilly & Sochacki Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

That all previous parenting Orders be discharged.
That the children, X born … 2010 and Y born … 2013 (“the children”), shall live with the Mother.
That the Mother shall have sole parental responsibility for the children’s long term welfare care and development, PROVIDED THAT:
(a)prior to making a decision for either child pertaining to his/their long term welfare the Mother shall email the Father setting out the decision she wishes to make and the reasons for the decision and request the Father's response within 48 hours of the date of the email;
(b)the Father shall respond to the Mother's email within 48 hours of receiving the Mother's email setting out his agreement or providing an alternate proposal and the reasons for his proposal;
(c)the Mother shall thereafter give reasonable consideration to the Father’s proposal but if no agreement can be reached, the Mother shall make the final decision.
That the Mother shall advise the Father by way of email should either of the children require any emergency medical treatment.
That the children shall spend time with the Father at all times as may be agreed between the Mother and the Father, but failing agreement:
(a)supervised for a maximum of two (2) hours each alternate Saturday or on such other day as can be facilitated by a contact centre as nominated by the Father between Town B and Suburb C with the Father to pay the cost of such supervision;
(b)the Father shall complete all intake procedures with the contact centre and confirm with the Mother by way of email when he has completed the necessary procedures;
(c)the Mother shall complete her intake procedures with the contact centre within two (2) business days of receiving notice from the Father as provided for in Order 5(b);
(d)the Father shall confirm with the Mother by way of email by 6.00 pm (NSW time) on the evening before the scheduled visit at the contact centre that he will be attending the next day;
(e)telephone communication each Wednesday between 6.00 pm and 6.30 pm (NSW time) with the Mother to initiate the call to the Father.
That the Father be permitted to attend the children’s sports games (and any other sporting activities) and the Mother shall email the Father with a schedule of the children’s home games for the season within two (2) days of the schedule being released to her, but if there is no schedule released at the start of the season, the Mother shall email the Father with the fixture details and details of any other sporting events the boys are involved in, within a day of those fixture details becoming known to her.
That the Father's attendance as provided for in Order 6 herein is subject to and conditional upon:
(a)the Father not being under the influence of any amount of alcohol during any such attendance; and
(b)the Father not attempting to approach or engage with the Mother at any time during any such attendance.
That the Father shall engage in treatment as recommended by Dr A to reduce his alcohol use to a low risk level of intake and engage in psychological counselling to assist him in trying to change his future behaviors by obtaining a referral from his general practitioner to K SERVICE or an alcohol and drug addiction counsellor for a period of at least six (6) weeks.
That the Father shall provide the Mother with a report upon completion of his attendance as provided for in Order 8 confirming:
(a)his attendance;
(b)his completion of the program.
That pursuant to s 121 of the Family Law Act1975 (Cth) leave be granted to the Father to enable him to provide a copy of Dr A’s assessment to K SERVICE or a drug and alcohol addiction counsellor.
That within three (3) months of the date of commencing counselling as referred to in Order 8, the Father shall provide a CDT test to the Mother.
That three (3) months after providing the first CDT test to the Mother as required, the father shall provide the Mother with a further CDT test.
That upon the Father providing CDT testing which reflects a continued reduction in his alcohol consumption to low risk levels, the parties attend G Group with a view to entering into negotiations for further parenting orders for the children.
That the Mother shall arrange for the children to attend H Group, or such other organization as recommended by FaCS with regard to the children gaining an understanding of protective behaviors with regard to sexual abuse.
That neither parent shall denigrate the other to or in the presence or hearing of the children.
That the Mother and the Father shall keep each other apprised of their current email address and contact telephone numbers and advise of any change within 48 hours of such change.
That these Orders be sufficient authority for the Father to obtain copies of the children's school progress reports and school photographs at his expense.
That the Independent Children’s Lawyer be discharged.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

NOTATION:
A.It is noted that the Father is to engage in treatment as recommended by Dr A to reduce his alcohol use to a low risk level of intake and engage in psychological counselling to assist him in trying to change his future behaviors by obtaining a referral from his general practitioner to K SERVICE or a counsellor for a period of at least six (6) weeks.
B.That once the Father has participated in counselling as set out in Notation A the parties will attempt to negotiate parenting orders for the children which may reflect unsupervised time between the children and the Father.
C.That if the parties cannot negotiate parenting orders then the Father or the Mother may consider reapplying to the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ibbot & Baumer (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 310 of 2016

Mr Ibbot

Applicant

And

Ms Baumer

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The father and the mother in this matter met in or around 2007-2008. At that time, they each had children of previous relationships. They began a relationship with each other and started living together in or around 2009.
The mother’s three children of previous relationships (who were 16, 14 and 11 years old at the commencement of the cohabitation between the mother and the father) were living with the mother when the father moved in to their home. That home was owned by the mother. The father had no property of his own and was not spending any regular or consistent time with his son, who was around eight or nine years old at the time.
In 2010, the mother and father’s first child together was born. His name is X. When he was only six months old, the father spent several months in prison. Upon his release, later in 2011, the mother did not permit the father to move back into her home, though their relationship continued on an on-again/off-again basis until it ended completely in or around 2012-2013. Their second son, Y, was born in 2013, after their final separation.
In the years shortly after their separation, the mother would permit the father to spend time with the two little boys in her company. This did not satisfy the father’s desire to spend more time with them as he wanted to be able to do that away from the mother. They went through mediation at the Family Relationship Centre on a couple of occasions in 2014. Agreements reached at those did not hold. The mother said the father would just turn up at her home whenever he liked, wanting to see the boys.
Unsatisfied with the course of these events, the father accessed legal aid to assist them to reach an agreement about the children’s time with him. That happened, and in February 2015 the mother agreed to the boys spending each second weekend in their father’s care, conditioned on his providing the results of what are described as CDT tests (blood tests that indicate excessive alcohol consumption over a period of time) that demonstrated that his alcohol use was not excessive. She said that she considered he had a real problem with his alcohol consumption.
The mother said that she would only allow the boys to go and spend overnight time with the father after this time when she was satisfied that he was making an effort to remain sober and focused on the children. She said this resulted in him only having the boys for two overnight occasions in 2015 before she actually stopped them going for overnight visits again in May 2015 after the father stopped meeting the CDT testing requirements.
The mother also said that in late April 2015 something happened that worried her. She saw the eldest boy try to grab the younger boy’s penis with the open mouth of a toy shark whilst she was showering the boys. She said that when she said words to the effect of “[w]e don’t grab private parts”, the eldest boy said words to the effect of “[o]nly dad does this”. She said that out of concern for what she had seen and heard she contacted J Group for guidance. She said that she was given reassurance that it was probably nothing to worry about and she did nothing more about it at that time.
Relations between the mother and father did not improve though. There were difficulties between them around Christmas time 2015 and the mother stopped time again for a while. Nevertheless, whatever concerns she had about the father’s capacities to care for the children for any period of time did not prevent her from leaving the boys in his care for a few days in February 2016 when she had to travel to Town F in New South Wales for a funeral.
Then, in or around April 2016, the mother says, X again told her that the father had touched his genitals on an occasion when the boys were in his sole care. The mother this time considered this was evidence of inappropriate behaviour on the part of the father. She reported it to the New South Wales Police and to the New South Wales Department of Family and Community Services. The boy was interviewed in a recorded interview. He did tell the police that his father had been touching him and his brother on their genitals. The father was not charged with a criminal offence related to that. Nevertheless, the mother withheld the children from spending time with the father and the father soon commenced proceedings in the Federal Circuit Court seeking parenting Orders that permitted the boys to spend time with him. The children’s time with the father was supervised, pursuant to interim Orders, from that time.
The matter was transferred to this Court and found its way into the Magellan list of matters. It was heard by me over three days in mid-November 2018.
The mother was represented by a solicitor and counsel. The father was represented by a solicitor and there was an Independent Children’s Lawyer (“the ICL”) who was also represented by counsel.
I learned at trial that the father’s supervised time with the children had stopped in August 2018 as the supervisor, a friend of the mother’s who volunteered her time, was no longer able to make herself available to be the supervisor. At the time of the trial, the father was not seeing the children at all. I expect that has been the case since the trial, as well.

What the parties want

The mother wants orders from the Court that give her sole parental responsibility for the two boys, that permit them to live with her and to only spend supervised time with their father at a children’s contact centre, necessarily limited (by the circumstances of availability and cost) to two hours each second weekend.
The ICL submitted, at the end of the three day trial, that the Court should make orders such as those sought by the mother. The ICL submitted that such orders were necessary to ensure the physical and emotional safety of the two little boys. The ICL’s submissions included acceptance of the need for the father to engage in ongoing counselling to address his excessive intake of alcohol and acknowledgment that if he did that, and his alcohol consumption reduced, that the time the children spend with him may be able to be reviewed at some point in the future.
The father began the trial with his solicitor representing to the Court that the father considered it in the best interests of the two boys to be moved from the principal care of their mother to live with him. That was apparently based on his perception that the mother has demonstrated incapacity to accept the need for the boys to have an ongoing, meaningful relationship with their father or to be able to facilitate the same. However, whilst he was giving evidence during the course of the trial, the father himself made it abundantly clear that he does not really want the boys to live with him but rather just wants them to be able to spend unsupervised time with him for the whole weekend, every second weekend.
Accordingly, the main issue for determination in this case is whether or not spending unsupervised weekends with the father would expose the two boys to an unacceptable risk of physical or emotional harm such that it should not be permitted. The mother and the ICL submit that it should not be permitted, therefore requiring any time the children spend with the father to be supervised. The father submits that the boys should be permitted to begin spending unsupervised weekend time with him again, asserting that they are at no risk of harm from him.

The evidence

Each of the mother and father gave evidence and was cross-examined.
A family report writer, who saw and assessed the family twice over the few years leading up to the trial, prepared two written reports and was cross-examined on those reports. A psychiatrist, very experienced in assessing parents involved in highly conflictual litigation in this Court, was cross-examined on the report he prepared after having seen each of them for the purposes of assessing their mental health. The woman, a friend of the mother’s, who had been selected by the father from a few persons nominated by the mother, and who had voluntarily supervised the children’s time with the father over many months in the lead up to the trial, gave evidence and was cross-examined about her observations and experiences on those supervised visits.
A woman, a friend of the father’s, also gave evidence and was cross-examined. The father proposed that if the children’s time with him is to be supervised at all, then this woman should be permitted to be the supervisor.
A video recording of the April 2016 interview between police and departmental officers and the boy, X (when he was five and a half years old), was played and viewed in Court and made an exhibit. I have watched it again in my Chambers in the course of writing these reasons.

The law to be applied

The Court is being asked to make a parenting Order in relation to the two subject children, X and Y. Pursuant to s 61D(1) of the Family Law Act 1975 (Cth) (“the Act”), a parenting Order confers parental responsibility for a child on a person, but only to the extent to which the Order confers on the person duties, powers, responsibilities or authority in relation to the child. Pursuant to s 61D(2), a parenting Order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) expressly provided for in the Order or necessary to give effect to the Order. Section 61C(1) of the Act expressly confers parental responsibility for a child who is not 18 years of age on each of the parents of the child.
Section 61DA(1) imposes the obligation on the Court, when making a parenting Order, to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. A parenting Order conferring equal shared parental responsibility for a child on both parents imports, through s 65DAC of the Act, the statutory obligation on both parents, when the exercise of parental responsibility involves making a decision about a major long-term issue in relation to the child, to consult the other parent in relation to the decision to be made about that issue; to make a genuine effort to come to a joint decision about that issue; and to actually make the decision jointly. The corollary of that is that if the decision cannot be made jointly, then it cannot be made at all by one of the parents alone.
However, pursuant to s 61DA(2) of the Act, the presumption set out in s 61DA(1) does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
If the presumption does not apply, the Court may make such Order as to parental responsibility as it considers to be in the best interests of the children.
If an Order is made giving the parents equal shared parental responsibility, then mandatory consideration must be given to the question of whether the children spending equal time with each of the parents would be in their best interests and also to the question of whether the children spending equal time with each parent is reasonably practicable (s 65DAA). If the Court does not make an Order for the children to spend equal time with each parent, then, if the parental responsibility is shared equally, the Court must give mandatory consideration to the children spending substantial and significant time with each parent.

If an equal shared parental responsibility Order is not considered to be in the best interests of the children, then the Orders providing for which parent the children live with and how much time they spend with the other parent, and in what circumstances that time is spent, are determined by the Court having regard to the paramountcy of the children’s best interests.

Parenting cases involving allegations of sexual abuse

Where the evidence includes allegations that a parent has sexually abused a child or children, determining those allegations is but one aspect of determining the proper parenting Orders to make. The High Court has made it clear that the Court is not required to determine either that the alleged sexual abuse did happen or that it did not happen but rather that this Court has a duty in such cases to determine and make such Orders as, in the opinion of the Court, will best promote and protect the interests of the child. The High Court observed[1] that in doing that this Court will:
…give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [as were the terms used in the legislation at the time of the High Court’s judgment in this case], but because it is prima facie in the child’s interests to maintain the filial relationship with both parents…
[1] M v M (1988) 166 CLR 69, 76; [1988] HCA 68.
In M v M (1988) 166 CLR 69; [1988] HCA 68 (“M v M”), the High Court also relevantly observed[2] that:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…
(Emphasis added)
[2] At 76.
The Judges of the High Court said:[3]
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
[3] At 75.
The High Court Judges’ reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting Orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Act). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC) when making such parenting Orders the Court thinks proper.
As is well known, each year this Court hears large numbers of parenting cases involving allegations of sexual abuse. In the eight and a half years I have been a Judge of this Court, I have heard and determined very many. Despite that, in deciding each individual such case, it is always still worth reflecting upon the seriousness of the central issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N & S & the Separate Representative (1996) FLC 92-655 at 82,709; [1995] FamCA 139 (“N & S”):
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.
I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was, 14 years ago, in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 (“W & W”).
However, I hasten to observe that the High Court Judges went on in their judgment in M v M to expressly say[4] the following:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw… There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”^[[5]]
(Citations omitted)
[4] At 76-77.
[5] What became known as the “Briginshaw test”, following that 1938 High Court decision of Briginshawv Briginshaw (1938) 60 CLR 336; [1938] HCA 34, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:
Relevantly, their Honours continued[6] and said:
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
…
…the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Emphasis added)
[6] At 77.
This has become known as the “unacceptable risk test”. It was discussed further by the Judges of the Full Court in W & W who said at paragraph 111:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities, abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S… do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
At paragraph 105 of that judgment, the Full Court Judges, referring to that judgment of Fogarty J in N & S, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?…
Murphy J also discussed the question of risk assessment in his judgment in Harridge & Harridge [2010] FamCA 445 (“Harridge”). Having referred to N & S, his Honour proceeded to adopt the following list of inquiries in relation to risk assessment:[7]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[7] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Respectfully, I also consider these useful questions to consider in this process.

The evaluation of the evidence

Sadly, there is much evidence in this case that supports findings that the relationship between the mother and the father was one in which alcohol and drugs were abused and violence between them was not uncommon.
When the two of them commenced their relationship they used to go out a lot to bars drinking alcohol together. The mother said she soon realised that the father had a drinking problem. She gave evidence that he drank to excess on at least four days each week. She said that when he drank too much he became aggressive and they had many arguments about his drinking. She complained that he used to hide bottles of beer and spirits in the gardens around the yard so as to avoid detection by her. His drinking was, according to her, a source of constant conflict in their relationship.
The mother exhibits to her affidavit of evidence in chief photographs she took of the mess in their bedroom one night in November 2010 caused by the father coming home intoxicated and going on an angry rampage. She said that there were many incidents in which she was pushed and shoved by the father. She said that there was another occasion around that time when X was just a newborn baby and they argued with the father becoming physically violent towards her. She said that he punched her face, arms and legs. She said that she fought back and hit the father in the face.
New South Wales Police records were in evidence before the Court. They record details of police being called to the local hospital by staff on a day in January 2011. Staff were concerned for a male patient who had presented to the hospital concerned about his new baby and his partner who he said was possibly suffering from depression. That man was the father. Police spoke with him and he told them that he and the mother had become involved in a heated argument at about 4.00 am that day. He said that he had been asleep when the mother poured cold water on his back, waking him up. He told police she pulled his hair and punched him in the face. He told police he had pushed her away and shouted at her “you need a bullet”. Police noticed a small cut to his lip and a red mark on one of his ears. Police notes record the father telling them he had driven to a community service placement that morning and then attended at the hospital.
The Police notes record that the mother attended the hospital soon after they arrived there, having received a call from hospital staff checking on the well-being of the baby. The notes reflect the mother saying that she decided to attend the hospital believing that the father was there and that he had caused the hospital to call her. The notes record the mother having told police that she did pull the father’s hair and that a wrestle had started. She denied that she had punched him, and explained the cut to his lip by saying it must have happened in the wrestling.
The mother was charged with assault by the police that day. She pleaded guilty in the Town E Local Court. A conviction was recorded but no other penalty was imposed. She said she was charged by police as she had no visible injuries but the husband had the small cut on his lip. She said that a few days after the incident she noticed some bruising on her face and arms. She exhibits some photographs she said she took of those bruises. The photos do show some bruises.
The father was charged with driving offences on the same day. Police records reflect that he was charged with driving a car that day whilst being disqualified from holding or obtaining a drivers licence. It is that offence for which he was later sentenced to a term of imprisonment for nine months. He was bailed to appear in the Local Court on … February 2011. He failed to appear on that date and was charged with failing to appear in accordance with his bail undertaking. A warrant was issued for his arrest.
The records reveal he was arrested on … March 2011 and taken before the Local Court and bailed again to appear on a later date.
However, the police records also evidence police being called to the mother’s home soon thereafter, on … April 2011, after reports of another family disturbance. The records reflect the mother having told the police that night that she and the father had a heated argument over money and the failing relationship and that she had asked the father to leave the home. She reported that he became extremely abusive of her, grabbed her arm, dragged her towards him and demanded she talk to him. She walked away and called the police. The father followed her into the bedroom and told her he was going to kill her as it was her fault that he was going to be going to jail. He also shouted at her that he was responsible for feeding her “fat c...t of a son”. She then went and turned the front light on to await the arrival of the police. The father punched the light switch and damaged it. Police arrived and arrested the father. The records reflect that the father admitted to police that he had punched the light switch and threatened to kill the mother. He also admitted grabbing the mother by the arm as she walked away from him. He told police he had drunk “about one glass of wine” during the incident.
In Court before me, the father said that he had in fact had three drinks that night, but agreed that he had threatened to kill the mother that night “in the heat of the moment”.
He was charged with common assault and destroying property and, on … May 2011, was convicted in the Local Court and sentenced to one month in prison. On that same day, he was dealt with for another matter that I will refer to further on in these reasons and sentenced to an additional four months imprisonment starting that same day. The records reflect that he remained in prison and on … August 2011, in the Town B District Court his convictions for failing to appear in Court on …February and for driving whilst disqualified on …January were confirmed. He was sentenced to nine months imprisonment commencing on … May 2011 (when he had been sent to prison by the Local Court for the other offences) and given a non-parole period of the time he had already served.
It seems he came out of prison a few months thereafter, on parole subject to supervision.
I accept that the father did perpetrate violence and abuse against the mother. Plainly, the relationship between the father and the mother was a volatile one. They argued and they fought physically, sometime injuring each other. They verbally abused each other. Their newborn first baby was exposed to some of the worst of this behaviour. There is absolutely no excuse for this behaviour. Anger in “the heat of the moment” does not excuse it. Retaliation for abuse suffered does not excuse it. As they were apparently unable to bring an end to the volatility in their relationship, it was probably a good thing that the relationship was brought to an end by the mother.
What has not been brought to an end by the termination of their relationship, though, is the father’s excessive use of alcohol. I am quite satisfied that he has a longstanding problem with alcohol. I accept the mother’s evidence about the father’s alcohol use and abuse. The New South Wales Police records also confirm that it has been a longstanding, serious problem for the father.
On … September 2010, the father was pulled up whilst driving by New South Wales Police. He was charged that day with driving whilst disqualified. On …November 2010, he was convicted in the Local Court and sentenced to 150 hours of community service and disqualified from driving for another 12 months. On …May 2011, he was apparently dealt with again for that offence, having been charged again for driving whilst disqualified on the day he drove to the hospital. He had even driven that day in January to the place where he was serving his community service for the previous disqualified driving conviction. Strangely though, he somehow blamed the mother for the fact that he was caught by the police at the hospital on that January day in 2011, saying she had set him up.
On …May 2011, as I have already mentioned, he was also sentenced to four months imprisonment on a revisiting of the 2010 conviction that the New South Wales legislation must have required.
During his evidence at the trial before me, the father told me that his original disqualified driving charge arose out of disqualification imposed in Queensland. He told me that he had three historic drink driving convictions in Queensland. One he said was in the low range of blood alcohol concentration (0.05 – 0.08), one was in the mid-range (0.08 – 0.1) and one was in the high range (greater than 0.1). He also admitted to me that the couple of occasions on which he was caught by New South Wales Police driving whilst disqualified were not the only times that he drove whilst disqualified. There was evidence, that he did not dispute, that he was observed (by the supervisor) driving a car at the commencement of one of his supervised periods of time spent with the boys. It was only for 80 metres or thereabouts on a public street, but he nevertheless conceded that it was contrary to law. Indeed, I am satisfied that he has driven many times whilst disqualified from holding or obtaining a driver’s licence. I am also satisfied, having regard to both that evidence and the evidence about his alcohol consumption, that he has more probably than not driven on other occasions when he has had more than the prescribed amount of alcohol in his blood, in addition to the few occasions he has been caught and charged.
The father told me that he buys and consumes a carton of 24 stubbies of beer each week. That is an average of at least three stubbies per day and more on some days. I consider that in fact he probably drinks more than three beers on average per day. There was evidence that he had a habit of watching rugby league games on Friday nights in the league season during which time he would drink a six-pack of stubbies. He said he often goes to a hotel to watch various sporting events and drinks whilst watching the event.
There was evidence that some CDT tests he had undertaken over the years since the parenting dispute arose showed results that were consistent with sustained excessive use of alcohol.
The father told the Court that he did not consider he had a problem with alcohol. The psychiatrist who assessed him disagreed. He said the evidence supports a view that the father “has had a serious recurrent long-term problem with controlling his behaviour with respect to alcohol use, making informed decisions, and his impulse control [to drink and drive or not]”. Interestingly, the father told the Court that he accepted what the psychiatrist said but, nevertheless, he still not consider that he had a problem with alcohol. I am satisfied that the psychiatrist was correct when he said that statements made by the father to him about his alcohol consumption are:
…indicative of a severe lack of self-awareness of a need to change his relationship with alcohol in his life…
and that:
…[the father] lost sight of the need to control the amount of alcohol he ingests and how often he ingests it, a long time ago.

In addition to his use of alcohol, the father told the psychiatrist (when he saw him on 18 April 2018) that he had tried “multiple illicit drugs as a “kid”” and that he had last used cannabis “3-4 weeks” prior to meeting for the assessment. Under cross-examination, the father told the Court that he had been smoking cannabis for 30 years but had stopped “earlier” in the year (2018). He told the Court that he used to smoke cannabis about five times per month and that between the ages of 18 to 25 he had smoked cannabis 10 times per week.
It is very difficult to accept the father’s evidence that he simply “stopped” smoking cannabis last year, after 30 years of habitual use of the drug. Indeed, I do not accept that evidence.
The psychiatrist said in his report that the father:
is strongly encouraged to speak to his GP about an urgent need to [1] cease cannabis use totally and permanently and [2] to reduce his alcohol use to a low risk level of intake [3 or 4 alcohol free days per week and no more than 40g of alcohol ingestion on any one day, and no more than 10g of alcohol ingestion per hour].
The psychiatrist said that key issues to consider in such a review relate to the father’s understanding of the analysis of his past behaviour, his motivation to change his future behaviour, the need to seek referral for psychological counselling to assist him in trying to change his future behaviour, the need for referral for a specialist assessment from a service that specialises in the assessment and management of people with history of alcohol related life difficulties, the need for him to comply with any recommendations that may be prescribed, the monitoring of his relationship with alcohol and commitment to not use illicit drugs ever again. The psychiatrist expressed the view that 10 sessions of counselling over a six month period would be a reasonable step to commence the process, but that the success of any such counselling is very dependent upon the father’s motivation to change. The psychiatrist expressed the view that if the father did not change his attitude to one that “clearly demonstrates better acceptance of self-awareness of the need for change, the prognosis is poor”.
The person who supervised the children’s visits with the father between August 2017 and August 2018 said in her affidavit evidence that she noticed a very heavy smell of alcohol on the father’s breath during the first visit. She said she was “sure [the father] was under the influence of alcohol”. She did not make the same observation in respect of any subsequent visits, though she did say that the father constantly smoked cigarettes throughout the visits “less than an arm distance from [the boys] leading them to be inhaling a lot of passive smoke from [the father’s] cigarettes”.
I am quite satisfied that the father habitually consumes excessive amounts of alcohol that significantly impairs his life functioning. I am also satisfied that he is unable to reduce his consumption to safe levels. Further, I am also satisfied that he is unable to reduce or regulate his use of tobacco and I am not convinced that he no longer uses cannabis.
These matters alone, I am satisfied, would significantly impair his capacity to offer safe and secure care for the two boys if they were living with him or spending alternate weekends in his unsupervised care.
Furthermore, the cost of the habitual use of alcohol, tobacco and cannabis is a significant impairment to the father’s capacity to offer reasonable financial support for the boys. The mother’s evidence at trial was that she receives about $15 per month in child support from the father through the Child Support Agency. That is such a minimal amount because the father is unemployed and it is taken from the Commonwealth Centrelink benefit that the father receives. That is to ensure a minimum contribution to the support of his children. However, the father’s evidence about his expenditure on alcohol, tobacco and cannabis when compared to his financial contribution to the support of his two sons is troubling and brings into focus his poor attitude to the responsibilities of parenthood as well as the strength of his commitment to spending regular time with his two sons.
The father told the Court that his use of alcohol cost him around $50 per week. He also told the Court that he smoked cigarettes that he rolled himself using a pouch of tobacco a week that costs him about $33 per week. He also told the Court that he was spending $150 per month on cannabis at the time he was last using that drug – earlier last year, 2018. If he is still using cannabis, the total he spends on alcohol, tobacco and cannabis could be at least $120 per week or nearly $500 per month.
The father told the Court that he could not afford to buy a motor car, though he is again eligible to obtain a driver’s licence. He also told the Court that he could not afford to pay for the cost of supervision of any time he spends with the children at a children’s contact centre. He might be able to afford to do both if he did manage to give up his excessive use of alcohol and tobacco and if he did stop using cannabis.
The woman who supervised the children’s time with the father for the year from August 2017 to August 2018 gave fairly detailed evidence about her observations of the father and his interaction with the boys during their supervised visits. Her evidence, which I had no difficulty accepting as truthful and carefully given, included many observations of matters that could not be considered optimal or model parenting. She said the father would not bring sunscreen and apply it or reapply it to the boys during their time with him, much of which was spent in the outdoors in the sun across the middle of the day, including right through an entire summer. He would not bring water for the boys and would then buy them sugary soft drinks. He would take them to eat in what the supervisor considered were unhealthy fast food restaurants. He would let the boys go without shoes or other footwear whilst walking on hot concrete footways in the middle of hot summer days. He would smoke often in the immediate presence of the boys. He would not welcome guidance or correction by her in respect of any of these matters.
Whatever might be said about the father’s capacity to care for the boys from an objective standpoint, the evidence is that the mother did agree to the boys spending some weekends with the father, including staying with him overnight in 2015 and early 2016. She facilitated that by delivering the boys into his care for those visits overnight. Indeed, in February 2016, the mother even asked the father if he would care for the boys whilst she travelled to Town F in New South Wales for a family funeral for a few days. The father agreed to care for the boys and the mother left them with him for a number of days. They disagree as to whether it was three days (the mother says this) or five or six days (the father says this). Further, the mother said she did not have any other option.
I do not consider it is necessary to decide who is right about those matters as it is plain that notwithstanding all of her knowledge and experience of the father the mother by that action showed that she did not consider the father was so incapable of caring for the children that she would not leave them with him to care for them for a few days by himself.

The re-emergence of concerns of sexually inappropriate behaviour

The mother’s evidence is that on 10 April 2016, she again became concerned about the father’s possible behaviour with the children. She said she dropped the youngest boy off at the father’s place (he was living in a granny flat type situation at the side of a house owned and occupied by another couple) to spend some time with the father, whilst the eldest boy went to a birthday party of a friend. The parents had agreed that the mother would drop the eldest boy over to the father’s place for some time with the father and his brother after the party.
The mother said that when she dropped the youngest boy he cried and screamed and was reluctant to go to his father, clinging to her tightly and pulling away from his father as he went to take him. The mother said that later that day the eldest boy said to her “We should get Y… I should be there with him. Y must have a scared feeling in his belly.” The mother said that she then asked X, “What do you mean by a scared feeling? Do you ever get a scared feeling in your belly?” She said the boy responded “Yes, when dad chases me when he’s naked and when he tickles me. Dad runs around outside naked”. The mother said that she then squatted down next to X and asked him “where does dad tickle you?” She said X “started squirming around on the floor” and that he replied with words to the effect of “In my belly and sometimes on our private parts”. She said that she stopped asking him questions at that point.
The mother’s evidence is that after that conversation she rang J Group again and this time they suggested she notify the New South Wales Department responsible for child protection and the Police. J Group gave the mother a telephone number for her to call. She called that number. She said that she was told not to let the boys go to their father and she acted on that, ceasing time with him again.
X was interviewed by a police officer and a departmental officer on 20 April 2016 at a police station. That interview went for about 37 minutes. The boy told the police he was there to talk to them about “dad’s naughtiness”. He told them that his father was “running around nude” and “he was chasing us nude outside”. He told them that his father “caught my little brother nude” (in other words, the father was in the nude) and that his father “was dressed and then he took his pants off and then he showed his nudie dance” and the boy said “he said look at me I’m doing my rudie dance”.
Later in the interview, the boy told police that his father had touched him on the private parts when he was sitting on the toilet and again after he had got off the toilet. He told police that his father had put his hand up his pants and tickled him under his underwear and his shorts. He said that he had seen his father also touch his little brother on the bottom and that he heard his brother yell “no, no, no”.
The boy also told police that his father had said to him “tickle my doodle” and also “I’ll tickle you on the private part if you don’t tickle me now.”
There was not a lot of information given by the boy about context or timing. He variously said that it had happened “a couple of days ago” and that “it was after the day of [his] birthday”. His birthday had been six months before that interview. No significantly greater particulars than that were given by the boy about the alleged incidents.
As I have already observed, police did not lay any charges against the father, though the interviewing officer did make application for an Apprehended Domestic Violence Order against the father on behalf of the two boys. When that was heard before the Local Court on … 2016, the Magistrate dismissed it. The father and his solicitor clearly both thought that was sufficient to disprove the allegations. Respectfully, it is not.
The mother referred to a couple of other events that troubled her. She said on 29 June 2016, X said to her whilst she and the boys were at home watching movies, “When dad drinks beers, he farts more and makes Y and I smell his bum crack. He doesn’t get me because I know it stinks, but he always gets Y.”
She said that on 9 August 2017, whilst the boys were talking to their father on the telephone, via a hands free speakerphone, she heard the father say to Y “You’re the sexiest boy in the world, why don’t you want to talk to me.” I accept these things were said.
The mother was also concerned about a report from the supervisor as to something she said she saw during a supervised visit on 19 November 2017. The supervisor said that she and the father took the boys to the cinema to see a movie. She said that the father chose to sit in the very back row of the cinema and that during the movie she saw him put his hand on Y’s inner right thigh and leave it there for about 15 minutes. She said she could see the father “inappropriately wriggling his fingers in Y’s private areas”. She said that when she eventually leaned forward to ask the father to take his hand away, he took his hand off the child’s leg.
The father did not deny that he had put his hand on the boy’s leg but said he had done it to comfort him when he displayed some fear during the movie. He denied that there had been any improper motive for doing that.
The father denied that he had ever done or said any of the things X said about him in the interview or that the mother reported X saying to her.

My consideration of this evidence

There are any number of explanations for the child, X, saying the things to the police that he was recorded as saying. Certainly, however, what he said in that interview could be explained by the father having done and said what the boy said he did and said. However, that is not the only single explanation for a five year old child saying those things to police.
On the evidence that I have read, seen and heard, I am certainly not prepared to find, given the standard of proof required, that the father has actually sexually abused his children. Nor though, can I say, having regard to all of the evidence, that I am completely satisfied that he has not touched his boys in a sexually inappropriate manner. I am certainly not persuaded to the view that the mother either deliberately or unconsciously put the idea into X’s head that his father touched him and his brother inappropriately and I am not persuaded that X has just made up the story to please his mother.
Having regard to the questions that Murphy J posed in Harridge, I consider that the father’s excessive use of alcohol and his probable use of cannabis certainly increase the risk of the children suffering physical or emotional harm in the father’s care if he was to have unsupervised time with them, after school or on weekends or in school holidays. On all the evidence, there is indeed some risk of the boys even being exposed to sexual abuse at the hands of their father. In circumstances where I cannot be satisfied that the father would not be heavily under the influence of alcohol or illicit drugs at any time the boys might be in his unsupervised care, I assess the level of risk of harm to them from neglect or abuse of one form or another to be unacceptable.
As was submitted by counsel for the ICL and counsel for the mother, I accept that only supervision of the father’s time with the children could mitigate this unacceptable risk in the foreseeable future. That also accords with the recommendations of the family report writer who, as a nurse, had years working in a special care nursery in a maternity hospital and, as a psychologist, has had many years of experience working in counselling and statutory child safety, including in positions carrying senior team leading responsibilities.
Supervision by a private person agreed upon by the parents would, of course, be the most cost effective and flexible form of supervision. That type of supervision worked reasonably well for a year from August 2017 until August 2018. It facilitated reasonably regular and frequent visits in outdoor and indoor recreational settings that the father and the boys seem to have enjoyed, though the evidence does support a finding that the father did not always prioritise that time with the boys above all else in his life – missing and cancelling several visits for reasons that might have been avoided with more effort and commitment to maintaining the visits.
The ongoing success of that sort of supervision requires the unswerving dedication and commitment of the supervisor. This particular supervisor had her own work and family commitments, yet she volunteered to travel from Brisbane to the southern end of the City D regularly over the course of a year before she found she could just not do it anymore. She is to be commended for having supervised visits for as long as she did and her decision to cease doing so is understood.
The mother is not able to propose anyone else to do it now. The father proposed a friend of his but the evidence about her and her interactions with the father, the children and the mother, in particular, led me quickly to the conclusion that she would not be an appropriate person to supervise time the boy’s might spend with the father. There was conflict and antagonism between the mother and that woman. She was completely aligned with the father and his cause. She was totally convinced that he was not a risk to these boys in any respect. The mother understandably would have no confidence in that woman’s capacity to vigilantly supervise the father’s time with the boys.
No other potential suitable person who is willing to supervise any such time was proposed by the parties to the Court. The ICL and the mother, in those circumstances, submitted that any time the children spend with the father must therefore be supervised by a children’s contact centre. The closest and most available centre is one in Town B in New South Wales. That is just over 100 kilometres away from the area in which the children live with the mother, or about a one hour drive.
The mother is clearly prepared to drive the boys to that centre for such supervised time with their father and to do so every second weekend. She seeks such orders, though she expects the father to pay any costs of the contact centre associated with that supervision. The orders the ICL proposed provided for the possibility of another children’s contact centre to the north on the City D being used instead of Town B. I will make that Order that provides for that alternative.
The father, at the time of the trial, did not have a driver’s licence. He did not have a car and he did not have employment. The lack of these things that might generally be regarded as some of the basic necessities in life for a middle aged man with dependent children, who has earned his living in the trades, makes the probability of him actually attending supervised contact sessions at a children’s contact centre in Town B or some other place that is also a similar distance away, that he has to pay for, rather low, I must acknowledge. As I have already observed, his lack of insight into the extent of his problems with substance abuse and his apparent unwillingness to prioritise time with his children above most other things are likely to be major hurdles in overcoming these difficulties that unfortunately present themselves in this case.
Nevertheless, I am quite satisfied that the best interests of these two little boys who are now 8 and 6 years of age will only be served by providing for their time to be supervised at a children’s contact centre, at the father’s expense, for the foreseeable future. The prospect of that changing, other than with the mother’s agreement, will depend on the father’s ability to be able to demonstrate, at some point in the future, that he has overcome his substance abuse problems and that he prioritises his relationship with his sons to such a level that he can demonstrate that it is in their best interests to begin spending even more time with him.
I will make Orders that require the father to undertake some counselling with K Service or a drug and alcohol counsellor, as recommended by the psychiatrist. I will also provide for the father to undertake a couple more CDT tests and provided them to the mother. If he successfully completes counselling and he is able to reduce his alcohol intake and verify that he has done so and that his use of alcohol remains at a managed, low level, and if he has demonstrated his commitment to maintaining a relationship with his boys, I would expect the level of risk of harm of any sort to his children in his unsupervised care would reduce so significantly as to no longer be at unacceptable levels.

Parental responsibility

I have not started these reasons for the Orders I will make by addressing parental responsibility as is often done. I have done this as I am quite satisfied that the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them does not apply in this case because of the family violence that went on between the father and the mother before their relationship finally ended.
Following that, I am also in a position where I can say I am not satisfied that an Order for equal shared parental responsibility would be in the best interests of these boys.
By the parenting Orders I will make, they will be living with their mother and only seeing their father if he takes advantage of the orders that provide for them to spend time with him under supervision at the children’s contact centre in Town B.
The evidence clearly establishes that the two parents do not get along, they do not communicate with each other and they have little respect for the other. In these circumstances, I do not consider the equal sharing of parental responsibility for the boys is in their best interests, particularly having regard to the mandatory requirements of s 65DAC that I have written of earlier in these reasons.
I will be making an Order that confers parental responsibility solely on the mother whilst still requiring her to consult with the father and seek his input on any decisions about major long-term issues in the boys’ lives (as that term “major long-term issue” is defined in the Act). However, the Order I will make will mean that if they cannot reach an agreement, the mother has the sole right to make the decision herself.
I will make a parenting Order that provides for supervised time to take place at a children’s contact centre anywhere from Suburb C to Town B and sets out the requirements for the parents to register at such place. In addition, the father will be required to confirm with the mother by email sent to her by 6.00 pm the night before a scheduled visit that he will be attending the visit the next day.
The Orders will provide for the children and the father to be able to communicate regularly each Wednesday evening by telephone, the mother having to initiate the call and to get the boys to speak with the father.
The mother will also be ordered to advise the father if either of the boys ever require any emergency medical treatment.
As the boys both play sports and they share their enjoyment of that game with the father, I will make Orders that the father is permitted to attend and spectate at the boys’ sports games, as well as any other sporting activity they may engage in. The mother will be required to email the father a schedule of the boys’ home games for the season within two days of that schedule being released to her. If such a schedule is not released at the start of the season then she shall email the father within a day of learning the detail of each of the boys’ home fixtures. His permitted attendance will be conditional upon him not being under the influence of any amount of alcohol and not approaching or attempting to engage with the mother whilst there.
I will also make an Order that requires the father to engage in treatment aimed at reducing his use of alcohol as well as psychological counselling with the K Service or drug and alcohol addiction counsellor. The father will have the Court’s leave to provide a copy of Dr A’s report to such counsellor.
The mother will also be ordered to arrange for the boys to have protective behaviours counselling with regard to the risks of sexual abuse.
I will also make a non-denigration Order binding both parents as well as an Order binding them to keep the other informed of their current email address and telephone number.
The father will be authorised to obtain information, reports and photographs about the boys from their schools at his expense and the ICL will be discharged.
I make the Orders set out at the commencement of these written reasons.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 July 2019.

Associate:

Date: 17 July 2019

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and

(c)the gravity of the matter alleged.