JAEGER & HOLLIS

FAMILY COURT OF AUSTRALIA

JAEGER & HOLLIS

[2014] FamCA 347

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – sexual and physical abuse allegations made against the mother’s husband – where the mother has not been protective of the children – where the mother does not have the capacity to foster a relationship between the father and the children – where the mother was the primary attachment figure – unacceptable risk of harm by corporal punishment inflicted by the mother’s husband – children to live with the father – children to spend supervised time with the mother – mother to have weekly phone contact with the children

FAMILY LAW – CHILDREN – Parental responsibility – father to have sole parental responsibility for the children – where the presumption of equal shared parental responsibility is rebutted by evidence of conflict and poor communication between the parties

FAMILY LAW – INJUNCTIONS – Mother restrained from allowing the children in the presence of her husband – both parties restrained from allowing the children in the presence of their maternal grandfather – where the maternal grandfather has been found possessing child pornography and was accused of taking inappropriate photos of the father’s older daughter

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT:

Mr Jaeger

RESPONDENT:

Ms Hollis

INDEPENDENT CHILDREN’S LAWYER:

Ms Wooi

FILE NUMBER:

NCC

1377

2011

DATE DELIVERED:

30 May 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

3, 4, 5, 6,11 & 12 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mooney

SOLICITOR FOR THE APPLICANT:

Hunter Family Law Centre

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Barbara Garrick & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

Orders

That all previous parenting orders for:
(a)       L born … 2004;
(b)       B born … 2006;
(c)       J born … 2008; and
(d)       W born … 2010
(“the children”) be discharged.
That the father shall have sole parental responsibility for the children.
The father may change the enrolment of the children to schools/pre-schools in his local area in consultation with the Principal/Pre-school Director of current institutions.
The father shall provide a copy of these Orders to the schools/pre-school at which the children attend and also to any schools/pre-school at which they are subsequently enrolled.
The father shall authorise the schools/pre-schools at which the children attend to release to the mother, at her own cost, all information relating to the welfare and progress of the children at school including but not limited to school reports, school newsletters and applications for school photographs.
The mother may attend events to which parents are invited at the school/s of the children.
In the event that the Principal of the school is willing to facilitate such visits, the mother may spend time with the children at school PROVIDED THAT a teacher is present NOTING that this is a matter entirely within the discretion of the Principal.
That the children live with the father.
That the children spend time with the mother as agreed in writing between the parties but failing agreement as follows:
(a)Supervised time each fortnight and failing agreement otherwise on alternate Saturdays, such time to be either in a professional Contact Centre or in the presence of a supervisor from a professional supervision service from 9.00 am to 5.00 pm, or such lesser period of time as may be advised to be available.
For the purposes of spending time, the mother shall:
(a)Nominate a professional supervision service and/or contact centre in or operating in the Town A area and thereafter each parent shall take all necessary steps to become users of that centre and/or clients of that supervision service.
The mother and the father shall be responsible for the costs of supervision in equal shares with the mother to pay in advance to the contact centre or supervision service and the father to remit to the mother his half share of the receipted amount paid.
In the event that:
(a)the mother notifies the father that she is unable or unwilling to participate in supervised time on alternate weekends;
(b)a Contact Centre / Supervision Service becomes unable or unwilling to provide that service;
(c)the mother fails to attend for supervised time on alternate weekends on two consecutive occasions where there has been no prior notice by her to the father of her inability to attend; THEN
(d)time between the children and the mother shall be on a supervised basis at a Contact Centre four times per year at times to be advised by the father to the mother and confirmed in wring by her.
The operation of Order 9 may be suspended for a total of 4 weeks per calendar year to enable the father to have a holiday with the children AND in that regard the father shall give the mother notice in writing of the suspended period/s not less than two months in advance on each occasion of suspension.
The mother shall within 7 days of the date of these Orders nominate a telephone number/email address/Post Office box for the father to communicate to her information pursuant to these Orders (the nominated address of the mother) AND shall keep the father advised in advance of any change in that regard NOTING that provision of the relevant information to the nominated address of the mother is sufficient compliance.
The father shall nominate within 7 days of the date of these Orders:
(a)the telephone number for the mother to use to contact the children AND shall keep the mother advised in advance of a change of telephone number (the contact telephone number);
(b)an address for the following of material in accordance with these Orders (“the nominated address of the father”).
That the children shall have telephone communication with the mother; such contact to be initiated by the mother telephoning the contact telephone number at any time between 5.00 pm and 6.00 pm on:
(a)Wednesday nights;
(b)on the respective birthdays of each child;
(c)on Christmas Day;
(d)on Mother’s Day if the children do not otherwise spend time with the mother on that day;
(e)on the birthday of the twin daughters of the mother and Mr N.
The mother be permitted to communicate with the children by sending letters, cards and/or gifts to the children and for the purposes of implementation of these Orders all letters shall be sent to the nominated address of the father NOTING THAT the father may read such communications and shall pass such items on to the children unless he is satisfied that it is not in a child’s best interest to receive any particular item.
That in the event the children or any of them wish to communicate with the mother by letter card or gift the father shall facilitate such communication by forwarding such letters/cards/gifts to the mother at the nominated address of the mother.
The father shall send to the nominated address of the mother the following information:
(a)copies of any specialist medical, dental, or optical reports;
(b)immediate notice of a child being hospitalised;
(c)immediate notice of any serious medical illness or condition suffered by the children.
The mother is restrained from:
(a)bringing or permitting the children to be brought into contact with Mr N at any time;
(b)permitting or arranging for the children to have communication with Mr N in any way.
That each parent is restrained from causing or allowing any of the children to come into contact with or communicate with Mr Hollis EXCEPT THAT the father may permit contact in a professionally supervised Contact Centre at his discretion.
The parties are hereby restrained from:
(a)Speaking in a negative, offensive, unpleasant, critical or insulting fashion about the other party in these proceedings or their family in the presence or hearing of the children or permitting the children to remain in the presence or hearing of any other person who is speaking in that fashion about the other party or that party’s family.
(b)Discussing the proceedings between the parties in the presence or hearing of the children or permitting any other person to do so.
The father shall arrange a mutually convenient time for the children to attend on the Independent Children’s Lawyer to further explain these Orders to the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1377 of 2011

Mr Jaeger

Applicant

And

Ms Hollis

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders within the context of the Magellan protocol.
The applicant is the father Mr Jaeger, (“the father”). The respondent is the mother Ms Hollis, (“the mother”). They are both aged 39.
The parties have four children, L aged nine, B aged seven, J aged five and W aged four.
The father’s household consists of himself, his partner Ms D and her son E, aged 15. The four children have lived with their father and Ms D since relevant orders were made in July 2013. The father also has a daughter F aged nearly 15 from his first marriage. They are presently estranged.
The household of the mother consists of herself, her husband Mr N, aged 36 and his daughter from a previous relationship, G aged 13. The mother was expecting children of this marriage, twins to be born in April 2014.
Mr N also has two younger children from his previous relationship, C aged 10 and H aged six. Those two children live with their mother Ms K and her daughter from a previous relationship, namely M aged 17.
By his application filed 23 December 2013, the father seeks orders for:
(a)    sole parental responsibility;
(b)    residence with him;
(c)    supervised time for the mother each alternate Saturday; and
(d)    there are restraints on conduct and a proposed restraint from the children being brought into contact with Mr N and Mr Hollis.
The mother by her Amended Response filed 17 January 2014, seeks similar orders in her favour:
(a)    sole parental responsibility for the children,
(b)    residence with her,
(c)    defined time with the father including school holiday time only for six months, followed by regular weekend and holiday time.
Identified in his Notice of Child Abuse Family Violence or Risk of Family Violence filed 16 July 2013 and in other parts of his evidence, the father alleges on behalf of the children, that:
·   Mr N has touched W and L on their genital areas in an inappropriate way; and
·   Mr N has punished all the children with a strap and a wooden spoon;
·   Mr N has sworn at the children;
·   the children have witnessed domestic violence involving their mother as a victim of Mr N;
·   the children are witness to friends and associates of M calling out abuse to Mr N and the mother in the children’s presence;
·   both the mother and Mr N have neglected W’s ear infection and the children’s infestations of head lice;
·   Mr N has insisted on the children referring to him as “dad” and that all report being scared of him.
On the first day of hearing at about midday, the JIRT interviews with three of the children were delivered to the Court. Those interviews were as follows:
(a)    20 May 2013 with J, then aged four years two months;
(b)    9 July 2013 with W, then aged three years and five months;
(c)    20 November 2013 with J, then aged five years, four months;
(d)    4 February 2014 with L, aged nine years one month.

Short history

In 1996 the father began a relationship with Ms I. In July 1999 a child F was born of that union. The relationship ended in 2000. F spent time on weekends and holidays with her father. F and her father are presently at odds for reasons later referred to in these Reasons.
In 2001 the parties in these proceedings met on the internet. The mother was living in Victoria. Towards the end of that year the mother moved to live with the father in a suburb of Sydney.
L was born in 2004, B in 2006.
In January 2008 the parties, with F, L and B had a holiday on the Hollis family property in Victoria with the mother’s parents. On return, F is said to have disclosed to her mother that Mr Hollis, the mother’s father, had taken photographs of her vagina during the holiday. F’s mother reported the incident to police.
The father says, and Mr Hollis agrees, that the father confronted Mr Hollis by phone with the allegation. Further he says that he held back from making a report to the detectives as a result of the mother’s threat to end the relationship if he made a statement implicating her father.[1]
[1]Affidavit of Father filed 07/02/2014, pars 17-30 inclusive
In 2008 J was born.
In February 2010 W was born.
On 27 April 2011 the parties separated. Without notice to the father and with the assistance of her parents, the mother moved with the four children to live with her parents on their property in Victoria.
The father made an application to the Federal Circuit Court for the residence of the children to be re-established in the Newcastle area.
On 20 June 2011 orders were made for that to happen.
In August 2011 the mother returned to New South Wales to live in rented accommodation in Town O (in the Hunter area).
In September 2011 the mother met Mr N at approximately the same time the father met Ms D. Each parent has subsequently established a relationship with those new partners.
In September 2011, in a memorandum to the Court by a Family Consultant , there was some agreement reached by the parents with the issue remaining noted as a history of domestic violence, verbal, emotional and physical abuse by the father towards the mother and an Apprehended Violence Order (AVO) until February 2012 being in place.
On 15 March 2012 final orders were made in the Federal Circuit Court as follows:
(a)    Equal shared parental responsibility.
(b)    The children to live with the mother.
(c)    The children to spend time and communicate with the father on alternate weekends, half school holidays and other special times.
(d)    There were other orders in relation to provision of information and restraint on conduct.
(e)    Property issues were also resolved at this time.
On 1 June 2012 there was an incident at the changeover of the children, in which the mother alleges that the father grabbed her by the throat and pulled her glasses off her face in front of the children. The father alleged that the mother had attacked him and his face was bleeding. He conceded that he had held the mother by the throat he says in self-defence to distance himself from her.
This violent incident gave rise to the issuing of AVOs, each against the other, for a period of six months.
In June 2012 the mother and Mr N began living together.
On 15 June 2012 Mr N and his ex-partner Ms K were interviewed by the Family Consultant, Ms P, in relation to family law proceedings between themselves. At that conference all three of Mr N’s children expressed a wish to live with him, but also made allegations that he had hit them with a belt under their clothes. The outcome of child dispute conference was that there were significant risks identified in both households that needed to be assessed. The parties reached their own agreement.
In September 2012 the father became aware of criminal charges for Mr N.
In October 2012 the mother stopped communication between the father and the children. Prior to this time, the father says he was able to speak to the mother and the children quite freely.
On 20 October 2012 the father is alerted to Mr N’s surname having been written on tags sewn inside the clothing of the children by their mother.[2]
[2]Affidavit of father filed 07/02/2014, par 86 and Annexure ‘D’
On 9 November 2012 the father called the mother’s landline phone and heard an answering machine message recorded by Mr N telling the father to:
Fuck off mate; I’m not here to provide a fucking phone line for you to make bullshit promises to your kids.[3]
[3]Affidavit of father filed 07/02/2014, par 68
In his affidavit Mr N admitted to leaving a message for the father on the voicemail service, but alleged that it said something along the lines of “If this is you [the father’s given name] piss off.”[4] The tape played in Court supported the evidence of the father.
[4]Affidavit of Mr N filed 21/02/2014 pars 46-48
On 29 December 2012 an incident occurred at the mother’s home where Mr N had lit a bonfire on his property and the police and the fire brigade attended to tell him to put it out.
On 23 March 2013 an incident occurred at school where another child, Q grabbed hold of B’s private parts causing B to be too scared thereafter to catch the bus to school.
On 20 May 2013 there was a JIRT interview conducted with J.
On 7 July 2013 the paternal grandmother asserts that W said upon questioning him that “[Mr N] touches his doodle.” The paternal grandmother reported this to Town R police on 8 July 2013 and was contacted by the JIRT team the next day.
On 9 July 2013 W was interviewed by the JIRT team. Ms D alleged that W had said to her “he touches my doodle” “[Mr N] does” when she was changing his nappy.[5]
[5]Affidavit of Ms D filed 07/02/2014, par 30
On 13 July 2013 the children went to live with the father following JIRT confirming significant risk of harm to the children in the mother’s household.[6]
[6]Affidavit of father filed 07/02/2014, par 54
On 16 July 2013 the paternal grandmother asserts that J said to her that, “Mum and [Mr N] smack us if we don’t call [Mr N] dad”.[7]
[7]Affidavit of Maternal Grandmother filed 10/02/2014, par 14
On 16 July 2013 the father filed an Initiating Application seeking final orders:
·Parents to have equal shared parental responsibility
·Children to live with the father
·Children to spend alternate weekend and half school holidays with the mother, and at other special times
·Restraint on the mother from bringing the children into contact with Mr N
·Telephone contact
·Various restraining orders
At the same time the father filed a Notice of Abuse. The alleged abuse included sexual abuse by Mr N, family violence in the mother’s household and inadequate medical care of the children in the mother and Mr N’s care[8] as described.
[8]Affidavit of father filed 04/09/2013, Annexure ‘E’
The alleged risk of abuse is as follows:
·The father is aware that [Mr N] was previously charged with sexual abuse of a child, but is not aware of the outcome of the proceedings; and
·[J] and [W] have disclosed that [Mr N] has touched their penises.
The alleged family violence and risk of family violence is as follows:
·All of the children have been exposed to a telephone answering service message left by [Mr N] telling the father to “fuck off”.
·All of the children have been told that their father does not love them, have seen [Mr N] swear at the mother and at them, have seen [Mr N] push the mother and are in fear of [Mr N] and the mother and being hit.
On 26 July 2013 the proceedings were allocated into the Magellan protocol and consent orders were made between the parties for the children to spend time with the mother on alternate weekends, on the condition that the mother did not allow the children to come into contact with Mr N.

In August 2013 there was contention as to whether or not Mr N was present when the children spent the weekend with their mother in the Town S home.
On 5 August 2013 W is said to have told Ms D that Mr N “touched his doodle with his hand.” J also told Ms D that “[Mr N] had touched his doodle.” Both boys said they had told their mother but she denied that “[Mr N] had hurt them”.
On 16 August 2013 the mother filed her Response, effectively seeking to restore the previous arrangement made by consent that is, the children living with her and spending time with their father.
On 28 August 2013 the father began living with Ms D. Ms D took time off from her employment in order to be available to assist the father with the care of the children.
On 4 September 2013 the father filed an Amended Application providing for supervised time with the mother.
On 4 October 2013 orders were made setting the matter down for hearing.
On 7 October 2013 J disclosed to Ms D an incident where Mr N is said to have touched his penis on the trampoline and taken a photograph of it; that the mother had then found the photograph on Mr N’s phone and deleted it.
On 11 October 2013 the children spent the weekend with their mother; again there was contention. The mother said that she took the children to Town T for the weekend while Mr N stayed at home with his three children. B is alleged to have told Ms D that he saw Mr N at the mother’s home on that weekend. L also told his father that he too had seen Mr N at the mother’s home. The children reported to school staff that they had seen Mr N whilst spending time with their mother on that October weekend.
On 25 October 2013 the Department of Family and Community Services (the Department) intervened and directed the children back to their father on account of the children’s reports of Mr N being present on the previous weekend.
On 8 November 2013 the mother had the children in her care.
On 20 November 2013 there was a second JIRT interview with J, by then aged five years four months. He presented as a remarkably different child, chatty, confident and a great deal more relaxed.
J reported that Mr N had strapped him and when he did that his mother had strapped Mr N. He described an incident where he had wet his pants, removed his pants and was sitting on the trampoline. Mr N had taken his photograph and punched him in the groin. He said there was then a dispute between Mr N and his mother, who had found the photograph, deleted it and to use J’s words, “and they then had a fight.” J was clear to say that he thought Mr N was rude, that he used swear words, that he scared him sometimes by yelling and that he did not like spending time with Mr N, “He’s mean.” He said the taking of the photo had made him feel bad.
On 2 December 2013 the family report was released and on 13 December 2013 the matter was set down for final hearing.
On 20 December 2013 the father filed his Final Application as described providing for limited supervised time (alternate Saturdays) between the children and their mother.
On 20 January 2013 a further allegation was made by L, who told Ms D that he saw Mr N touch W’s penis whilst sitting on W’s bed. He also described a separate incident where he L said Mr N reached out apparently with the intention to touch his private parts, but L walked away to avoid it happening.
On 24 January 2014 B disclosed to Ms D that Mr N had touched his penis twice while he was in bed.
On 26 January 2014 J is said to have told his paternal grandmother that:
[Mr N] was going to shoot [Ms D] and dad and mum said he should do it to you too, but they didn’t call you nanny, they called you another name.
On 27 January 2014 W told his paternal grandmother that he did not want to speak to his mother on the telephone because she called him “piggy”.
In February 2014 the mother and Mr N were married.
On 18 February 2014 leave was granted to the mother to file an affidavit by herself and the maternal grandfather, Mr Hollis, in relation to the allegations of misconduct by Mr Hollis against F, the father’s older child.

The evidence

The parties relied upon the following documents;
(a)    Amended Application of the father filed 23/12/2013;
(b)    Affidavits of father filed 04/09/2013 and 07/02/2014;
(c)    Affidavit of Ms Jaeger (paternal grandmother) filed 10/02/2014;
(d)    Amended Response of mother filed 17/01/2014;
(e)    Affidavit of mother filed 21/02/2014;
(f)     Affidavit of Mr N filed 21/02/2014;
(g)    Affidavit of Mr Hollis filed 21/02/2014;
(h)    Memorandum of Family Consultant dated 23/09/2011;
(i)     Magellan report dated 30/08/2013;
(j)     Family report dated 25/11/2013.

Mr Jaeger, the father

The father is 39. He has had the full time care of the children since July 2013. The travel involved in getting the children to school and disruption to his partner’s employment has put him under severe financial pressure.
During the first day of hearing the JIRT interviews, with three of the children, were delivered and played in Court. The cross-examination of the father was suspended for that to happen.
J had been interviewed twice, W and L once each.
The father sat, as did the mother, watching and listening to the JIRT interviews. The father appeared to be very much affected, putting his head in his hands, changing colour and for a period of time, his mouth simply falling open.
In his interview on 4 February 2014 L spoke of watching Mr N coming to the bedroom which the four boys shared, sitting on W’s bed saying “how are you doing little buddy,” placing his hand very firmly on the child’s genital area, then saying “here’s a lolly” and giving him a lolly before leaving the room.
L also described an incident where he had been alone in the house with Mr N. He described walking through the lounge room towards the front door; that Mr N walked towards him, placed his hand on his hip and began to move his hand towards his groin and that L then walked away before Mr N’s hand made contact with his genitals. L also described Mr N strapping the children and lining them up in order of age to do it.
During those three descriptions, the father appeared to be intensely strained, breathing rapidly, staring with his mouth open and rubbing his head. He was the picture of concern and distress. The father was not in a proper state to continue with his cross-examination at the conclusion of the showing of the four JIRT interviews. His cross-examination resumed on the second day.
The father presented as a careful witness. During the course of his evidence, it became increasingly clear that he took longer to process information than average. He regularly asked for information to be repeated, or broken down, so that he could understand it.
Once he was confident he understood he then gave clear answers, such as “I agree”; “I disagree; “that’s not right.” He was careful with all his responses in a way that suggested that he wanted to be sure of understanding the question. He regularly said “could you please repeat that” and “I am aware of that but I don’t recall particular dates.” I do not consider that the father was trying to buy time or be obstructive. He was a straightforward witness.

Employment of father

The proposition was put to him that he would be unable to care for his children without the assistance of his partner, Ms D. Whilst conceding that she had been home with the children since they came into his fulltime care in July 2013, the father strongly stated that he could care for his children and would do so, “I will change my employment to suit the children’s needs”.
I accept that the father was waiting for the outcome of these proceedings, before giving up remunerative employment; then if the children remained with him, he planned to take up part-time and casual work such as handy-man and retail, in order to work around the children’s needs for care and supervision.

F, Father’s older daughter (almost 15)

The father was asked whether he and his daughter F had had a falling out. He agreed they had for more than one reason. There had been an argument about money and weekend work. To the extent that it was being suggested that the father had misled the Court about the “real” reason, I do not consider that he did.
The father said he understood that F believed that it was his fault that Mr Hollis was not charged and prosecuted with taking photographs of her genitals when she was nine years old, and that this had been detrimental to their relationship.[9] As a young adolescent she is looking back on events and finding her father disappointing.
[9]Affidavit of father filed 07/02/2014, par 30
The father intended to make a statement to detectives about his knowledge and opinions about the photographs taken, based on his conversations with Mr Hollis. He says he stepped back from doing that because of an alleged threat by the mother that she would end their relationship if a statement was made by him to police about her father.
If that is the case, then probably F has a point and an apology is owed to her. Whether or not that is the case, there is evidence that F, now aged almost 15, is angry with her father for not having stood up for her. I accept his evidence about the steps he has taken with F, that he has been patient, he sends texts and stays in contact.
I thought the father was restrained and candid in response to questions in cross- examination about certain past events, the fact that when F had been almost three, allegations had been raised by her mother about his conduct. A report of the child having said either “daddy bit me on the bum and it hurts when I pee” or “my daddy bit me on the bum.” There was a second allegation of the child observed thrusting her hips on top of a doll. There had been proceedings which caused the father significant expense. The father very fairly conceded that he was now making allegations about sexual abuse by Mr N, which would be difficult for the mother to disprove.

Father’s relationship with mother

In his affidavit, the father had briefly referred to the mother confiding in him that her grandfather had sexually assaulted her as a child. The proposition was put to him, clearly on instructions, that that material had been fabricated by the father and not said by the mother. The father was resolute, “Not whatsoever, not at all.” Whatever the truth of it I accept that the mother told the father those things.

Reliability of father

Allegations by B and L had been recently investigated by JIRT. Their statements appear in the affidavit of Ms D and not in the affidavit of the father. He was cross-examined on the basis that he must have been horrified by those disclosures and would have felt it important to include them in his affidavit. The father said that he is indeed horrified, but must have overlooked putting them in.
That evidence is quite inconsistent with the father fabricating statements by the children or having developed an obsession with putting material before the Court. The proposition was put that the reason he had overlooked putting them in his affidavit was because they were not true. I accept that the father believed what his children had told him.
There was also the matter of the affidavits of both the father and Ms D referring to conversations with J and W taking place on 1 June 2013. The conversations must have occurred before 19 May 2013. The father’s answer was that he did not remember attending the police station, but he did remember those things being said. He could see the disparity between the dates where the conversations must have pre-dated 19 May 2013. The father was more concerned with substance than detail and in my view was unshaken in his commitment to what he had been told by his children.
Three of his children were interviewed by JIRT; J twice, in May 2013 and in November 2013; W on 9 July 2013 and L on 4 February 2014. I have no hesitation in accepting that the father became ever increasingly anxious about the statements that were being made to him by his children about life in their mother’s home with Mr N. Concerns over corporal punishment, health issues, deliberate disrespect of the father’s position in the children’s lives and inappropriate touching and commenting on their genitals.
The father readily conceded that he had pressed for all the children to be interviewed, in order for the truth to come out. However I accept his statement that he will follow the lead of the Department as to whether or not there should be any further interviews. The father also accepted that L in particular had been recommended to see a counsellor and that when he took L for counselling, he found that he required the written consent of the mother as well. My overall impression is that the father felt powerless to protect and assist his children.
In July 2013 when all four children came into his fulltime care, he continued to be concerned about their safety and what happened to them prior to that time.
In November 2013 after legal advice and consultation by his partner Ms D with the Department, the father ceased making the children available to the mother for contact. The father was unable to be satisfied that the mother was complying with ensuring the children did not come into contact with Mr N.
I did not get the impression that the father took any pleasure from the children being deprived of time with their mother. He agreed that it could be damaging for the children and at various times, he also agreed that the children missed their mother and loved her. In that regard, I accept his evidence that he tells them on a daily basis, usually at bedtime, that their mother loves them. Further the father offered supervised time to the mother with no response.
The father readily agreed that when he realised that the mother had a new partner and that it was Mr N, he had made inquiries to find out what kind of a step-father he would be to the children. It was hardly an unreasonable step to take. He said he learned from common colleagues with Mr N that it was at least rumoured that he was rough on his step-daughter M and knocked his former partner (M’s mother) Ms K around.
The proposition was put to the father that once he knew about Mr N’s charges and commencement of a trial for sexual assaults on M, he came forward with allegations of sexual misconduct in relation to his own children. The father strongly denied such a thing. I do not consider that the evidence supports to any extent malicious construction of false allegations by the father.

Education and welfare of children

There was a report annexed to the mother’s affidavit.[10] The assessment report diagnosed L with a language related learning disorder and Attention Deficit Disorder (ADD) without hyperactivity. The report was prepared after assessments on 24 January and 6 February 2013.
[10]Affidavit of the mother filed 21/02/2014, Annexure “MH2”, p 39
In her affidavit, the mother said she received the report about eight weeks after the assessment. There is nothing to suggest that she had let the father know that the assessment was being undertaken, nor that the report was being received. Her evidence was that she enclosed the report in an envelope and asked L to give it to his father. The father denies having received it. His evidence is that he first heard about the assessment through reading the mother’s affidavit filed in August 2013 and he first saw the report when it was annexed to the trial affidavit of the mother filed in February 2014.
The father said quite thoughtfully that he did not know that L had been diagnosed with ADD and a language related learning disorder, but as a father he had suspected a problem quite early on. He also said that although he did not know there had been a diagnosis of depression, he was aware of sadness and withdrawal in his son. This is a clear example of the parents not co-operating for the benefit of their children.
Having seen the JIRT interviews of J in May and November 2013, it appeared to me that J had a difficulty with his speech. The father confirmed that he did and that he had arranged for a speech pathology assessment for J and he was awaiting the release of the report. The two interviews also reveal J as very much more relaxed and expressive in the second interview than the first. This is consistent with the father’s evidence that the children seem less anxious, aggressive and upset after a period of being in his care, but it may not be the complete explanation.[11]
[11]Affidavit of the father filed 04/09/2013, par 157
There is ample evidence that the father has been consistently and persistently interested in his children on a day to day basis.
In 2012 he tried to spend time with the younger children W and J, both then at pre-school, pursuant to an agreement he believed he had reached with the mother. The pre-school would not allow him in for supervised visitation and the father asserts and I accept, the mother would not put in writing what she had offered orally to him in that regard.
The proposal was put to him that he became angry with teachers at the school and pressed for the supervisor to explain to him why he could not have the visits. The father described himself as frustrated. I accept that he probably did become angry as well as frustrated, but there were no untoward consequences of that anger and frustration.
Unfortunately on 1 June 2012, there was a very angry incident between the parents which led to both of them being subject to an AVO for protection against the other. The father described the mother as scratching his face and punching the back of his head with one arm. He described himself as grabbing her by the throat and holding her at a distance. He removed her glasses, “To look her in the eyes and say I’m not hurting you so don’t hurt me.” The children were present for this incident and the father is genuinely remorseful that they were exposed to it. He has apologised to them.

Pre-school for W

W is presently not attending pre-school. The father says he cannot afford to send him. The father is financially responsible for his partner Ms D, her son E and his own four children. He is a casual employee earning a fluctuating income of between $1,300 to $2,500 per week. His greatest difficulty is spending between $500 and $550 per week on petrol for the children to be taken to school and for him to get to work. There is also a mortgage, a motor bike loan, footwear and clothing for the household and bills outstanding for Ms D, who gave up her employment to be available fulltime to the children. The father says that he intends that W would return to pre-school at least three days a week, once he is in a position to pay the $60 per day that it costs.
The mother is not employed, is about to give birth to twins and is therefore unlikely to be in the paid workforce for some time. Accordingly all of the costs for raising the children presently fall on the father. I do not doubt that he will send W to pre-school as soon as he is in a financial position to do so and that W will benefit from being returned to regular time with children his own age.
Likewise the father was swift to assist B who had trouble with another child touching his private parts at school, or perhaps on the bus. The resolution of the matter was swift after the father raised it with the Principal, with the other child apologising and B accepting the apology, “He meant to do it but he was being silly”.
To the extent that the father was critical of the mother, it was that she had not addressed the issue with the school, but rather in the father’s view, was driving B to school whilst L caught the bus to avoid the problem. B reported to his teacher that he was not upset about what had happened. The father said he was not surprised that B had said that, “[B] might say things to the teacher because he doesn’t want to bring attention to himself.” This answer revealed both a close relationship between B and his father and a good knowledge by the father of B’s personality.

Family violence during the relationship

Certain propositions were put to the father about his conduct towards the mother during the relationship. He denied yelling and swearing at her; he denied insulting the mother with terms such as, “You are useless as a mother, a slut etc.” It was suggested that he threw objects at the mother. The father said that on one occasion he had thrown a coffee cup into the sink, presumably in anger.
In October 2011 he denied yelling at the mother and punching her in the arm. He said he had asked the mother on that occasion to stop hitting the children as a punishment. I infer that there was an angry exchange between the parents over this request.
In the three years since April 2011 there have been tumultuous events for the father to deal with. The loss of his family without prior notice, when the mother moved to Victoria with the children; successful Court proceedings for her relocation with the children to New South Wales; a new relationship for the father which has been a positive benefit for him; a new relationship for the mother which has ever increasingly caused the father the utmost concern as to the capacity of Mr N to be a kind and thoughtful father to the step-children; then the removal of the four children into the father’s care and the consideration he has made as to his giving up his employment in order to be available to look after them all.
I note that the father did attend the Taking Responsibility Program which was recommended to him by a Family Consultant on 23 September 2011.[12] In fact he undertook two programs; one of which was a two part program with each parent participating with an ultimate view to mediation. The father says and I accept that he completed his part of the program and the mother declined to complete her part.
[12]Child Dispute Memorandum of Ms U
When the father started to be concerned about Mr N, the main step he took was to talk to the children and tell them that they should feel free to talk to their teacher, their principal, himself or his partner if they were worried about anything. I accept that he did not tell them why he had said that and they did not ask. There is no evidence to suggest that he pressured the children or planted ideas in their head about the complaints they have made. Rather, the children have been inclined to talk to their teacher and in the case of L, to the barber when he had his hair cut.
I also consider that the father is a loving father to F and feels immensely guilty that he did not provide all the evidence that he could have to detectives investigating F’s experience of alleged sexual misconduct by the mother’s father. He is hopeful of restoring his relationship with F, who has a loving relationship with the four boys and a good and friendly relationship with Ms D’s son E. F also retains her relationship with her paternal grandmother.
F blames her father for not having done enough to ensure that Mr Hollis was punished for what he had done to her. My impression is that the father has punished himself very much over the years for having given in to the mother’s statement to him that the relationship would be over if he told all he knew about relevant photographs taken by Mr Hollis to detectives. The father compromised and gave the detectives as much information as he could in the hope they would work it out themselves.
However this situation is interpreted, it could not be said that the father has been indifferent to the impact on F of Mr Hollis’s actions, or of his own decision making on this topic.[13]
[13]Affidavit of father filed 07/02/2014, pars 17-30 inclusive
The father learnt at one of the four JIRT interviews in 2013 that Mr N had been charged with sexual assaults on his step-daughter M. The father was hugely distressed when he spoke about this matter, as he had been speaking about his daughter F. My overall impression is that he has become overwhelming fearful and sad about what has happened to all five of his children.

Ms Jaeger, paternal grandmother

Ms Jaeger is aged 63 and is a healthcare worker. She has had regular contact with all her grandchildren, usually every two or three weeks. She lives some distance from Newcastle.
When her youngest grandson W told her that Mr N had touched his doodle and that that’s why it was sore, she came to a decision that she would report the matter. She said that neither her son nor Ms D had told her anything about Mr N potentially touching the children inappropriately, and when asked whether she had any inkling why W had this particular problem, she said both quietly and firmly, “No” and that although there had been discussion about whether or not the matter should be reported to police, she said, “It was my own decision to report it to the police”.
Ms Jaeger also said that she had been concerned about the children telling them they had been smacked or “whopped” (with a stick) by their mother and Mr N, not so much because of the actual hitting, but because the step-father was involved in it.
My impression was that Ms Jaeger has no philosophical objection to physical discipline of children; her answer was, “It depends on how, when and by whom.” Had it been their mother smacking the children, Ms Jaeger would have had nothing to say. It seems to me it was her concern that the mother was permitting corporal punishment for young children by their new step-father.
Ms Jaeger was a quiet calm witness, who clearly has a good relationship with her son, his new partner and all five of her son’s children. Her ongoing presence in their lives will undoubtedly be a benefit to them.

Ms D, the father’s partner

Ms D is the father’s partner; she is aged 42. She and her son E have been living with the father since the end of August 2013, about six months. She gave up her paid employment in an administration role with a government agency in order to assist the father with the care of the children until these final proceedings are completed. It is a considerable commitment that she has made. It is her intention to return to fulltime work if the children cease to live with their father, but to negotiate with her employer reduced days and hours, two to three days of work at least until W commences school in 2015 if the children stay with their father. I do not doubt that Ms D is committed to the father and to all four of the children.
It is apparent that she approached the complaints of the children in a structured and methodical way, keeping a record of remarks and complaints made by the children about incidents in the mother’s home and their own feelings. It was Ms D who generally made the reports to the Department. She also was the one who prepared the affidavits filed by herself, the father and his mother in July 2013.
To some extent the thoroughness of her work in that sense, is probably a reflection of her training in an administration role. She clearly made an error which was taken up by the mother, where in par 24 of her affidavit, she relates events occurring on 1 June 2013 which logically must have occurred prior to 19 May 2013, when those matters were reported to police. The original mistake was made in the July affidavits and was carried through and repeated in February affidavits.
Ms D acknowledged that she had thought that was the correct date then, but that she had made a mistake. Since there was nothing to be gained in terms of these proceedings, I accept that it was an error which remained undetected.
Ms D was taken to a number of occasions where her detailed version of events differed to some extent from the version which was recorded in Police or Family and Community Services’ notes. Again, there was no particular advantage to be gained by the omissions that were raised, either in the Family Law proceedings or in reports to third parties.
My impression is that Ms D was truthful when she said that she had hoped that the children had not been abused in the mother’s household, but she does believe that they have been. That appears to have led to anxious inquiry by herself and the father, based on concern for the children and it is quite possible that the children gained the impression that complaints about their mother’s household would be positively received.
However there is no evidence that satisfies me that Ms D, or indeed the father, have fabricated events nor have they gone on from fabrication to teach or coach the children to repeat those statements.
I also take into account that there is no complaint made by the mother or her partner that the children have made derogatory remarks about her or that there has been any disruption or discouragement of their loving relationship with her. That situation is positive about the extent to which the father and Ms D have protected the children from their fears and have supported them in their relationship with their mother, although not Mr N. At worst Ms D could be said to be over vigilant, however she has also been a loving and concerned step-mother who, on the evidence of the father, has been the first port of call for confidences by the children.
Having heard the children’s reports and complaints, Ms D became a careful observer of every aspect of the children’s presentation. However I consider that she remained an accurate reporter and did not stray into exaggeration or alteration of what she was told.
For instance on 5 August 2013, there was a conversation between herself and J on a Monday evening at the kitchen table. He was described as looking sad and he confided in Ms D that he missed his mother. She was sympathetic and confirmed that she was sure that he did miss his mother. The conversation led on to a revelation by J that he had seen Mr N on the previous weekend. This was the first weekend after the children had moved to live with their father and was conditional upon them not being brought into contact with Mr N.[14]
[14]Affidavit of Ms D filed 03/09/2013, pars 34-37
W is said to have entered the bathroom to have his bath. Ms D observed that W’s penis was red and she asked him about it:
Q: [W] is your doodle sore?
A: Yes but not really sore now.
W went on to make a disclosure about Mr N touching his penis and hurting him. Ms D then asked J whether Mr N had ever touched his doodle and J gave a demonstration of what he said had happened, which appeared to be Mr N flicking his penis with his index finger. J went on to say that his mother had been present when Mr N touched his penis and that she had said to Mr N, “Don’t do that [Mr N], it’s not very nice”. J went on to say that that had not happened on the weekend just gone, but previously when they had lived with their mother.
W was present through this conversation and Ms D asked him:
Q: Did you see [Mr N] at mum’s this weekend?
A: Yes.
There is no doubt that W is likely to have been influenced by what he had heard and by Ms D’s warm approval of J telling her what he did.
This is an example of Ms D not simply allowing the children to speak when they wanted to, but actively pursuing a line of questioning. It might have been easier for the children if she had adopted the former practice, but I conclude; first that her motivation was one of concern for the children and second that she accurately reported.
After the weekend of 8 to 10 November 2013, the weekends for the children with their mother ceased. This was a decision taken by the father in consultation with Ms D, probably with a combination of legal advice and advice from the Department.
After that weekend, W and J advised Ms D that they had seen Mr N with their mother at McDonalds and that their mother had said:
[Mr N] would strap us if we told you and we wouldn’t see her for a long long time.
B was reported to be teary and sniffling as he said those words.
J went on to report that Mr N had hit him and W with a strap when they were on the trampoline. There was conversation it appears every day between Ms D and one of the children, where they reported Mr N swearing, hitting them and reporting that he had told them to hurt their father and Ms D, that J had agreed that he would, but confided that he had been lying. I have the impression that the children were feeling under pressure by this time to make more complaints.
I accept the position taken by counsel for the mother that J reporting that Mr N was going to “make a fire ball out of rocks and make a fire on it and shoot it out of his animal gun at you and dad” might have been something that J invented, rather than being a repeating of something that an adult had said.
I also accept the evidence of Ms D that she did not know what to make of it. The suggestion was put to her that she simply could have discounted such a story and let it go past. I do not consider that J’s statement was included by Ms D because she necessarily believed it, but because she was persisting with listening to and recording all that the children said about their mother and Mr N.
Ms D gave the impression that she was offended by a line of questioning that she was searching for evidence at the expense of the children’s stability. It seems likely that the anxiety in the household was quite high in November 2013. When Ms D was asked about the fact that the children did not see their mother on Christmas day because no agreement could be reached about how that could happen, she agreed in a heartfelt way that it had been awful for them not to see their mother. She went on to say, “It is awful, the whole thing is awful”.
It seems to me that that captured Ms D’s situation. She had had no personal experience of children being abused or molested and having committed herself to assisting the father, she did not step back.

Children reference to guns

Ms D related a conversation that she had with L and B on 19 November 2013:
[L]:                [Ms D] [Mr N] has a gun.
Ms [D]:         Have you seen it?
[L]:Yeah, we were all on the quad with [Mr N], I was sitting on the front of the quad and [Mr N] tied the gun onto the back of the quad. He said we would get strapped if we told you or dad”.
Ms [D]:         Did you see the gun the last time you saw mum?
[B]:               No, it wasn’t in the shed where it used to be.
[L]:No, I didn’t see it last time I was in the shed playing with fishing gear and it wasn’t there.
This is a matter of some significance. The police arrived at the mother’s home on 26 November 2013, asking about firearms. Mr N took the police and revealed two rifles; one of them shortened. He conceded he did not have a gun license because it had been revoked. He said he had found the guns six months before. The mother in her cross-examination was adamant that the guns were at all times kept in the shed which was kept locked and:
There is no way that the boys could have got hold of the guns or known of their existence.
She described herself and Mr N as “baffled” as to how they knew they were there.
The mother said that Mr N had found the guns in the old house that was being renovated six months previously and had put them away in the shed.
On the balance of probabilities, the children did see the guns and it makes the story told by L and B in November, most concerningly likely to be true. There were guns. If the children were unable to access a locked shed, there must have been another way that they became aware of them.
The mother’s explanation of how the police were alerted to guns at the house was that Mr N told her that the children had disclosed it in an interview.

Role with the children

Ms D was asked about the enrolment form for W, the clear inference being that she had misrepresented herself as a parent. I do not accept that she did. The enrolment form[15] could more properly be described as a re-enrolment form. It was not filled in in its entirety because W had already been enrolled at the school and they required a re-enrolment when there was a change of residence for him in mid-2013.
[15]Exhibit 11
Ms D said that a teacher at the school Ms V had told her to fill in the form with her name because they the pre-school required that for her to be able to collect the father’s children. I accept that Ms D would have said that she was not the mother, although the pre-school would surely have known that. I also accept that she was advised that the mother would have to fill in a separate form. I do not consider that Ms D was misrepresenting herself to the pre-school in any way.
Ms D has a genuine commitment to the father and the children. In my view she will be a helpful source of loving support, sensitive to the boys’ need for a relationship with their mother.

Ms Hollis, the mother

The mother is 39; she was seven months pregnant at time of hearing. She was married to Mr N about six weeks before this hearing commenced. Throughout her evidence she displayed unwavering commitment and loyalty to her new husband.
She presented as calm and composed as she had been for the two and a half days prior to her entering the witness box. She had shown no signs of any particular emotion, including during the three hours when JIRT interviews were shown in Court, other than smiling with pleasure watching her children.
I did not get the sense that she was exercising restraint of her emotions, rather that she had reached a point of calm acceptance that she had no control over the final outcome.
The mother gave some extraordinary evidence, ranging across minor incidents to matters of significant concern.
At times the mother gave accurate answers, but I ultimately concluded she was not a truthful witness. Her motivation throughout her evidence appeared to be to promote and protect the image and reputation of her new husband. She did so at the expense of her own credibility.

The giving of lollies

In his JIRT interview on 4 February 2014, L described being awake at night when Mr N came into the bedroom of the four boys. He sat down on W’s bed, pressed his hand onto the bed covers over W’s genital area, then offered him a lolly which W accepted. L heard a couple of remarks by Mr N which W did not respond to, but he ate the lolly.
In her evidence-in-chief, the mother said that lollies were occasionally distributed to all the children at that time of day, that is, after they had cleaned their teeth, prepared for bed and gone to bed to sleep; that both she and Mr N had on occasions distributed lollies to the children on a good behaviour day. It was an unusual story. The most credible explanation for this evidence being given was recent invention to explain L’s assertion that he had seen Mr N come in and sit on W’s bed and give him a lolly.[16]
[16]JIRT tape 04/02/2014

Communication between children and their father

There are references to difficulties contained in the print-out of text messages which passed between the parents between March 2012 and September 2012.[17]
[17]Exhibit 16 – print out text messages
On 10 September 2012 the father sent a text:
Hi can you please ensure all four boys are available for phone contact as per Court orders [the mother’s given name].
and on 13 September 2012:
Hi we have Court orders and I have a right to speak to all four boys between 5 to 6. Not just [J] for a minute. You have no right to hang up on me when I ring to talk to the boys as per Court orders.
and on 14 September:
Important I speak to our sons Monday……
At the same time there was some conversation between the parties about some looming Christmas holiday contact.
On 16 September 2012 the mother sent this text to the father:
Please stop sending abusive and inappropriate messages and limit all communications to the children’s health, wellbeing or other relevant issues to do with the boys.
I accept the submission by counsel for the father that there is no abusive or harassing message in all of those that were tendered into evidence. The mother herself accepted that there was not.

Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

The children have the loving support of their father and paternal grandmother. The father has the capacity to meet their needs, including their emotional needs. He may be constrained financially from getting the particular help such as speech therapy and psychotherapy for the children.
The mother has at least presently a reduced capacity to meet the needs of the children. She has not given them priority. Understanding how much they love her, she has chosen to stand behind her husband and be supportive of him, despite what he has done to her children.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant

The children are four boys aged nine, eight, five and four. They are travelling long distances to school and W is missing out on pre-school. They urgently need to be enrolled in schools close to their father’s home. W needs to go to pre-school and all the children will need some assistance to cope with their reaction to the change being permanent.

Section 60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

The father has taken on the responsibility of the children ably assisted by his partner. The children have been safe, well cared for and well loved.
The mother loves the children, but has put pressure on them to conceal the truth of their treatment in her household. She has not put them first.

Section 60CC(3)(j) – any family violence involving the children or a member of the children’s family

There were mutual AVO’s between the parents arising from an angry incident. I am unable to find that either parent could be described as a dominating perpetrator in this matter.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

The children are safe and well cared for in their father’s home.
They have an older sister F, who is angry with their father in relation to events in her childhood, which have been harmful and upsetting to her. F was let down and unsupported by her then step-mother, the mother in these proceedings.
The children have presumably now, twin baby sisters in the mother’s household. They will be interested to know about them, although it may be difficult to spend very much time with them.
All of the children will require ongoing support at each stage of their growth and development as they reflect on the loss of availability of their mother as their primary carer and the reasons for it.
I am satisfied that the father together with his partner will make every effort to provide assistance with the children as they progress and to support the relationship between them and their mother to the fullest extent possible. Unfortunately, that will be limited whilst ever the mother maintains her relationship with Mr N.
For all of these reasons, I consider that the safety of the children compels residence with their father and an order is made to that effect.
Given the intractable conflict and lack of communication which comfortably rebuts the presumption of equal shared parental responsibility, the father should have sole parental responsibility. Orders are made for time between the children and their other parent to the maximum extent consistent with their safety and welfare.

I certify that the preceding three hundred and thirty-nine (339) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 May 2014.

Associate:

Date: 30 May 2014

[2014] FamCA 347

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