Josephs and Searle

FAMILY COURT OF AUSTRALIA

JOSEPHS & SEARLE

[2010] FamCA 1009

FAMILY LAW – CHILDREN – Parental responsibility – Where father sought to reinstate contact with children – Where mother alleged sexual abuse – Allegations of sexual abuse subsequently withdrawn – Finding that children are exposed to unacceptable risk of verbal abuse and physical violence by the father – Where parties have hostile parental relationship – Where father diagnosed with personality disorder - Children unable to establish a meaningful relationship with the father - Where parties unable to communicate – Presumption of equal shared parental responsibility is not in children’s best interests – Mother to have sole parental responsibility – Exposure of children to unacceptable risk of verbal and physical violence by the father – Poses risk to children’s relationship to the mother – Children will not spend time with father

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 61DB, 64A, s 64B, 65AA, 65DAA,
Family Law Rules 2004 r 21.02

Goode and Goode (2006) FLC 93-286
Johnson and Page (2007) FLC 93-344
M v M (1998) 166 CLR 69
Marriage of A (1998) FLC 92-800
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

APPLICANT:

Ms Josephs

RESPONDENT:

Mr Searle

FILE NUMBER:

(P)NCC

2503

2008

DATE DELIVERED:

11 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

6, 7, 8, 9, 15 and 16 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hollins

SOLICITOR FOR THE APPLICANT:

Rod Powe Lawyers

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr I Duane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That all prior orders made in relation to the children G and M both born … May 2003 are discharged.
Ms Josephs (the mother) shall have sole parental responsibility for the children.
The children shall live with the mother.
The father is restrained from telephoning or approaching the children, including any school attended by them or their home.
Notwithstanding the above order the father may send the children cards and gifts for their birthdays and Christmas.
The mother shall send the father copies of the children’s school reports and notice from the children’s school of the opportunity to purchase school photographs.
The mother shall notify the father, in writing, as soon as practicable of any hospitalisation of a child which is of a serious nature.
The mother is restrained from denigrating the father or members of his family in the children’s presence or permitting any other person to do so.
Within 28 days the mother shall obtain a referral to a psychotherapist with a view to commencing a program of psychotherapy which is aimed to address the matters raised in relation to the mother by Dr R in her report dated 17 March 2010.
The parties may provide to any health professional attended by them or the children a copy of Dr R’s report referred to above.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders
All outstanding parenting applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2503 of 2008

MS JOSEPHS

Applicant

And

MR SEARLE

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings which concern the parties’ two children, G and M (“the children”). The children are six year old twins. Both children live with Ms Josephs, who is their mother. The mother and Mr Searle, who is the children’s father, separated when the children were six months old. After the parties separated the children remained in the mother’s care and for the following two to three months, regularly spent time with the father, with him visiting them most evenings. Because of the mother’s concerns about the father’s aggression, she stopped making the children available to him. The father did not see the children again until about 19 months later when he commenced weekly supervised contact at a contact centre. This continued for the best part of two years until, in the context of a final hearing, the parties agreed the father would begin unsupervised time which was to increase incrementally. For about 17 months, the children spent unsupervised time with the father, until M said something to her mother and maternal grandmother, which they believe indicated she had been sexually abused by the father. The children have not seen him since.
The mother proposed that the children would have no further contact with the father and sought that she have sole parental responsibility. Although when she commenced this application she asserted the father posed an unacceptable risk of sexual abuse to the children, her case expanded to include the notion that the children would be exposed to emotionally abusive behaviour. In addition, that he was a poor role model who would expose the children to attitudes and remarks about the mother and her family which would be psychologically damaging. It was the mother’s contention the father’s verbal abuse was so extreme it was impossible for her to have contact with him, even if indirectly through the children. During closing addresses, the mother said the evidence did not establish and she did not believe the father posed an unacceptable risk of sexual abuse to the children and she abandoned her claim for such a finding. Notwithstanding the mother’s concession, because the sexual abuse allegations had such a significant influence in the cessation of the father’s contact with the children, I shall return to this matter.
The father denied that he sexually abused the children and contended that if the Court and mother were concerned about his verbal aggression, this should be evaluated in context. In other words, he had been sorely provoked by the mother and his conduct about which she complained, was no different to conduct in which she and her mother had engaged. It was his position that if the evidence established the children had been sexually abused, the abuser was either the mother’s father, her former partner and father of her son, or possibly another of the mother’s male associates. In his view, the maternal grandmother is strongly opposed to him having a relationship with the children and has manipulated the mother to adopt the same attitude. It is his belief, that if the maternal grandmother’s influence over the mother could be neutralised, the parties would be able to co-parent the children.
Because of the complex issues, an Independent Children’s Lawyer was appointed to represent the children’s interests. In closing addresses, the Independent Children’s Lawyer submitted it was more unlikely than likely the father had sexually abused the children. Primarily because of the highly conflicted relationship which exists between the parties, which it was submitted was unlikely to improve, the Independent Children’s Lawyer proposed orders akin to those sought by the mother.
This was a difficult and complex hearing. Cases in which one parent opposes the other having any contact with their children always are. However, it was the father’s behaviour during the hearing which makes this case so unusual. When the hearing commenced, the father was legally represented. For about the first hour he conducted himself reasonably appropriately. On a number of occasions he directed sarcastic remarks to counsel for the mother and was terribly amused when he heard counsel for the mother inform the Court that one of her witnesses was in hospital with eye problems. This situation deteriorated at about 11.20 am. At that point, the solicitor appearing for the father was questioning the mother about the first Apprehended Violence Order she sought against the father. He started to talk loudly over the top of his solicitor and then, while packing his bags, said the Court could carry on without him. In a loud voice and tone which was quite menacing, he turned to the mother and called her a “manipulative lying cow”. He continued to shout at her as he walked to the door. As the father walked towards the door, I informed him the hearing would continue in his absence. As the father continued to shout at the mother, she began to cry. He called her a “drama queen”. After he left, I indicated the Court would take a short adjournment. Before the Court adjourned, the father returned. He was warned his behaviour was unacceptable and he faced the prospect that if his poor behaviour continued, he may be charged with contempt of court. As I adjourned and walked towards the exit, the father screamed, “Fucking slut”. Given the tirade of abuse that he had directed towards the mother, I inferred his remarks were addressed to her. The father appeared so enraged I was concerned for the mother’s safety if she departed the courtroom into the small foyer. Space in the Commonwealth Courts at Newcastle is tight and it is almost impossible to keep away from others in the waiting area. After I departed the mother was taken into the judicial area whilst the father departed and the courtroom door was locked. Then the mother was returned to the courtroom where she waited with counsel and the solicitors.
At the Court’s request, the Registry Manager contacted the New South Wales Police and for the remainder of the day two State police accompanied the father.
The father’s solicitor was very distressed by his aggression and it was uncertain whether she could or should continue. The type of discussion the Court needed to have with his solicitor would not have been possible if the father was present in his enraged state. Thus, I reconvened the Court, but excluded the parties. This was to discuss whether counsel considered the matter could continue and, if the hearing was to continue, the arrangements needed to protect the mother and others from the father. The father’s solicitor said she was too distressed to continue and would be, in any event, unable to take instructions from him. No criticism could be or was made of her. The father’s poor behaviour had placed her in an awful position. Without hearing from the father, I granted his solicitor’s application for leave to withdraw. Because of her distress, I accepted unreservedly that she did not feel able to tell to the father she would no longer represent him. Accordingly, she departed with responsibility for delivery of that message being accepted by the Court. It was agreed with counsel who remained, that a separate court would be established on another floor, from where the father could participate by video link.
Without the mother being present, the father was recalled and these logistics were explained to him. The father was advised he was not to return to the courtroom or the level upon which it was located, unless I told him he could. He was informed if he breached either of those directions, he would be removed from the building and the hearing would continue without him. Again, the father was warned about the consequences of abusive language and attempts by him to disrupt the hearing. He was reminded that I could take his behaviour during the hearing into account. I pointed out to him that it was a plank of the mother’s case that she and other members of her family had been subjected to serious verbal abuse from him. Thus, he might reflect upon how he would address a submission that his conduct during the hearing in effect corroborated her evidence.
The hearing resumed after lunch with the father attending via video link from a different courtroom. The police presence had a calming influence on him and although there were interjections, cross-examination of the Court expert proceeded without intolerable disruption. The following day police were unable to attend. As requested, the father went to the allocated courtroom and did not come onto the floor where the mother and the hearing court were located.
Day two saw the mother return to the witness box. Her counsel was given leave to ask the mother questions in chief. These related to events which occurred outside the court building at lunch time the day before. As the mother tried to answer questions, the father shouted across the top of her and made it impossible for her or anyone else to speak. He asserted, “the Josephs team” had had a bad day in court the first day and objected to the mother being able to give evidence about what she said was abuse he directed at her and her mother the day before. Again, the father was warned about his behaviour for which he apologised and the hearing continued. It was the mother’s evidence, that as she and her mother walked past the father, he called them a “pack of fucking sluts”. To the maternal grandmother he said, “You, you fucking slut, it was your ex who interfered with my daughter”. I am satisfied the father spoke these words.
The hearing continued, with the mother cross-examined by counsel for the Independent Children’s Lawyer for the remainder of the day. On a number of occasions the father interjected with comments such as, “these fucking lies” and spoke over the witness. His interjections made it difficult for the witness and for counsel who was cross-examining to concentrate. On the video, the father was seen pacing up and down and pointing determinedly at the court officer. The point was reached where the father’s ongoing commentary and interruptions were such that the hearing needed to end or another strategy needed to be adopted. Because of the serious issues that required determination, I was concerned with trying to finalise the hearing with the benefit of hearing the evidence tested and with submissions from all parties. Counsel and the mother appeared to be similarly motivated and there was no application to stop the hearing. Thus, the father was advised that if he interrupted again I would mute the courtroom where he was located. The effect of this would be while he could see and hear the hearing, he would not be heard. When he interrupted again, this strategy was adopted and it enabled counsel for the Independent Children’s Lawyer to continue cross- examination of the mother without interruption.
Day three saw the father cross-examine the mother. This took place by video, with one screen turned aside after the mother requested it. Self evidently, the courtroom where the father was located was not, during his cross-examination, on mute. The father’s questions were complex, long, often difficult to understand and too often he used an aggressive tone. So that it is clear, the father adopted a conversational yet firm tone with Dr R and Dr L. Under the guise of questioning, on occasion, he harangued the mother. When he reduced her to tears, he called the mother a “fucking drama queen”. Many of his questions would be better described as statements or rhetorical in nature. However, where it appeared there was possibly a point to the father’s statements, with his permission I rephrased these and turned them into questions for the mother and other witnesses. Far too often, the father interrupted the mother and her witnesses and made it almost impossible for them to answer. This was particularly notable when her answers were not to his liking.
After the mother’s evidence was completed, her counsel called Mr A. He was a process server who said he had been seriously assaulted by the father when he attempted to serve papers related to these proceedings. When the father, during his cross-examination of Mr A was unable to obtain a concession, he said loudly to me, “This fellow is an out and out liar, piss him off”. Before the witness left I thought I heard the father say, “Fucking lying jerk”. I asked the father whether I had heard him say those words. The father denied saying them. He was reminded he had been advised although he was in another courtroom, that courtroom was being recorded and his remarks and behaviour could be taken into account. Again I asked him what he had said and, in the face of his refusal to respond, I informed him I would listen to the transcript. This I did and the transcript records that the father called Mr A a “fucking lying jerk”. The father’s denial to me was a deliberate lie. As the witness departed the father said, “Bunch of fucking lies that was”.
The maternal grandmother was the next witness. The antipathy between the father and her was apparent. As she gave evidence, the father was obviously agitated and muttered, “fucking under oath you old bag”.
On day four the father’s evidence commenced. The courtrooms were rearranged and the mother went to another floor where she participated by video link. The father joined the courtroom where counsel and I were located. When he commenced his evidence, he was calm and focused. However, after cross-examination by counsel for the mother began, the situation deteriorated. Repeatedly, the father was argumentative with counsel and played word games in an obvious attempt to avoid answering questions. He answered questions with questions. At one stage he told her to “sit, listen, take notes”. Counsel for the mother’s tone was gentle and her questions were generally easy to understand. There was nothing in the way counsel for the mother conducted her cross-examination which was provocative or inappropriate. Counsel was equipped with a large volume of material produced under subpoena, which her questions suggested related to the father’s behaviour at the contact centre and abusive behaviour by him to others. At one point, the father gave what appeared to be an insightful apology for his previous poor behaviour and said he was now a different person. His point being his past poor behaviour was something of the past and, in the face of this concession, it would be inappropriate for counsel to continue to question him about it. Notwithstanding the father’s objection, I ruled in favour of counsel being able to continue her line of questioning. Time and again the father was unresponsive. On a number of occasions he was overcome by emotion, slumped in the witness box and appeared unable to continue. He rallied.
Twice the father handed the court officer letters addressed to me in which he sought to explain his dilemma and distress. They were read by me then, by agreement, placed in a sealed envelope and made exhibits.[1] In relation to both he sought the Court’s advice about whether it would be best for the children if he stepped out of their lives while they were children. There followed lengthy discussions initiated by the father in which he appeared to be able to contemplate the damaging effect on them of their parents’ highly conflicted relationship. The father sought and was given the opportunity to reflect upon these matters. As would be self-evident it was the father’s decision to continue to press for time with the children.
[1] Exhibits ‘D’ and ‘L’
This case was listed for four days. Towards the end of the fourth day it was apparent additional hearing days were required. During discussion about how many additional days were required the father started to cry. He said he would be unable to endure more cross-examination and implored the Court to end the hearing. It is noteworthy that with the family consultant and Dr R he also became distressed when he was questioned by them. It was apparent that while he was able to cross-examine witnesses at length and, on occasions to good effect, he was unwilling to submit to similar scrutiny. In the event, as there was no agreement about final orders it was necessary to continue the hearing.

The hearing continued for two days the following week. For the balance of the hearing, the mother remained in the court room on a lower level. When the hearing resumed for the final two days, the father’s conduct was somewhat improved. During this period, he was questioned about his courtroom behaviour. He explained he wanted to demonstrate his pain and outrage and denied he has an explosive or abusive personality. The father rejected the expert evidence he has a Personality Disorder. According to him, he is able to control his behaviour and had merely wanted to show Dr R, the family consultant and the court how distressed he has been. As I understood the father’s evidence it was that he attended this hearing with the intention to demonstrate his pain and outrage by behaving in the abusive and threatening manner described above. His point being he can turn this type of behaviour on and off at whim. The father demonstrated no insight, if this is correct and his behaviour was contrived for effect, that such an approach was unlikely to assist his case and would probably provide corroboration of the mother’s claims about his abusive treatment of her. The father does not consider this is symptomatic of a Personality Disorder, but rather behaviour which those who have offended him should accept.
The father’s behaviour during the hearing is a matter to which I will return. This is because it raises issues about his parenting capacity, his suitability as a role model for the children, the effect on the children’s relationships with the mother if they are exposed to attitudes about her of the type demonstrated in the hearing and associated risk issues.
Before leaving this aspect of the matter it is appropriate to observe the father made the hearing extremely difficult for the Court, counsel and witnesses. His abuse and interruptions clearly made it difficult for them to maintain focus and for the witnesses to give evidence. The father is a person of at least average intelligence and I do not believe he was unaware his actions were likely and obviously had this impact. In the circumstances it is appropriate to not be hypercritical in the evaluation of the evidence given by witnesses called in the mother’s and Independent Children’s Lawyer’s case. In my view, they laboured under unusual difficulties yet still tried to give an honest and coherent account of the facts under consideration. The only qualification to this observation relates to the maternal grandmother and the evidence she gave about a visit made by members of the maternal family to the father’s home early in the parties’ relationship.

Background facts

Unless I have stated differently throughout these reasons, the balance of probabilities will determine findings of fact. Section 140 Evidence Act 1995 (Cth).
Mr Searle (the father) was born in 1974.
Ms Josephs (the mother) was born in 1976.
The parties met in late 2002 and quickly commenced a romantic relationship. By October 2002 the parties began living together. Initially they lived with the maternal grandmother. In the meantime, a home the mother owned at K was renovated.
According to the father, on Christmas Day 2002, the mother told him she had been sexually abused by her father. The mother denied this conversation or that she has been sexually abused by her father.
G and M were born in May 2003. Within days of the children’s birth, they and the parties moved into the K home.
When the children were born the father worked fulltime as a storeman. He was made redundant in August 2003. At about this time the mother returned to work part-time. She works in healthcare. Initially the mother worked four hours Thursday and a Friday night shift. Whilst she was at work the father cared for the children. Not long after, the mother took on an extra shift.
In October 2003, the father obtained employment as a salesman. This was a fulltime position in relation to which he worked five days a week between 8.00 am and 5.00 pm. When the parties’ work commitments clashed, the maternal grandmother cared for the children. Indeed, from when the children were born, she was actively involved in their care.
In late October 2003, the mother asked the father to leave. Documents had arrived which suggested the father was in debt and may have been gambling. She did not accept his explanations and there were heated discussions about the father’s financial situation. The mother told the father if he “sorted things out” she hoped they would reconcile. He too wanted their relationship to continue.
For about six weeks after separation, by agreement, the father came to the home daily. During the week he was there between about 5.30 pm and 6.30 pm and on weekends he spent about five hours at a time plus overnight if the mother was at work. One weekend the parties spent the weekend together in Sydney.
According to the mother, as time passed, the father became more aggressive. Prior to their separation there had been no physical violence. During their arguments the father swore at her and used terms such as “fucking liar”. The mother used similar language. However, after they separated he began to call her names such as “gutless, leg opening slut”, and said things like “You’re mum puppeteers you with her hand up your arse”.
By about mid December 2003 the mother decided the parties’ relationship was over. It would appear she told the father there was no prospect they would reconcile on about 17 December 2003.
Before Christmas Day 2003, the father’s sister, Ms E, from whom he is now estranged, contacted the mother. She gave the mother a story about children’s car seats and intimated the father was contemplating taking the children. She later contacted the father’s treating psychologist and because of his behaviour, expressed concern for his welfare and others.
Although the tensions between them were escalating, by agreement the father came to the mother’s house on Christmas morning 2003 to spend time with the children. Mid-morning he took the children for a walk. It was a very hot day and while they were gone the mother panicked. She was afraid the father might not return the children and concerned they might become distressed by the heat. The mother drove around trying to find them and, when she was unable to, went to K Police Station. Police told the mother to return home and wait. Police arrived at the mother’s shortly before the father. So that it is clear, the father returned the children without Police intervention. The children were not distressed and without disharmony the father left.
Without notice to the father, on Boxing Day the mother took the children to northern New South Wales where they stayed with Mr N. Her purpose was to put as much distance between herself and the children to the father as she could manage. In this period the mother was receiving daily telephone calls from the father and was worried he might try to take the children. She was not at that time in a relationship with Mr N.
On 12 January 2004, the mother applied for her first Apprehended Violence Order for protection from the father. Her application was based upon his verbal abuse made during the daily telephone calls the father had been making to the mother.
The mother’s Apprehended Violence Order application came before a Local Court on 15 January 2004 and then 29 January 2004. An interim Apprehended Violence Order was made. While the parties were at court on 29 January 2004, there were discussions, conducted by their lawyers, in relation to the father’s desire to spend time with the children. He had not seen the children since Christmas Day 2003. Agreement was reached the father would spend time with the children at the mother’s home in the presence of Ms S. Unfortunately, the agreement was not documented and the parties disagree about whether the mother was required to vacate her home while the father was present.
In any event, arrangements were made for Ms S to supervise the children’s visit with the father on 31 January 2004. By arrangement, she arrived at the mother’s home at about 6.50 am. The father arrived at 7.00 am. The children were having breakfast and, at the mother’s suggestion, the father took over feeding them. She had a shower and on her way to her bedroom walked through what the father said was “his space”. That is between him and the children. The mother had already asked him to desist from going into the bedroom. Within seconds of the mother entering her bedroom and closing the door the father, who was holding one of the children, barged in. The door banged the mother’s arm. Immediately an argument erupted with the parties yelling at each other. The mother called the police who arrived fairly promptly and spoke to the parties. The father started yelling at the mother and was directed by police not to swear. He became more agitated and shouted abuse towards police. Police became concerned for the mother’s safety and the father was arrested. He was driven to the local Police Station where he was entered into custody. The father was refused bail and whilst being transported to another police station, the police wagon collided with another car. The father suffered soft tissue injuries, banged his head and was cut. He was treated in hospital, and then returned to custody.
In relation to the incident on 31 January 2004, the father was charged with breaching the interim Apprehended Violence Order and common assault. The assault related to the mother’s claim the father deliberately slammed the bedroom door into her arm. Although the father barged into the mother’s bedroom almost immediately after she entered, he could not have known she was near the door. Thus, while his actions were reckless, he did not intend to hurt her. It would seem he was subject to a bail condition that he resides in Z. Since then he has lived at Z with his mother.
The mother returned to northern New South Wales with Mr N and contact between the father and children stopped. The father, however, continued to telephone the mother.
On 12 February 2004, K Local Court continued the interim Apprehended Violence Order. The order included the standard statutory provisions, as well as restraining the father from coming within 50 metres of the mother’s residence.
On 20 February 2004, the mother received a series of telephone calls from the father. In these, he called her “gutless brain dead slut”; and “cheating, leg opening slut” and similar epithets. In one call he said to her “I will sort you out, on Monday”, or “by Monday”. The mother contacted police and told them she was afraid of what might happen. In her statement dated 21 February 2004 she said: “I felt threatened that he may harm me or my partner, [Mr N] and my children, [M] and [G].” Although the mother denied it, by then she was in an intimate relationship with Mr N. Police charged the father with contravening the Apprehended Violence Order.
In early March 2004, the father was assessed by Dr O, who is a Psychiatrist, as having symptoms of post traumatic stress. He recommended the father attend supportive psychotherapy, that his mental state be monitored and he continue to take anti-depressant medication.
Commencing on 8 March 2004 the father began the first of five consultations with Ms F, who is a Clinical Psychologist. The final consultation occurred on 4 May 2004. Dr R accurately summarised Ms F’s notes of her consultations as follows:
[The father’s] answers to the Depression Anxiety Stress Scale (DASS) placed him in the extremely severe range for depression, anxiety and stress. Ms [F] commented on the possibility of the extremity of the DASS scores reflecting “a cry for help (or) he may have attempted to portray himself in an especially negative manner as he has expressed intentions to pursue legal action against the police and other organisations.
Notes indicate [the father] had suicidal thoughts (and taken actions), was binge drinking weekly, had been abusive to his mother and was banging walls, slamming doors and hitting his head. His anger, lack of compliance and defensiveness were commented on and Ms [F] terminated appointments with him.
In March 2004 the mother returned from northern New South Wales and, with the children, moved in for a couple of weeks with her mother. The mother and children then returned to her home at K.
The parties were at K Local Court on 25 March 2004 in relation to the various Apprehended Violence Order applications and the interim order for the mother’s protection was extended. The mother was accompanied by Mr N. As they walked past the father’s mother, she growled. The father shouted at Mr N, “You’re dead maggot, you’re dead.” The father’s mother tried to lead him away. The mother and Mr N went to the police station. When they returned, for about two to three minutes the father loudly abused Mr N. The mother thought the father appeared enraged and she was frightened. The father was charged with breaching the Apprehended Violence Order.
The father saw his General Medical Practitioner on 25 March 2004. His doctor assessed the father as being “...suicidal with extreme anger and aggression[2]..”. The father was reported as having made “...certain threats to suicide including notes to his mother and indicated to me that he wanted to kill the partner of his “ex” who he blames for the loss of his partner and the lack of access to his daughters. He is convinced that the other man is interfering with his daughters and feels trapped by the AVO and bail conditions...”. The following day the father was admitted to the psychiatric unit at a regional Hospital. He remained in hospital until 6 April 2004. While in hospital he left the ward three times without permission. On two of these occasions, the father went to a hotel and returned late at night heavily affected by alcohol. The hospital notes show the father was often hostile, agitated, emotionally labile and aggressive. Upon discharge, he was offered ongoing outpatient psychiatric assistance,[3] which he declined.
[2] Exhibit ‘X’
[3] Exhibit ‘W’
On 19 April 2004, the father was charged with two counts of common assault in relation to which he was placed on bail.
On 22 April 2004, the father filed an application in the Federal Magistrates Court for orders to spend time with the children.
On 7 June 2004, an order was made for the father to have supervised time with the children at Court and for a family report.
The father saw the children at Court on 14 July 2004. By chance, the parties saw each other in the street. The father pointed his index finger at the mother and mimicked firing a gun. The mother reported the incident to Police.
On 13 August 2004, the father was convicted of contravening the Apprehended Violence Order and he was sentenced to a s 9 Bond for 12 months. In relation to the 31 January 2004 incident, he was ordered to pay court costs and the matter was dismissed pursuant to s 10.
On 20 August 2004, the Federal Magistrates Court ordered that the father have supervised time with the children at Rainbows Contact Centre one hour per month. The mother contacted Rainbows but the father did not. He considered the amount of time inadequate and that it would have been unsettling for the children and emotionally difficult for him.
In late 2004, the mother commenced a relationship with Mr U. Initially Mr U moved into the mother’s home at K, which, not long after, she sold. The mother and Mr U jointly purchased a home at S.
On 25 February 2005, the father was convicted of both assault charges laid on 19 April 2004. He was fined and placed on a 12 months, s 9 Bond.
In July 2005, the Federal Magistrates Court ordered that the father have supervised time with the children at Rainbows for two hours each Sunday.
The father and children began supervised visits at Rainbows in about August 2005. Thereafter the father regularly spent time with the children in accordance with the orders. This involved significant effort from both parties.
On 8 December 2005, the mother received a letter from the children’s preschool. Staff reported “significant changes” in the children’s behaviour after they commenced visits with the father. G was reported as displaying extremely aggressive behaviour and crying for the majority of the day. M had become “very withdrawn” and reluctant to interact with other children. Staff observed that both children’s development had regressed.
In December 2005, the mother gave birth to her son, J. J’s father is Mr U.
In February 2006, the father filed a Contravention Application. This related to the mother remaining within 500 metres of the contact centre. This application was withdrawn in relation to which he was ordered to pay $500 costs. The costs order has not been paid.
On 26 May 2006, the father was charged with using offensive language in a public place. He was convicted on 26 June 2006.
The mother’s relationship with Mr U ended in August 2006. Together with the three children she moved to another location. They remained living at that property until it was sold in early 2007.
On 14 December 2006, the father was charged with two counts of contravening an Apprehended Violence Order.
In early 2007 the mother and children moved into a property she rented in another town. They lived there until July 2008 when they moved into a property the mother purchased at C.
In late March 2007 the parties reached agreement in relation to parenting matters. These orders were made by consent on the second day of a defended hearing. The orders are set out below:
1.        That by consent of the parties:
1.1Subject to the orders herein the father [Mr Searle] and the Mother [Ms Josephs] have equal shared parental responsibility for the children of the relationship of the parties namely [G] and [M] both born […] May 2003 and shall each consult the other regarding any long term issues concerning the children to include but not limited to education, religion, health and any proposed change in the living arrangements which would make it more difficult for the children or either of them to spend time with each parent.
1.2The said children live with the mother.
1.3The said children spend time with the Father as follows:
(a)For a period of 6 weeks each Saturday commencing Saturday 7 April 2007 from 10.00 am to 4.00 pm with such period to occur in the Port Stephens, Newcastle, or Lower Hunter Valley area in the presence of the paternal grandmother, save on the last of the periods the Father be permitted to take the children to his house at [Z];
(b)Until the conclusion of the 2007/2008 Christmas school holidays and following the aforesaid 6 weeks, each alternate weekend from 10.00 am Saturday to 5.00 pm the following Sunday with the children to be in the same premises between 5.00 pm Saturday and 10.00 am Sunday as the paternal grandmother, with the first of such period to commence on Saturday 26 May 2007;
(c)With the commencement of the 2008 NSW school year:
i.Each alternate weekend from 3.00 pm Friday to 5.00 pm the immediately following Sunday, with the sequence to commence on the first weekend of the school term in each even year and the second weekend of the school term in each odd year;
ii.For one half of each of the school term holidays to be the first half in school holidays commencing in each even numbered year and the second half in school holidays commencing in each odd numbered year;
(d)For the weekend including Father’s Day at such times in 2007 as set out in sub-paragraph 1.4(b) and in subsequent years at such times as set out in sub-paragraph 1.4(c)(i);
(e)From 3.00 pm Christmas Eve to 4.00 pm Christmas Day in each odd numbered year;
(f)Such further period(s) or variation to the above as agreed between the parties.
1.4The aforementioned periods of times of the children with the Father be subject to the following:
(g)The period(s) be suspended from 3.00 pm Christmas Eve to 4.00 pm Christmas Day in each even numbered year, and for the weekend including Mother’s Day and should the children otherwise be with the Father pursuant to the order being the Father have the immediately following weekend after Mother’s Day and each alternate weekend thereafter subject to these orders;
(h)When the children spend time with the Father by virtue of sub-paragraph (d) herein the next alternate weekend be the second weekend following the Father’s Day weekend;
(i)Where the period of time of the children with the Father is to be for the first half of the school holidays the period commence at the conclusion of school on the last day of school in the immediately preceding term in the case of school term holidays (not including Christmas holidays) and in the case of Christmas holidays the period commence at 10.00 am on the first day of the Christmas school holidays;
(j)Where the period of time of the children with the Father is to be for the first half of the period conclude at 5.00 pm on the day that marks the midpoint;
(k)Where the period of time of the children with the Father is to be for the second half of the school holidays the period to commence at 10.00 am on the day that marks the midpoint of the holiday period and the period to conclude at 5.00 pm on the last Sunday of the school holiday period;
(l)That unless otherwise agreed between the parties changeover of the children for time spent with the Father shall occur inside the McDonalds Family Restaurant at […] subject to the following:
i.The Mother be responsible for the delivery of the children to the father at the commencement of the period the father spends with the children and collection of the children from the Father at the conclusion of each period. And where the Mother is not personally present the person affecting changeover on behalf of the Mother be a person well known to the children and the identity of such person confirmed to the father via text message to the mobile telephone service of the Father;
ii.The Father be responsible for the collect of the children from the Mother or her nominee at the commencement of each period and the return of the children to the Mother or her nominee at the conclusion of each period and where the Father is unable to personally attend to such collection and/or return such to be affected on behalf of the Father by a person well known to the children, and the Father to confirm with the Mother the identity of the person by way of text message to the mobile telephone service of the Mother;
iii.The following persons are excluded as being persons to affect changeover in either the absence of the Mother or Father:
·[H Josephs]
·[A Searle]
·[P Searle]
·[I Searle]
·[Ms E]
iv.In the event that either the Mother or Father are accompanied by 3^rd parties at any changeover the Father and/or the Mother shall cause such 3^rd parties to remain in the vehicle, in which the children have arrived or are to be further conveyed.
1.5That each party provide to the other and keep the other informed by way of text message the mobile telephone service and any change to that service.
1.6Commencing on or before 26 May 2007 the parents must attend ongoing counselling regarding implementation of these orders with a counsellor approved or nominated by the Manager of the Child Dispute Services at Newcastle Registry of the Family Court of Australia, and in relation to:
(a)The parents relationship and behaviour towards each other;
(b)The parents communications with the children in reference to the other party;
(c)The communication to the children about any extended family members of either party and/or a parties relationship with any other person with whom that party is having a romantic relationship.
1.6A     Each of the parents must:
a.Contact the Manager of the Child Dispute Service within seven (7) working days to obtain the necessary approval or nomination;
b.Attend the first appointment nominated by the Counsellor;
c.Promptly pay half of the Counsellors reasonable fees; and
d.Attend all subsequent counselling appointments the counsellor reasonably requests.
1.7The parties to confer as to the choice of school for the children and where the parents are unable to agree the decision to be that of the Mother.
1.8The Mother to do all reasonable acts and things to ensure the children or either of them refer to the Father as “Dad” or “Daddy”.
1.9The Father to be restrained from taking the children or either of them to a medical practitioner whether a general or specialist practitioner when the children are with the Father except with the prior consent of the Mother or where such attendance of the children or either is necessitated by the need of the children or either of them for immediate medical attention.
1.10Each party to notify the other as soon as reasonably practicable of any medical emergency involving the children or either of them.
1.11The Mother to notify the Father of any specialist medical appointment for the children or either of them with such notification to be provided to the Father as soon as reasonably practicable and within at least seven (7) days from the day the appointment is made).
1.11A   The Father be permitted to attend any specialist medical          appointment for the children or either of them, and both parties          give all requisite consents to provide for such.
1.12Each party be and is hereby restrained from denigrating the other either to or in the presence of the children or either of them or permitting any other person to denigrate the other either to or in the presence of the children or either of them.
1.13That each party provide such consents and authorities to allow the provision to the other party of any medical report or reports in relation to the children or either of them as requested by or provided to any treating medical practitioner or practitioners.
1.14That each party provide such requisite consents and/or authorities required by the preschool or school of the children or either of them to enable each party to receive such report or reports, school photographs or any other notice or notices relating to the children or either of them and to permit both parents to attend the school(s) of the children for the purpose of attending special events involving the children or either of them and/or to speak to the teachers of the children concerning the school performance of the children or either of them.
1.15That both parties be and are hereby permitted to attend any school functions specific to the children or either of them even where such function occurs during a period when the child or children is or are with the other party.
1.16That each party be and is hereby required to use all reasonable endeavours to ensure the children maintain their social, educational and sporting commitments during each period the children are with that party.

Essentially, the orders provided a graduated regime whereby the father’s time with the children increased incrementally. Initially, he spent time with the children during the day in his mother’s presence. From late May 2007, this increased to alternate weekends of one night duration and, from the start of the 2008 school year, from 3.00 pm Friday until 5.00 pm Sunday, each alternate weekend and half school holidays.
On 19 September 2007, Dr L, who was the children’s general practitioner, advised the mother against sending the children to the father. She was concerned G had recurrent bladder infections, protested about seeing him and developed enuresis after most visits. The mother told her that following their last visit, G reported that the father had asked her to scrub him in the shower with a new loofah, which M had refused to do. There is no dispute G has a history of recurrent bladder infections, or that these commenced prior to the father having unsupervised visits with the children. In other words, nothing done by the father was a catalyst for G commencing to suffer recurrent bladder infections.
Dr L had previously spoken with the father. He contacted her after she wrote to him and advised that G should bathe alone because of her recurrent bladder infections. This related to information she had that the children had bathed with their paternal grandmother. The paternal grandmother has Sarcoidosis, which is a skin condition. The mother and maternal grandmother did not want the children to bathe with her. Dr L said her concern was unrelated to who the children bathed with, but rather that a child with recurrent bladder infections should shower rather than bathe. Relevantly, Dr L, as a mandatory notifier of child abuse, made a written notification about the children to the Department of Human Services (DoHS). I was not surprised to hear DoHS did not commence an investigation. Notwithstanding Dr L’s advice against it, the mother continued to send the children to the father.
On 10 October 2007, the Contravene Apprehended Violence Order charges laid on 14 December 2006 against the father were dismissed pursuant to s 10.
On 19 October 2007, the father’s sister, Ms E, visited the mother and children. That day the children had a follow-up visit with Dr L. The father’s sister spoke with Dr L and told her that, “[G’s] father showers with [G] and is often seen in the house naked.” As I earlier mentioned, the father and his sister are estranged and she has not spent time with him and the children. According to Dr L, the father’s sister, “Expressed worries about inappropriate behaviour.” Dr L’s notes do not record what that inappropriate behaviour was or whether she sought to establish when the father’s sister may have observed the conduct she referred to. That is, was this ancient or current information? In any event, based on the father’s sister’s information, Dr L made another notification to DoHS Helpline. Having regard to the information provided, it is not surprising DoHS took no further action.
Dr L made a third DoHS notification on 28 October 2007. In this notification she wrote:
I am sending a copy of a doary compiled by [G’s] mother [Ms Josephs], dating from 25/9/2005. There are reports of urien burnign, incontinence and vaginal discomfort after visits to her father and of [G] describing intimate contact wiht her father. I felt I should pass this to you. [Spelling errors contained in original]
It is disappointing Dr L did not inform DoHS that G’s urinary tract infections pre-dated the father having unsupervised time with the children. DoHS did not take any action. I infer there was nothing in the mother’s diary, which was indicative of sexual abuse.
On 28 March 2008, the father was charged with contravening an Apprehended Violence Order.
On 10 June 2008, at Z Local Court, the father was convicted of contravening an Apprehended Violence Order referred to above. He was fined $900, ordered to pay court costs and a s 9 two year Bond was ordered. The father appealed against the severity of the sentence.
M had a specialist’s appointment on 15 July 2008 at a Newcastle Hospital. This was during the school holidays and while she was with the father. The father was due to return the children to the mother on 16 July 2008. On 15 July 2008, G remained in Z with the paternal grandmother while the father took M to her appointment. By arrangement, the mother was present. Everything went smoothly until the appointment ended. M became upset and wanted to go home with the mother. The mother followed the father and child to the hospital car park where a loud argument developed. The father called out something like, “Help, help, she’s stealing my child”. The child was clinging to the mother and crying. Hospital staff intervened, separated the parties and called police. Police spoke with the parties separately. The father correctly advised that M was to remain with him until 5.00 pm the following day. The mother told police she would not let the child leave with the father unless the child wished it. Police then spoke with M and after considerable discussion she agreed to leave with the father. She agreed only after she was told the mother would be in trouble if she did not. The police notes report the child “was visibly upset about having to go with her dad and cried constantly.”
During the incident, police informed the father there were two outstanding Apprehended Violence Order applications due to be served on him. The police records show the father became verbally abusive then left. After the parties departed, a nurse who had been with the father spoke to police. She told them she was disturbed by his reference “to a recent news event where a man had killed his three children then committed suicide.” The father said to the nurse something similar to, “I wonder how much he had to put up with from his ex before he did that?’ Police referred the comment to DoHS. The father said the nurse had been supportive and this topic arose naturally. While the nurse may have assisted to calm the situation, her decision to approach police with details of his remarks suggests she considered them noteworthy and sufficiently worrisome to inform them.
In July 2008, the father’s severity appeal was heard at Z District Court. The records show his conviction was confirmed. It is unclear whether the sentence was altered.
The children spent the weekend of 1-3 August 2008 with the father. The mother arrived at the changeover point at about 4.45 pm on 3 August 2008 to collect them. She was accompanied by her partner Mr W and his two children. The March 2007 orders restrained the parties from allowing the maternal grandmother, paternal grandmother, paternal grandfather, paternal grandfather’s wife, or the father’s sister Ms E from conducting changeover in the absence of the mother or father. The point of this order was that none of the listed people could deliver or collect the children in the absence of the parties. The orders also provided that any accompanying person was to remain in their car during changeover. There was thus, nothing in the parenting orders which prevented the mother from bringing Mr W and his children to changeover, provided they remained in her car. However, the father’s mother had an Apprehended Personal Violence Order for her protection from Mr W and the father understood Mr W may have had an Apprehended Personal Violence Order against him. Thus, when the father, his mother and the children arrived and he saw the mother in Mr W’s car, he drove straight out of the car park. The father pulled over on the highway and sent the mother a text message which informed her he was taking the children to Raymond Terrace Police Station from where she could collect them.
As the father drove out of the car park the mother telephoned Raymond Terrace Police Station and gave a description of his vehicle. She explained the situation and then telephoned Z police. Shortly after, Raymond Terrace police telephoned the mother and told her the children were at Raymond Terrace Police Station waiting for her. On her way there, the mother received the text messages sent by the father. The children were pleased to see the mother and left with her. In the car, the children were agitated and troubled by the idea the mother had not been at the appointed place to collect them. That is, they erroneously believed they were taken to the police station to wait for the mother because she failed to attend the changeover point. The mother, father and paternal grandmother all made police reports about the changeover incident.
The following evening, on Monday 4 August 2008, M complained she had a “sore flossy”. Flossy is the child’s word for vagina. She said to the mother, “Daddy touched my flossy”. The mother said nothing to anyone about this.
The following morning the maternal grandmother arrived before the mother left for work. Whilst she was in M’s bedroom she said the child put her finger near her groin and moved her hand up and down near her vagina. The child was dressed and said, “This is what daddy [Searle] done to me”. The maternal grandmother asked M to show the mother what she had done. M repeated her actions. The mother asked the maternal grandmother to take G to school and M to the police. The mother went to work and her mother did as requested. Police notified DoHS and a JIRT interview was scheduled. The maternal grandmother took M to see Dr L. Dr L and Dr Y spoke with M.
Dr Y made a Risk of Harm notification to DoHS on 5 August 2008[4]. The mother sought legal advice and made an application for legal aid.
[4] Annexure ‘M’ Mother’s affidavit
On 6 August 2008, the Local Court made an Apprehended Violence Order of 12 months duration for the mother’s protection from the father.
JIRT interviewed M on 7 August 2008. This was a competent well constructed interview. A DVD of the interview was received into evidence[5]. Unlike the interview conducted by the doctors, in relation to which there is only a précis, the JIRT interview is completely documented. This matter was also raised with the family consultant and Dr R. They both defer to the JIRT interview in the sense this is considered to be the most contemporaneous and thorough interview. When they spoke to the children their recollections were hazy and memories almost certainly contaminated, at least by the maternal grandmother. Nothing said by the child in the JIRT interview indicated that she may have been sexually abused by the father or, indeed, anybody else. So that the point is not lost on the father, the child was questioned in a way designed to elicit details of any abuse. Had she been abused by the maternal grandfather, Mr N or Mr U as he has alleged, this should have been revealed. No allegations were made by the child about any of these people or the father. While M spoke about being hurt, this related to the paternal grandmother’s attempt to remove a skin tag on her inner thigh. Although this caused discomfort it was not abusive. Although the child mentioned seeing her father on the Monday she did not.
[5] Exhibit ‘J’
To ensure there is no misunderstanding, it is appropriate to record the salient portions of M interview with JIRT. This is set out below.
JIRT:            What’s something that you don’t like about Dad?

CHILD:         Not helping me.

JIRT:            Okay, all right then - can I show you a picture. What’s that                    a picture of?

CHILD:         A girl.

JIRT:            Okay. So I might point to some body parts and you can tell        me what the name is, how does that sound? What’s this one here?

CHILD:        Hair.

JIRT:            And who touches you on your hair?

CHILD:         Nanny ‘cause she washes my hair and she lives with my dad        because that’s his mum.

JIRT:            So nanny washes your hair?

CHILD:         Mm hm.

JIRT:            What about this one here?

CHILD:         Hand.

JIRT:            And what do you use your hand for?

CHILD:         To help me.

JIRT:            To help you. And who touches you on your hand?

CHILD:         My dad.

JIRT:            Your dad. Okay what about this one here?

CHILD:         Eye.

JIRT:            And what do you use your eye for?

CHILD:         For looking and nanny, um poked me in the eye.

JIRT:            Oh really - so nanny poked you in the eye? Okay.

CHILD:         And then she started telling a lie.

JIRT:            She started telling a lie? We might talk about that later on,         how’s that sound? And what is this one here?

CHILD:         Feet.

JIRT:            And what do you use your feet for?

CHILD:         Walking.

JIRT:            And who touches your feet?

CHILD:         Um, my dad.

JIRT:            Your dad. Okay, what about this one?

CHILD:         Ear.

JIRT:            And what do you use your ear for?

CHILD:         Hearing.

JIRT:            And does anyone touch you on your ear?

CHILD:         Yes, they clean my ear and um daddy cleans my ears.

JIRT:             Daddy cleans your ears. Okay.

CHILD:         And it really, really hurts.

JIRT:            Yeah it’s not a nice thing is it? Okay what about this one           here?

CHILD:         Belly button.

JIRT:            And do you know what you use that one for?

CHILD:         Uh, just for your body.

JIRT:            Okay and who touches you on your belly button?

CHILD:         My nanny.

JIRT:            Your nanny. What about this part here (points to vagina) –         what do you call this part?

CHILD:         Private.

JIRT:            Private. Do you have another name for it?

CHILD:         Uh, no.

JIRT:            What do you use your private for?

CHILD:         For weeing in the toilet.

JIRT:            For weeing in the toilet? Okay. And who touches you on           your private?

CHILD:         Uh, I don’t really know.

JIRT:            Okay. Does anyone touch you on your private?

CHILD:         Yes.

JIRT:            Who touches you on your private?

CHILD:         I can’t remember.

JIRT:            Okay. Has someone touched you on your private and you          don’t like it?

CHILD:         Yes.

JIRT:            Okay. Do you think you could tell me about that?

CHILD:         Yes.

JIRT:            Okay. Tell me about when you someone touched you on your private and you didn’t like it.

JIRT:            You don’t have to be embarrassed, it’s ok.

CHILD:         It was my nanny and my dad.

JIRT:            Your nanny and your dad. Okay. Was that at the same time         or at separate times?

CHILD:         Um. all the time.

JIRT:            Okay, so can you tell me the last time someone touched you      on your private and you didn’t like it?

CHILD:         Yes.

JIRT:            When was that?

CHILD:         That was on Friday.

JIRT:            And who touched you then.

CHILD:         Um, my nanny.

JIRT:            Well, I wasn’t there when your nanny touched you on your          private so can you tell me everything that happened from       beginning to end?

CHILD:         Yes.

JIRT:            Okay. So what happened?

CHILD:         Um, they hurt my finger. And then my sister tipped the    whiteboard over.

JIRT:            Yeah?

CHILD:         She accidentally did it.

JIRT:            Can you tell me when your nanny touched you on your     private?

CHILD:         Yes.

JIRT:            Tell me what happened.

CHILD:         Yes. It really, really stinged.

JIRT:            And what made it sting?

CHILD:         Her finger, ‘cause she was playing with it.

JIRT:            Okay. Where were you when your nanny was playing with          it?

CHILD:         On the toilet.

JIRT:            On the toilet. Okay and can you tell me what your nanny           did?

CHILD:         Um, she did um, um she did um, everything was bad.

JIRT:            Why was it bad?

CHILD:         It was bad in the house and bad outside because every time         she scares me and goes rah…. and she pinches me.

JIRT:            Okay. So what happened when you were on the toilet?

CHILD:         She was playing with it and stinging and that sort it.

JIRT:            How was she playing with it?

CHILD:         Cause um, she was she was um um, she was wiping it and           that’s the end.

JIRT:            And why did it sting?

CHILD:         Cause she was turning it around she was pulling it like that          and like that. (makes circular motion with hands)

JIRT:            Okay. What about the last time that dad touched your      private and you didn’t like it.

CHILD:         It was on Monday.

JIRT:            Okay. Tell me everything that happened when dad touched         your private?

CHILD:         Um, he was um, um, going to um, um cut it off.

JIRT:            He was going to cut your private off?

CHILD:         No my nanny was.

JIRT:            What was she going to cut off?

CHILD:         The end of it, a little bit. It was um, um, um a skin tag on it.
JIRT:            On where? okay

CHILD:         It was there (points to top of thigh)

JIRT:            Was it on your private or somewhere else?

CHILD:         It was there on my leg (points to top of thigh)

JIRT:            Okay and did someone cut it off?

CHILD:         No my nanny did.

JIRT:            So what about when dad touched you on your private?

CHILD:         Um, um, I don’t know.

JIRT:            Okay. Can you remember the last time he touched you on          your private?

CHILD:         Yes

JIRT:            Tell me about that

CHILD:         Um, he was playing with it as well.

JIRT:            And where were you?

CHILD:         In the lounge room under the blanket sleeping on the carpet.
JIRT:              Okay – so you’re under the blanket in the lounge room and         you are asleep. So tell me every thing that happened.

CHILD:         That’s it ‘cause I can’t remember what happened. I can’t really remember. (Yawns)

JIRT:              Can you remember any time that your dad has touched you         on your private?

CHILD:Um, he was um, what was he doing? Um, he was um, he was um, after that day he was, I was sleeping in my bed, in his bed and then he um, did it to my sister.
JIRT:Okay, what did he do to your sister?

CHILD:He um, in the bed, he um, he um, um, um …. he um, what            did…? I know, I know… what did he do? Can’t really          remember that.

JIRT:So, you can’t remember what he did to your sister?          Cause you said he did it to your sister.

CHILD:Yeah, but I can’t remember it. I know.

JIRT:How do you know what he did to your sister?

CHILD:Cause she was asleep and I sawed it.

JIRT:Tell me what you saw?

CHILD:Um, I saw him poking his tongue at my sister.

JIRT:You saw him poking his tongue?

CHILD:Yeah, at my sister.

JIRT:Tell me about him poking his tongue?

CHILD:He was really poking it in [G’s] eye and then he licked      [G’s] eye.

JIRT:So where was he poking his tongue?

CHILD:In his bed.

JIRT:But whereabouts…was he… like you were in bed – and    who was he poking his tongue at?

CHILD:[G].

JIRT:And where did his tongue go.

CHILD:Into my sister’s eye – he reached over and went like this –          like that (makes licking motion)

JIRT:Okay. [Mr H] have you got any questions? Okay someone         told me that you told someone that your dad touched you. Can you tell me about that?

CHILD:It was um nanny, and that was the end. Don’t know the      rest of it.

JIRT:Can you remember what you told your nanny?

CHILD:No

JIRT:Is there anything else that you wanted to tell me?

CHILD:Um, no.

JIRT:Okay. So if something bad was to happen to you who       would you tell?

CHILD:My mum.

JIRT:Okay, so has anyone else touched you and you didn’t like            it?

CHILD:Um, no.

JIRT:Okay. All right then. Do you have any other questions     [Mr H]? Okay. Well what we might do is we might finish up and we might go see mum. How does that sound?

CHILD:Good.

JIRT:Okay. Do you remember at the beginning when we were talking about what it means to tell the truth and tell a lie?           Do you remember that?

CHILD:Yes.

JIRT:Did you tell me the truth today?

CHILD:A little bit ‘cause I can’t remember um, which one didn’t tell the truth… I think that one.

JIRT:Which one’s ‘that one’?

CHILD:That one (points to eye)

JIRT:The eye?

CHILD:Yeah. ‘Cause my nanna was poking in the eye at [G].

JIRT:Oh okay.

CHILD:And she did it in the car, and she was going

At no stage when the JIRT interviewer questioned M about the father did she show signs of discomfort. If she had been hurt or abused I would have anticipated at least a hint of concern when the conversation turned to matters about him. Considered in the context of the interview as a whole, the child’s lack of critical comment about the father supports the conclusion he had not hurt her, whether sexually or in any other manner. As I have earlier said, this was a well constructed interview which occurred within a couple of days of the remarks made by the child to the mother and maternal grandmother. Importantly, this interviewer was trained and unbiased. Of the various people who spoke with the child about this issue proximate to her statements, this is the most reliable process. I place greater weight on the JIRT interview than any other of the child’s remarks.
The maternal grandmother said M continues to say words like, “Daddy was naughty”. She believes this is an allusion to sexual abuse. There is no context that supports the maternal grandmother’s conclusion. Clearly the child’s later remarks could refer to anything about the father she found displeasing. It is also possible the child has adopted a mantra which reflects the opinion held by the maternal grandmother.
During closing addresses, counsel for the mother informed the Court that, having viewed the JIRT interview, it was no longer part of the mother’s case that the father presented an unacceptable risk of sexual abuse to the children. As I understood the mother’s position, it was that she agreed the JIRT interview was the most thorough interview and the interview most likely to produce an accurate history from the child. As must be plain, I agree the JIRT interview was the most forensically skilful and useful interview.
On 7 August 2008, Mr H, who is employed by DoHS and was a member of the JIRT team who investigated the child sexual assault notification, telephoned the father. This was the first notice the father had about the sexual assault investigation. In relation to this incident the father wrote in his affidavit
The first time I had been made aware of any allegation of sexual misconduct was on 7^th August 2008 when I received a telephone call from [Mr H] from the Newcastle JIRT office. He said to me “an incident was reported to us but you have been cleared”.
There was much more to the father’s discussions with Mr H than disclosed by the father.
When Mr H telephoned, the father was taking a shower and he spoke with the paternal grandmother. The father returned Mr H’s telephone call promptly. Mr H records that after he informed the father of the nature of the report, the father directed “a tirade of abuse” towards him. Because of the abuse Mr H terminated the call. The father then telephoned Detective Senior Constable T, who was also involved with the JIRT investigation. The father commenced his discussion with the police officer with the words, “Put that gutless wonder on the phone”. When the father failed to abide the police officer’s warning about his abuse, the police officer terminated the call. The father’s mother then telephoned and spoke with Detective Senior Constable T and Mr H. She conducted herself in a way which resulted in a warning being issued that JIRT staff would not tolerate being abused. Mr H was able to explain the nature of the complaint and discussed the child’s reference to toileting incidents and remarks about “it hurting when she wiped her”. The ‘she’ referred to was the paternal grandmother. To his credit, Mr H again spoke with the father. The father denied he had interfered with the children sexually and expressed his concern that his reports to DoHS about the mother’s neglect of the children had been ignored. Mr H correctly concluded the father had “a lot of anger towards the children’s natural mother” but that it appeared he “accepted no responsibility for any of the problems that exist between the children’s mother and him”. The father was advised that JIRT had interviewed M and could not substantiate that he had caused her harm. The father told Mr H he believed the children’s mother undermines him. He reported that, “Recently he had cried and they had said he was weak for crying.” The father told him, “Those staff at [C] were corrupt”.[6] The father’s abuse directed at the JIRT officer shows how impossible it would have been for the mother to raise this matter with him.
[6] Exhibit ‘Y’
The mother took M to see Dr L on 11 August 2008. Dr L repeated her advice that the children should not go to the father.
On 14 August 2008, the mother’s solicitor wrote to the solicitor who previously represented the father. The mother’s solicitor advised, “The child [M] has made serious disclosures which raise a risk of harm.” A copy of Dr L’s most recent letter to DoHS was attached. The father’s former solicitor was requested to telephone the mother’s solicitor. In the letter, the mother’s solicitor advised she would not make the children available for future contact and was in the process of making an application to legal aid to commence an application to suspend the father’s time with the children.
The father was due to see the children for the weekend starting 15 August 2008. The day before the mother told the children’s school the children would be absent. I infer she kept the children away from school so that the father could not collect them. When the father telephoned the school in the morning, he was informed they were absent. Nonetheless he drove down from Z and waited for the children at the school until 3.10 pm.
On 29 August 2008, the father arrived at the children’s school to collect them for the weekend. The mother had removed the children at lunchtime. The father became upset when he was informed the children had been removed. The school Principal spoke with him. The father told the Principal he would not come again as the situation was not helpful to the children. He told the Principal, “It is all over”. The Principal arranged for the father to meet both children’s teachers and to see their work books. The father was comforted by the meeting and departed the school without incident.
The next time the father saw the children was on Friday, 5 September 2008. This was the Friday immediately preceding Father’s Day. Although the March 2007 orders made provision for the father to spend time with the children on Father’s Day in 2007 and suggested he would do so in later years, the orders were defective in this regard. As I understood it the father sought advice from Burke & Elphick solicitors in relation to this matter. According to him, he was advised although the orders did not provide for him to spend time with the children on Father’s Day in 2008, because there was a pattern he could proceed as if orders existed. If this was the advice that the father received, it was wrong. That the father sought legal advice before he went to the children’s school tends to suggest he had been informed about the mother’s solicitor’s letter of 15 August 2008 and thus would have known the children were not expecting to see him or have the Father’s Day weekend with him.
When the father arrived at the school on 5 September 2008, he positioned himself so that he could see the children, who were in separate classes, leave their classrooms. When he arrived, the mother was also present. M saw the father before she saw the mother, and waved to him. However, the children saw the mother and went to her. To no one in particular she called out that the father should not be there, was under investigation and asked someone to call the police. Staff called the Principal who, when he arrived, saw both children holding onto the mother and crying. The father was yelling at the mother who was also crying. The paternal grandmother was present and demanded that the Principal give them the children. The father waved the 2007 orders at the Principal and also demanded he give them the children. It will be recalled the orders did not provide for the father to spend time with the children that weekend.
In order to try to establish what should happen, the Principal took the mother and children to his office so that he could talk to them alone. The father objected to this and became quite angry with the Principal who he accused of breaching orders.
In the Principal’s office, the children were “very distraught”. They rushed to hold on to the Principal and, while crying, told him they did not want to leave with the father. The Principal asked the mother about the situation. She told him there was an investigation in relation to the father’s sexual misconduct with M. In addition, that there was an order for him not to have contact with the children because of the investigation. This information was wrong on both counts. The mother knew JIRT and DoHS had concluded their investigation and determined the risk of harm had not been substantiated. She also knew her proposed application to suspend the father’s time with the children had not yet been determined. The Principal sought to verify the mother’s information and told her he would speak with her solicitor. Because he did not want to discuss the situation in the children’s presence and he did not believe it was safe for the children to wait outside near the father, the Principal left the mother and children in his office and went to a different office. On his way to the other office, the father rebuked him and demanded he be given the children. Staff informed the Principal the father had yelled at a staff member and all were quite frightened by his behaviour. The mother’s solicitor advised the Principal to telephone the police. The Principal telephoned C police who acknowledged their knowledge of the family and said they would come immediately. The father continued to complain to the Principal and told him the mother would subject the children to her negative attitudes about him. Thus, to appease him, the Principal asked the college chaplain to sit with the mother and children.
The Principal waited with the father for the police. The father continued his angry diatribe, mimicked the mother’s behaviour and “kept up a full volley of abuse towards her even though she was in my office.” When police arrived they spoke with the parties separately. Police decided, correctly, the children should leave with the mother. Whilst at the school, the father continued to denigrate the college. As the mother was leaving he yelled out she would be “picking up a guy from the pub tonight.” The children were with the mother when he said this and I infer they too heard the father’s remarks.
The father was questioned about whether, in response to the incident on 5 September 2008, he threatened to withdraw the children from school. The father denied doing so. However, the school records contain an email he sent on 6 September 2008 to the school in which he said:
[Name deleted], could you please furnish me with the fee structure for 2008 so that I can calculate the appropriate money owed to be returned to me for the withdrawing of [G] and [M] for the 4th term. The conduct of your principal, chaplin, office staffer (who refused to give her name and hurled accusations at my mother and I), female kindy teachers by name of [deleted] and [deleted] on Friday has led me to no longer have faith in your institution or its façade to be of christian values.
I will be outlining the disgraceful [Principal] his weak, gutless and lacking of fortitude behaviour of yesterday to himself, the education dept, his supperiors within [the church], docs and the family law court in another communication. …. Tomorrow is fathers day and it will be tough, thanks largely to the weak pee hearted behaviour of your principal. … No wonder the lord died on the cross, in your bosses mind if he had ovaries he would have been saved. We all have to meet our maker one day, and I hope [Principal] conscience absolutely destroys his fathers day because he destroyed mine. Yours losing faith and not hoodwinked. [Spelling as per original].
On 9 September 2008, the Principal wrote to both parties and informed them that in future, changeovers were to occur outside of the college. They were reminded “that attendance on our site is dependent upon all people behaving with respect in their manner and conduct”.
On 11 September 2008, the father sent another email to the school in relation to a refund for term 4 school fees and confirmation of his decision to withdraw the children from school effective from the end of term 3. Thus, not only was the father’s evidence untrue when he said he had not threatened to withdraw the children from school, his threats to withdraw the children from school reflects poorly upon his parenting capacity.
On 15 September 2008, the mother commenced these proceedings and filed a Contravention of Parenting Orders application. The mother’s parenting application was listed for directions on 3 November 2008 and her Contravention application in the judicial duty list on 24 November 2008. The mother’s solicitors instructed commercial process servers to serve the father.
On 2 October 2008, the father filed a Contravention of Parenting Orders application in this Court. His application was listed in the judicial duty list on 24 November 2008. Thus, both Contravention applications were listed simultaneously. In the father’s Contravention application, Burke & Elphick lawyers gave their address as his address for service. Rule 21.02 of the Family Law Rules 2004 require Contravention applications to be personally served upon the respondent unless another method for service is agreed. By agreement, the father’s Contravention application was served upon the mother’s solicitors. This occurred by letter dated 22 October 2008.[7] The significance of this is that although Burke & Elphick had recorded an address for service on the Court record, this was not communicated to the mother or those advising her until 22 October 2008.
[7] Exhibit ‘AA’
On 18 October 2008, Mr A went to the father and paternal grandmother’s home at Z to serve the mother’s applications filed on 15 September 2008. Mr A wore a business shirt with his company logo on it. At about 3.00 pm he knocked on the father’s front door which was answered by the paternal grandmother. He told her he was a process server and had documents to give the father. She excused herself then told the process server the father was not home. In a tone, which to him was aggressive she said, “The last person that came here I had his job. Come back in half an hour. He left in a red car.” The process server left and positioned his car under a tree so that he could see the front door from a shaded position.
At about 3.30 pm he returned to the house. He had not seen anyone arrive or depart. Attached to the front door was a piece of paper which said, “You are trespassing.” It also had a contact detail for Burke & Elphick. The paternal grandmother again came to the front door. The process server said: “I have gone through this documentation and I understand your concern but your son needs this documentation for the upcoming case.” The paternal grandmother said: “Don’t want it. He’s not here. Leave.” The process server said: “I know he is here. His car is parked in the carport”. At this point, the father charged through the front door, grabbed the process server by the throat and threw him up against some lattice. As this was happening the father said: ‘If you’re working for that [name deleted] cunt I’m gunna kill you.” The father continued to choke the process server. The process server believed he would be seriously assaulted but was unable to escape the father’s grip. The father’s police records record his dimensions. He is 181 centimetres tall, 105 kilograms with what they describe as a large build. He is a big man who would be capable of overpowering many. To free himself, the process server kneed the father twice in the groin. The father released him but then placed him in a headlock. The father said: ‘I’m making a citizen’s arrest and I’m holding you here until the police get here.” The father shifted his hold and again took the process server by the throat and squeezed. The process server managed to free himself slightly and at the top of his voice, called for help. Again, the father pinned him against the wall. The father said: “I’m holding you here until the police get here”.
The process server continued to struggle to free himself. The paternal grandmother came onto the veranda and wacked the process server on his head with a broom. While this was happening the process server heard someone, who he thought might be a neighbour, calling out “let go, let go”. The process server physically barged the father off the veranda. As the father fell he let go of the process server. The process server ran to the front of the yard. The father followed him yelling abuse. The process server said to the father: “If you come at me I will defend myself. You have been served”.
The police had been called. However, when they had not arrived within about 10 minutes the process server left and went to Z Police Station.
The father said the process server attacked his mother and dragged her onto the veranda. According to him, he only intervened to save his mother from an unprovoked assault. The father questioned the process server about why he attempted to serve documents personally when he had an address for service on the Court file. The father can take no comfort from this point. Even if his notice of address for service had been brought to the mother’s solicitor’s attention, this in no way justifies the father’s actions.
The father’s evidence about this event arose during cross-examination by counsel for the mother. It was something of a surprise that she chose to question him about this incident. This is because, while the father questioned the process server about the surrounding circumstances, he did not challenge the process server’s evidence about the assault upon him. The effect of this was before counsel for the mother put those facts in issue the process server’s evidence about the father’s attack upon him was unchallenged. The process server was a good witness. He does not have criminal convictions and has run his own business as a process server for a decade. Not only do I consider the father’s evidence about the process server’s unprovoked attack upon his mother to be inherently incredible, I accept the process server as a witness of truth.
The Contravention applications came before a Judicial Registrar on 24 November 2008. That day, inter alia, an order for the appointment of an Independent Children’s Lawyer was made. Legal Aid NSW subsequently entered an appearance on behalf of the children.
Appointments were made for a Children and Parents Issues Assessment on 5 March 2009. Ms S was the family consultant directed to complete this assessment. According to the father, he was informed by the Independent Children’s Lawyer the family consultant would interview him with the children. At best, this was a remote possibility and it would appear the father misinterpreted the information given to him. In accordance with general practice, the family consultant decided to interview the parties separately and the children alone. She did not conduct an observation session of the children with either party. The family consultant reported that:
When the father was advised that he would not be spending time with the children the father became verbally abusive towards Child Dispute Services staff using the terms such as ‘slut’, ‘bitch’ and ‘fucking cunt’ as well as other abusive terms to other individual staff members.
The father did not challenge the family consultant’s description of his behaviour and language in the remarks quoted above. He explained his outburst was uncharacteristic and a result of his disappointment at being denied an anticipated opportunity to see the children. While I accept the father was disappointed, this does not excuse his appalling behaviour. As I attempted to explain to the father, the Court has vast experience dealing with people who are grappling with distressing family circumstances. His behaviour, as reported by the family consultant and demonstrated throughout the hearing, in the Court’s experience, was virtually unique. The family consultant went on to discuss the father’s presentation and behaviour which she described as being “of extreme concern”. It was her opinion that:
If an order is made preventing the father from spending time with the children then it seems that the father’s aggressive behaviour towards the involved agencies and the mother and the children is likely to significantly heighten, potentially placing the children and others at risk of physical harm.
As to future directions, the family consultant recommended that the Court obtain a psychiatric assessment of the family and invite DoHS to intervene.

It was the family consultant’s opinion that it seemed:
The father is not able to appropriately contain his emotions in any setting and that he has extremely rigid views and beliefs, which if deviated from by others results in his behaviour becoming threatening, intimidatory and abusive. Accordingly, if the children express a view to the father which is not consistent with his own world view (which seems highly likely at this time) then these young children are likely to be directly subject to high level verbal and emotional abuse from the father. In addition to this the children are likely to experience the father interacting with others in a similar manner and therefore be placed in a potentially dangerous situation.
Dr R agreed with the family consultant’s assessment about the risk to the children of exposure to verbal and physical abuse by the father. While she had no difficulty accepting the father’s evidence, which was corroborated in the contact centre notes, that he has the capacity to be playful and loving with the children, she said the risk of emotional harm to them from the father’s uncontained anger and abuse was extremely high. According to Dr R, as the children matured and found it less acceptable to suppress views held by them which were in conflict with the father’s views, the risk of direct conflict between the father and them significantly increased. I agree.
I also accept Dr R’s and the family consultant’s opinions that the father lacks insight into the effect upon the children of his behaviour. In addition, as Dr R explained, he does not accept that it would be beneficial to him and the children for him to establish a therapeutic relationship with a mental health professional so as to address these matters. From at least the time the father was an inpatient at the Psychiatric Clinic he has been aware of recommendations he engage in psychotherapy. The father’s lack of insight into this issue was demonstrated during his cross examination of Dr R. Dr R agreed with the father that in most settings a personality disorder diagnosis would probably not be made after a one hour interview. Because the father spent about one hour with Dr R he submitted her opinion that he has a personality disorder was unsound. However, Dr R pointed out on a number of occasions to the father, she received a large quantity of material about him in addition to that which she gleaned from their interview. Dr R explained the diagnostic significance of the father’s abuse when she told him the children would not be present on 17 December 2009. Also, the subsequent telephone call between them in February 2010. Thus, Dr R laid a sound foundation for her opinion that the father has a personality disorder. Yet, when the hearing finished the father remained adamant he does not have a personality disorder and there was no need for him to engage in psychotherapy. It follows, the father will not receive the type of mental health support which Dr R said was necessary if he was to moderate his propensity for verbal abuse, awful remarks about the mother and the risk that when provoked he may be violent.
On balance, I am strongly satisfied the father poses an unacceptably high risk to the children of exposure to verbal and physical abuse. This risk is broader than in relation to matters within the family which provoke the father. As the matters recorded in relation to Apprehended Violence Orders and assault charges demonstrate, the father has also come into conflict with members of his family, a Centrelink employee and a different former partner. In other words, the risk is widespread and, unless the father engages in long-term therapy from which he benefits, it will continue to be omnipresent. These are findings to which I attach significant weight and which weigh against the father spending time with the children.
I have noted already the parties and Independent Children’s Lawyer agree the father does not present an unacceptable risk of sexual abuse to the children. I agree and also accept the submission made by the Independent Children’s Lawyer that the father has not behaved in a sexually inappropriate manner to either child.

Section 60CC(3) considerations

Neither child wants to renew her relationship with the father. The best evidence concerning the children’s views is found in their discussions with the family consultant and Dr R. These witnesses have considerable expertise in this field and, importantly, are neutral. The family consultant interviewed the children together when they were five years and nine months of age. To her they presented as articulate children who were happy to speak about their family. The children identified close relationships with each other, the mother, J, maternal grandmother and her partner, paternal grandfather and his partner, maternal grandfather and a person named TH. They also spoke positively about Mr U.
The children provided a litany of complaints about the time previously spent by them with the father and ways in which they said he was mean to them. Some of the matters mentioned by the children related to incidents in which the children were not involved and must have been brought to their attention by others. In relation to their views about spending time with the father, the family consultant reported:
Both children stated that they felt ‘good’ that they were not seeing the father ‘because he is mean to us’. They indicated that they did not want to spend time with the father, ‘because he might take us home to his home and mum doesn’t want us to, and he wants us not to see mum anymore. He wants us to live with him’. They said they knew this because the father had told them.
The possibility of the Rainbows [Contact] Centre was discussed with the children. One child stated, ‘It would be bad and I would cry…I don’t really like him and I would scream and try to get out and see mum because he will be mean’. She stated that he had been previously mean to her at Rainbows. She stated that the worker was only there ‘at the end’. One of the children stated, ‘Mum won’t really like it’ (Rainbows) and another stated ‘I will get sick’.
The children are aware that the parents do not get on. They stated that this was ‘because he has been lying to my mum and nan’ and ‘because he has been lying to us and says we lie to him but we don’t’. They indicated that because the parents did not like each other they felt they had to pick ‘sides’ or a ‘team’. They indicated that they were on ‘mum’s team’ and on mum’s team the rules were:
‘You can’t be on both teams, dad lies, dad bashes people, you don’t like each other, he doesn’t take care of us and he is mean’.
Both of the girls struggled to articulate an occasion they had enjoyed spending time with the father but when pressed both indicated they had enjoyed riding waterslides with the father.
The children were interviewed by Dr R nine months later. To her, both were articulate, chatty and they readily engaged in the assessment process. M told Dr R that she did not want to visit the father’s home. She denied she missed him or paternal grandmother. She said she was worried if she visited the father he would be mean or rude to her and thought he would not return her to the mother. M told Dr R “it would be okay” to see the father at the Rainbows Contact Centre. When Dr R asked M whether she would see the father with her two days later the child said “no”. Dr R pressed her, which resulted in the child becoming “anxious” but then she agreed to see him. Having agreed M became hesitant about so doing.
G also described the father as mean and provided numerous examples of how he was unkind to her and “not nice”. G rejected the notion of seeing the father at a contact centre and reiterated she did not want to see him.
To both Dr R and the family consultant it was clear the children’s negative views about the father were influenced by the mother’s opinions to similar effect. With both of these witnesses, the children recounted events to which they were not privy and which it is likely the mother and maternal grandmother discussed in their presence. Indeed, until Dr R stopped her, the mother spoke in the children’s presence about the father’s attempt to take them before the Father’s Day weekend in 2008, his verbal abuse and the child sexual assault allegation. The children’s references to the mother’s concerns and fears while they were with the father in the presence of these witnesses is further evidence of how she has exposed them to her negative views about the father. It is beyond dispute her views have influenced in a negative way the children’s opinions and attitudes towards the father.
In relation to M, Dr R explained her opinion of the child’s views as follows:
[M] agreed to see her father in a contact centre but rejected the idea of seeing him in his home. While [M] would be influenced by the mother’s fears [the father] could keep the children, her wishes might indicate he has not provided the ‘stable environment’ he asserted he did. How abusive he has been is unclear but, at least, the children have been exposed to his displays of anger and frustration and rejection of their relationship with their step-father (as documented in the contact centre notes).
In relation to G, Dr R said:
[G] presented as taking the splitting (primitive defence) option to deal with the parental discord – dad was mean, with nothing good to offer, while mum was all she needed. Her assessment indicated some anxiety about not being with mum and is probably the result of a mixture of noxious influences – mother’s anxiety/childhood fears about losing the caretaker parent when you have already lost one parent/[G’s] actual experiences of dad as an unsafe person to be around, which, at the minimum, has been seeing him behave in an uncontained threatening manner.
I agree with Dr R’s analysis and opinion. Thus, I accept the children’s views do not favour re-establishing contact with the father with, M, at best, prepared to contemplate seeing him at a contact centre. This would seem to be her assessment of the least risky option. Had M been sanguine about seeing the father at a contact centre she would have been less conflicted about the notion of seeing him with Dr R. I am also satisfied the children’s views about the father derive from a combination of factors; particularly their experiences of contact with him and their exposure to the parties’ opinions about each other. Even at their young ages, these children have decided the conflict between their parents is too great for them to manage. Although the children lack the maturity to appreciate how their views have been influenced, their views are a reasonable response to the awful situation within which they have been placed. Thus, notwithstanding the children’s young ages, their views warrant reasonable weight.
In relation to both children their views weigh in favour of the mother’s application.
The children’s stated views suggest they see little which is positive in their relationships with the father. As Dr R explained, however, children who find themselves at the centre of intense parental conflict may perceive that the only solution is to align him or herself with one side. This has occurred in this case. Given the history of the children’s virtually exclusive care by the mother from when they were babies, it is no surprise they have aligned themselves so strongly with her. Nonetheless, it is appropriate to consider whether their unguarded behaviour may reveal their stated position does not necessarily reflect the nature of their relationships with the father.
The contact centre notes documented the children’s visits with the father. After a settling in period, the children’s interactions with him were generally comfortable and positive. There was no indication of fearfulness or avoidance by the children of the father. Generally the interaction between them was to the contrary. The father and children are reported as playing happily and generally engaged in animated play. It would appear, that as a consequence of these gradually developing relationships, the parties agreed to increase the father’s time with the children along the lines set out in the March 2007 orders. Amongst other matters, this afforded the father the opportunity to engage in hands on parenting and for the children to experience his parenting style. Because the father was such an unsatisfactory witness, the Court has little reliable evidence about how the children perceived unsupervised time with him. Both say they did not enjoy it. The father said both children settled in well with him and G told him she wanted to live with him. Even if she made this remark, it is so out of kilter with the views she has expressed elsewhere that, without knowing the circumstances in which it was made, at best it could be interpreted as an expression of fleeting enjoyment of the moment.
Doing the best that I can with the evidence, it appears the children enjoyed aspects of their time at the father’s home but were also troubled by it. Because of the hostile parental relationship and the passage of time, it is now impossible to definitively discern how the children’s relationship with the father was influenced by these periods. In most cases, this type of evidentiary gap would be addressed by the children and, in this case, the father being observed together. The father’s abusive behaviour with Dr R and the family consultant made it unsafe for Dr R to conduct an observation session with the father and children. The father is solely responsible for this outcome and cannot now be heard to complain that this otherwise commonplace assessment was not undertaken.
When the father’s time with the children ended in late 2008 the children’s relationship with him was, at best, tenuous. It is highly likely that this is attributed to the stop start nature of the children’s time with the father and the fact so much of it was spent at a contact centre. Since then, the circumstances under which the mother stopped the children’s time with the father, the awful scene he created in their presence at their school immediately prior to the Father’s Day 2008 weekend, and the critical comments to which the children have been exposed have all but destroyed the children’s relationship with him. Although it is agreed that the father does not pose an unacceptable risk of sexual abuse to the children, the risk of him exposing the children to his verbal abuse and physical violence are so high that anything other than professionally supervised time is contraindicated. The father rejected the notion of supervision of his time with the children other than a relatively short period during which his mother would supervise. As the father’s attack on Mr A demonstrates the paternal grandmother does not have the ability to moderate the father’s behaviour. Nor am I satisfied she accepts there may be good reason to strictly supervise the father’s time with the children. Without him being willing to participate in professionally supervised visits at a contact centre there would be no utility in making provision for them. Supervised contact places are limited and it would not be appropriate to expect a contact centre to make resources available to this family on the off chance the father may change his mind. However, supervised visits would at best maintain some form of identification relationship for the children with the father. It would not provide a setting in which the children could develop a valuable relationship with him. It is not my intention to say that supervised visits between the children and father would adequately protect them from the risk of exposure to abuse, but rather to demonstrate that even in that setting a meaningful relationship for the children with the father would not be established.
The children’s relationship with the mother is sound and essential to their wellbeing. She has been their primary carer and is the parent with whom the children have lived since birth. Although the children enjoy good relationships with many other family members, it is their relationship with the mother that is the cornerstone of their stability and identity. Any changes in the children’s circumstances which would undermine their ability to enjoy their relationship with the mother and to continue to benefit from it, is contrary to their emotional and psychological wellbeing.
Neither child spoke positively about the paternal grandmother nor values her relationship. That relationship has been even more disjointed than the children’s relationship with the father. Again, the passage of time since the children last saw the paternal grandmother will have all but destroyed what was otherwise a fairly tenuous relationship. The paternal grandmother would appear to be strongly aligned with the father and to share his negative views about the mother. She has not sought to establish an independent relationship with the mother or children and thus, unless the father has contact with the children it is unlikely she will.
The children enjoy good relationships with their other grandparents, which relationships are fostered by the mother and will continue to have her support.
The next issue which must be considered is the effect on the children of changing their circumstances, including separation from parents or any other person with whom the children having been living. The effect of the father’s application would be to reduce, in a relatively small way, the amount of time the children have with the mother and J. The children are at an age where the periods of time which they would spend with the father would not, of necessity, disrupt their relationships with the mother and J. However, as I have already alluded to, the issue is not a reduction in the amount of time the children would have with the mother and J, but rather the risks to which they would be exposed if that time was spent with the father. Those risks have already been discussed and as Dr R explained, contraindicate the father spending time with the children in any manner. I am strongly satisfied the children would be all but overwhelmed with anxiety if ordered to spend time with the father and highly likely to come under pressure to tolerate his abuse and criticisms of the mother. This would be so anathema to the children, not only would they be terribly confused, but also greatly distressed. These findings weigh heavily against the father’s application.
Although the parties live 160km or so apart, they would be able to implement orders akin to the March 2007 orders. The father has shown he has the capacity to address the issues of distance and cost so as to regularly spend time with the children. These are not matters which influence the outcome.
The father’s evidence demonstrated he has the capacity to meet the children’s physical needs. To the extent he may be unfamiliar with the parenting role in these matters his mother has been of real assistance. However, the father’s personality disorder undermines his parenting capacity and, even for weekends and during school holidays, he would be unable to reliably meet the children’s emotional needs. Quite simply they would be on tenterhooks waiting for the next abusive outburst. As Dr R and the family consultant explained this would be very emotionally stressful and psychologically harmful.
Provided the father was not in dispute with the children’s school, he would be able to meet their educational (homework) needs.
The mother is a competent parent who ably meets the children’s physical and educational needs. Subject only to the extent to which she has embroiled the children in the parental dispute and her negative views about the father, in her care their emotional needs are adequately addressed. This is evident from the school reports. Because the children, even on the father’s application, will be in the mother’s primary care, she will be required to attend a mental health professional to assist her to protect the children from her critical views about the father, as well as to better prioritise their emotional needs.

Between them, the parties have demonstrated a profound inability to co-parent. This parental relationship is extraordinarily hostile and shows no signs it may improve. Even when the parties do not speak the communication book[9] shows the father is unable to resist the temptation to abuse the mother. In it one sees entries from the father addressed to the mother such as “get fucked”, him calling the mother an “ignorant, naive, arrogant human being”, and “ignorant, selfish and damning to the children”. The mother did not engage in this type of abuse in the communication book. Her remarks were civil and generally related to the children. As I said earlier, the mother was very distressed by the father’s behaviour during this hearing. Far from putting the mother’s mind to rest about how he may behave with the children, the probability is her anxieties in this regard have increased. In other words, the situation now, in terms of parental conflict and the mother’s anxiety, is even worse than it was when the hearing commenced. For this poorer outcome the father is responsible.
[9] Exhibit ‘I’
Both parties are weary of litigation and their disputation has clearly taken a heavy toll on them and the children. Further litigation is likely to exacerbate the tensions between the parties which in turn is likely to result in further pressure on the children. If orders are made along the lines contended for by the father, future litigation is virtually certain. Orders consistent with those sought by the mother make future litigation unlikely. According to the father, whichever outcome is ordered he will not return to Court. While I accept this is his considered opinion, if orders are made as sought by him I doubt he would maintain this stance if he perceived a breach of his entitlements. Nonetheless, these are matters which warrant little weight.
There is considerable overlap between s 60CC(4) and s 60CC(4)(a) with s 60CC(3). There are no further matters which require consideration. However, so that it is clear, I accept the mother has made decisions about the children without consulting the father. Although he wished to be more involved, relationships between the parties have always been difficult and not all decisions were able to be easily discussed. This is a situation for which both parties are responsible.

Conclusion and structure of the orders

The parties agree it is in the children’s best interests to reside primarily with the mother. This position has the support of the Independent Children’s Lawyer, family consultant and Dr R. I agree it is in the children’s best interests. I am also satisfied the parties have no capacity to communicate constructively and whatever capacity and trust previously existed has been destroyed. The level of abuse which the father maintained against the mother is unlikely to abate and makes it impossible for her to discuss issues about the children with him. One needs only recall that the father tried to withdraw the children from a school where they were happy and performing well because the school would not tolerate his poor behaviour to appreciate how impossible equal shared parental responsibility would be. The case for sole parental responsibility to vest in one party is strong. Given that the children will primarily reside with the mother, she shall have sole parental responsibility for them. This outcome is in the children’s best interests. Any other outcome would run an unacceptably high risk that important decisions about the children would not be taken in a timely way and matters which need to be addressed would become casualties of this highly conflicted parental relationship. Almost certainly there would be further litigation.
Until the father engages in long-term psychotherapy along the lines recommended by Dr R and can demonstrate he has made “a better life adjustment than he has to date” and significantly improved his capacity to care for the children without an unacceptably high risk of exposure to verbal or physical abuse, the children are unable to establish meaningful relationships with him which would be to their benefit. The father’s poor behaviour and “life adjustment” makes him a poor role model for the children. Were they to adopt his approach to conflict their social adjustment would be seriously compromised. Presently, any attempt to establish a relationship between the children and the father, even in a supervised setting, is fraught with risk. Not only is there a risk of exposure to verbal abuse and physical violence, but also the serious risk such contact poses to the children’s relationship with the mother. Sadly, the effect of these findings is that I am satisfied the children’s best interests mean the father’s application should be dismissed and orders made which mean, for the foreseeable future they will not have a relationship with him.
For these reasons, I am satisfied the orders identified at the beginning of this judgment are in the children’s best interests.

I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 11 November 2010.

Associate:

Date: 11 November 2010

[2010] FamCA 1009

11 November 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness