KOLOVOS & KOLOVOS - [2009] FMCAfam 1169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOLOVOS & KOLOVOS

[2009] FMCAfam 1169

FAMILY LAW – Parenting and property dispute – allegations of sexual abuse of child – inherent improbability of matters alleged – unfortunate polarisation of most of the independent witnesses – allegations of abuse not established – ongoing counselling – property dispute – major contributions by mother – property adjustment 90 per centum in favour of the mother.

Family Law Act 1975, ss.60CC, 75(2)

Gosper (1987) FLC 91-818
Kessey (1994) FLC 92-495

Applicant:

MS KOLOVOS

Respondent:

MR KOLOVOS

File Number:

MLC 6862 of 2008

Judgment of:

Burchardt FM

Hearing dates:

24, 26 – 28, 31 August &
1 – 4, 9 &10 September 2009

Date of Last Submission:

30 September 2009

Delivered at:

Melbourne

Delivered on:

24 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr J. Fronistas

Solicitors for the Applicant:

Antippa Lawyers

Counsel for the Respondent:

Mr P. Davis

Solicitors for the Respondent:

Maria Barbayannis & Co.

ORDERS

Pursuant to rule 13.04 of the Federal Magistrates Court Rules 2001, final orders are made in accordance with the attached minutes of proposed orders signed by the parties and placed on the Court file.
The time for any costs submissions to be filed and served by either party pursuant to Orders made 24 November 2009 be extended by one week.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 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 are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 6862 of 2008

MS KOLOVOS

Applicant

And

MR KOLOVOS

Respondent

REASONS FOR JUDGMENT

Introductory

This case involves a bitter dispute, both as to children’s and property matters, between the father and mother of [X] (known more often than not as [X]), who was born [in] 2004. From an estimate of four days the trial expanded, despite my best efforts, to eleven.
While there are many, one might say too many, matters in vivid dispute between the parties, there are two issues which stand at the forefront. They are not as un-interrelated as one might have imagined. The first question is whether [X] has been sexually abused by her nine year old cousin, or otherwise interfered with by her father and/or his family. The second concern is how much of the property pool each of the father and mother should receive.
For the reasons that follow, I have concluded that [X] has not been the subject of sexual abuse by her cousin, or by any member of her father’s extended family, including the father. Contrary to the position vehemently propounded by the father, I do not accept that the mother has invented the allegations of sexual abuse to spite the father.
So far as the property pool is concerned, I have reached the conclusion that the father should receive 10 per cent of available assets and the mother 90 per cent.

The Facts

This case ran for a very substantial number of days (well over double the original estimate of four days) and involved a substantial amount of evidence which was of little, if any, assistance to the Court in determining the core issues.
If I had not limited the extent of cross-examination by both counsel, it would have taken far longer again. The mother’s counsel, of course on his instructions, wished to spend almost limitless amounts of time in cross-examination on points which were either already sufficiently clear or involved an unattractive element of myopia, an over-attention to insignificant detail.
In these reasons for judgment I do not propose to traverse each and every matter that the parties themselves found important. If a matter is not referred to it is not because I have not thought about it, but because I regard it of no assistance in determining the central issues that the Court is confronted with.
Even so, the matters in dispute cannot be understood without a relatively detailed recitation of the events.
The mother was born [in] 1969 and is therefore now 40 years old. The father was born [in] 1969 and is, likewise, 40 years old. They both come from what are clearly close-knit, rather conservative Greek-Australian families.
Despite the voluminous material that each party has put on affidavit, there is surprisingly little about the courtship of the parties and the events leading up to their marriage which took place [in] 1998. The parties agree that they met at a nightclub in 1994 and started going out together a while thereafter. They were engaged for two years before the marriage.
They do not appear to have cohabited before marriage.
After the wedding, the parties stayed briefly at a hotel before honeymooning in Vanuatu for two weeks. The mother says that she paid all the costs of the honeymoon in the sum of $7,000, and the father says that the costs were shared equally.
The mother says the honeymoon was not enjoyable because the father was too tired to get out of bed, whereas the father says it was a relaxing and enjoyable time.
Upon return to Australia the parties did not cohabit, but each returned to live separately in their respective parents’ houses for six months. The father says this was so that renovations could be completed at the home where they eventually went to live thereafter. Even if that is true, it is an unusual outcome and tends to support the mother’s assertions as to the unsatisfactory nature of the honeymoon.
At the commencement of the marriage the mother was working at [W]. She continued to work until she was made redundant in 2002.
The father had worked for [C] for many years, as is shown by his employment records which are exhibit A20 and exhibit A12. Those records show no employment between 1995 and 2005 apart from a short period between February and May 2002. If the father worked, as he asserted in his first affidavit, at [C] briefly in 2003, that is not supported by those employment records.
There was considerable argument before me as to the amount of work done at the former matrimonial home situated at Property M. The father said that he, or in large part friends or relatives of his, conducted substantial renovation work. The mother, by way of contrast, sought to diminish any work done by the father, and was adamant that it was minimal and in any event unnecessary as the property had previously been tenanted and must, therefore, be presumed to have been in satisfactory condition.
The mother has asserted that in May 1998, she spent approximately $8,000 on furniture and purchased whitegoods costing in excess of $1,500 in August 1998. Those assertions are admitted by the father. The father was not working in 1998, but did get money from his mother from time to time.
It seems that in about mid 1998 the parties commenced to cohabit at the property. They continued to live there until separation. There was disagreement between the parties as to the basis upon which they were permitted by the mother’s parents, who owned the property, to live there. The mother’s position, supported by her sister, was that their father had wished to develop the property and ultimately sell it, and that there was no expectation that the property would be gifted to the parties. The father’s position was that he and his wife had been promised that the property would be given to them, and that that was why they put so much effort into renovation.
In any event, in July 2000, the mother obtained loans from the Westpac Bank to purchase the matrimonial home from her father’s company for the total amount of $110,000.
Thereafter, it is the mother’s case that she made all mortgage payments from her wages and paid all household expenses. The father’s position was that he contributed through his earnings, which were in cash, from time to time.
In July 2002 the mother was retrenched from [W] where she had worked for 12 years, and she asserts that approximately $29,000 of her redundancy payment was spent on renovations. The father admits that such an amount was spent on renovations, but says that he paid half of it in cash.
The mother says that following her retrenchment her parents made each and every payment on the mortgage until the time at which it was eventually paid out in December 2005 when the mother says she received $91,600 from her parents to do so. The father admits that these moneys were paid, but says that the former matrimonial home was always intended to be a wedding gift to the parties jointly.
The mother says that because of lack of financial support from her husband throughout the marriage and because she was unable to work after their daughter was born, she made application for early release of superannuation benefits on hardship grounds releasing a total of $30,000 in three tranches (less tax) in August 2005, November 2006 and March 2008. The father does not deny that such payments were received, but says they were occasioned by the mother’s alleged mismanagement of their money.
It is clear on any view that the father is a man heavily involved in cars, both in occupational and recreational terms. He is a qualified [tradesman] and, to the very limited extent that he has worked during the marriage, that is the work he mainly did. He also clearly has tinkered with cars over many years. It is not necessary for me to go into detail about the number of cars that he has had from time to time because it is common cause that each party has a vehicle in their possession and that these vehicles are worth roughly the same amount of money.
It is also common cause that the father has regularly visited car race meetings, both in Victoria and indeed regularly interstate. Although the cost of such activities is not indicated precisely, it would not be insubstantial. I will return to this matter when I deal with the credit of the parties later on.
There was dispute between the parties as to who had cared for [X] after her birth. It is common cause that [X] was breastfed and it is therefore clear that the father did not have much to do with feeding [X]. Each of the parents asserted that they were the primary carer. I will return to this matter when I deal with the parties’ credit also.
This rather strange marriage continued on relatively uneventfully through until 2007. It was then that matters came to an extraordinary and abrupt conclusion.
There have been several allegations of domestic violence with which I shall deal later, but as I have said the pattern of events seems generally to have been relatively uneventful until this particular date.
On 18 August 2007, the parents and [X] went to the wedding of one of the father’s cousins. A very substantial proportion of the evidence given to the Court concerned what happened on that evening and what conclusions should be drawn from it. Putting the matter shortly, the mother asserts that the father became psychotic, was assessed by ambulance drivers called to their matrimonial home as psychotic, and was taken involuntarily by the police to the Austin Hospital for assessment. When he returned home after that assessment, in the company of his parents and other relatives, the mother would not let him back into the matrimonial home. It is common cause that she was successful and that the father left and went to his parents.
The father’s position, by way of contrast, is that albeit he was affected by excessive consumption of alcohol, he was in very considerable pain from his back, that any untoward behaviour exhibited to the mother prior to calling the ambulance officers was attributable to his back pain, that his behaviour to the officers, while misconceived in hindsight, was merely sarcastic, and that the arrest was totally unnecessary. I will deal again with these matters in more detail when I come to credit.
Following those events the mother sought and obtained an intervention order in December 2007, following various interim orders. The mother did, however, make an offer by her solicitors to the father to have supervised time with the child at [B] Street. This offer made on

5 October 2007 was rejected by the father. Once again, his reasons for doing so will be examined in more detail when I come to credit.
Thereafter, the father did not see the child, [X], for a considerable period of time until orders were made by the Court on 2 September 2008 for a regime to reintroduce the father to the child supervised by persons from the organisation Aiding and Caring Children’s Contact Service (“Aiders and Carers”). This commenced towards the end of 2008. This series of episodes is, likewise, the subject of vivid factual dispute. Once again putting the matter broadly, it is the mother’s case that [X] became extremely distressed by the insistence of the paternal grandmother, Ms K, to attend the supervised contacts with the father. The mother says that her endeavours to prevent this inappropriate behaviour were unprofessionally and poorly handled by the three people with whom she dealt at Aiders and Carers. The father’s case is that the visits were all extremely successful, notwithstanding the presence of the paternal grandmother. His case is strongly supported by the three employees of Aiders and Carers. I will deal with this in more detail when I consider the credit issues.
The mother filed a Notice of Child Abuse or Family Violence in the proceedings at the same time the proceeding originally issued on

29 July 2008. The primary details of the alleged child abuse were respectively that:
a)on 17 August 2007, the father assaulted [X] by pushing her on the nose; and
b)in October 2004, the husband left the child unattended on a couch and she rolled off the couch onto the floor.
A number of other matters were alleged in Part G of the Notice. Most of these either arose on 18 August 2007 or were years previously (back to 2001) and/or not pressed at trial.
I would interpolate and say that it is regrettable that the solicitors the mother instructed saw fit to file a Notice of Child Abuse in those terms. It was filed long after many of the alleged events, some of which might well be thought to have been mere ordinary household mishaps. The Notice of Child Abuse was plainly filed as a tactical gambit, and it should not have been.
The parties first saw Mr Papaleo on 28 October 2008 and he prepared a report dated 10 November 2008. Given the way the matter has proceeded, it is appropriate to record at least some of the observations made by Mr Papaleo in his report:
a)Mr Kolovos presented as at times passionate, aroused and frustrated by the circumstances in which he found himself, and the false portrayal of him and his alleged drug use as justification for him not seeing his daughter;
b)Mr Kolovos had acted on legal advice in deciding not to accept supervised time with [X] at [B] Street because he believed the matter would be resolved rapidly;
c)Mr Kolovos wanted an equal care arrangement with his daughter;
d)[X] was happy to see her father, but did not engage in conversation with him;
e)Mr Kolovos alleged that this lack of full engagement was because of the mother’s undermining of him;
f)Mr Kolovos said that his past drug use had been grossly exaggerated by the mother;
g)Mr Kolovos enunciated the version of the events of 18 August 2007 earlier indicated in these reasons;
h)
Mr Papaleo noted there appeared to be a contradiction between the ambulance officer records and the hospital records as to

Mr Kolovos’ condition on 18 August 2007;
i)Ms Kolovos found it difficult to say why she had stayed in such an abusive situation, other than to give an almost naïve explanation of trying to keep the family together;
j)Ms Kolovos thought Mr Kolovos was a risk to their daughter because of his drug-taking;
k)the incident of 18 August 2007 was the catalyst for the end of the relationship. (Ms Kolovos likewise repeated the version of events to which I have already referred);
l)Ms Kolovos explained that there was a fundamental struggle within her in that she wanted [X] to have a relationship with her father and to spend time with him but, at the same time, she wanted to make sure her daughter was safe;
m)[X], when seen with her mother, was extremely talkative, playful and interactive, and relaxed.
The relevant conclusions reached by Mr Papaleo were that:
a)[X] perceived her mother as her primary carer who was the emotional hub from which she pursues all other aspects of her life;
b)while at one level Mr Kolovos’ frustration was understandable, at another level he was at times intolerant, abrasive, irritable and annoyed about his legal advice. Mr Papaleo noted that this behaviour was commensurate with the description given by his mother about him;
c)the mother did not present as spiteful, vengeful or vindictive;
d)the explanations given by Mr Kolovos of his refusal to see [X] at [B] Street reflected his own judgment; and
e)nonetheless, it was clear that there were “at least the indications of a good relationship with [X].”
Although very properly bounded about by appropriate reservations,

Mr Papaleo suggested that [X] should see her father for a greater period of time increasing, in the ultimate, to overnight stays.
Mr Papaleo had made it plain that the issue of drug use by the father was a matter that concerned him, and various endeavours were made both to check on that matter, and also to resolve the father’s ongoing psychiatric situation.
It is not necessary to traverse at this stage in any detail what occurred, but it suffices to say that the evidence appears to suggest that, with the exception of occasional use of Valium prescribed by a doctor or on one occasion taken from a friend, the father has been drug-free. Furthermore, the psychiatric evaluation suggests that while he may be of normal to relatively low intelligence, he does not suffer from any diagnosable psychiatric condition.
Leaving aside minor interlocutory skirmishing, matters proceeded reasonably straight-forwardly as the time suggested by Mr Papaleo and ordered by the Court took place. Matters became much more vivid, however, in relatively recent times.
With the matter listed for trial on 24 August 2009, on 24 July 2009 Messrs Antippa Lawyers, who act for the mother, wrote to the solicitors for the father making a number of very serious allegations of sexual abuse allegedly perpetrated by the father and his family on [X]. Leaving aside allegations that both the father and the paternal grandfather had exposed their penises to [X], and a minor incident where [X] fell and cut the gum of her teeth, the most serious allegations were made against [X]’s nine year old cousin, [Y]. These were said to have occurred on 12 July 2009, and included [Y] introducing his penis into [X]’s mouth and vagina, and his finger into her anus and vagina.
The letter went on to assert, as indeed was the fact, that the incidents alleged on 12 July 2009 had been reported to the police and the SOCA Unit who advised that no action would be taken as [Y] was under ten years of age. It was also reported in that letter that [X] had been physically examined at the Gatehouse Centre and not been found to have any observable physical injuries.
It is fair to say that thereafter the parties entered into a frenzy of affidavits filed by almost every conceivable person having any dealings with or interest in the matter. I will deal with these competing allegations when I come to deal with credit.

The parties were, in the light of these recent very serious allegations, referred again to Mr Papaleo who produced a further report dated

26 August 2009
. It is not necessary to traverse Mr Papaleo’s report in detail, but I note the following passage, which in a sense stands at the heart of the forensic dilemma with which the Court is confronted:
“This is obviously an extremely disturbing matter that requires considerably more investigation. It is absolutely correct that a child of [X]’s age could not harbour knowledge about such extreme sexual behaviour without having had some direct exposure to such behaviour. It is also true, however, that a child so severely sexually abused would, in fact, be traumatised, and it is completely incongruent with the description by Ms Kolovos that [X] is happy at school, shows no concerns whatsoever, and is effectively asymptomatic.”
Mr Papaleo went on to say:
“At some point there needs to be some consideration of the likelihood that the events that are alleged to have occurred have occurred.”
Mr Papaleo noted the lack of likelihood that the events complained of might have occurred, and went on to say about Ms Kolovos:
“What was clearly obvious and evident was that Ms Kolovos has become extremely agitated, that she was preoccupied with the family law proceedings prior to the allegations of the abuse, that even in my one session with her, the issue of the grandmother, the financial resolution of the disputed property issues, the caveat on the house and Mr Kolovos’s dishonesty all poured forth.”
Following that report, Mr Papaleo met and interviewed [X] on

28 August 2009
and saw her briefly in the company of her father on the same day.
Mr Papaleo noted that almost immediately [X] asserted that the reason for her meeting him was because her father was flashing his “willy” at her. Mr Papaleo noted that this appeared to be repeated in an almost rote fashion and that [X] was not unduly distressed or anxious.
Mr Papaleo noted that open-ended questions produced little in the way of information, but more directed leading questions did so. [X] asserted that the colour of Mr Kolovos’ penis was yellow, that its shape was oval and that it had sparkles all over it. During this recitation, as in others, [X] was laughing and giggling uncontrollably.
I do not propose to paraphrase the entirety of Mr Papaleo’s report. It speaks for itself. It was apparent that [X] was very distant in the company of her father and not keen to see him.
Mr Papaleo went on to draw attention again to the dysfunction between what [X] was saying and her actual presentation to him.
At paragraph 12, Mr Papaleo said:
“[X] now recounts what her father, her grandfather and her cousin are alleged to have done, as fact. Consideration of the possibility that what she is recounting is a false positive needs to be weighed against the material that she produced. The incongruence of her mood during presentation did not impress as an anxious regression and avoidance, but rather more so embarrassment.”
Having set out this introductory, admittedly somewhat broadly-based recitation of the history, I come to deal now with the evidence and credit of each of the witnesses. Unfortunately as is so often the way, it is not possible in a case like this where the issues are contested in the way that they have been to avoid remarks which are critical of the witnesses to a greater or lesser extent.

The mother, Ms Kolovos

It must be said at the outset that the mother was not a good witness. On a considerable number of occasions she was extremely unresponsive to questions which, giving all due allowance for the stress of cross-examination, she should surely have been able to understand. She impressed me as being a highly intelligent and articulate woman, but unfortunately a number of her answers gave the very strong impression of being made up on the run to explain inconveniences in earlier answers and to assist her case as best she saw fit at the moment.
The mother did, however, confirm (P-17) that she did not trust any member of the husband’s family. She also confirmed that she did not trust anybody at the organisation, Aiders and Carers (P-17).
It is quite clear that she entirely believes everything that [X] has, as she sees it, disclosed to her about the conduct of the father and his family and in particular the sexual misconduct detailed earlier.
The mother thinks that the father still takes drugs and goes so far as to suggest (P-20) that he may be controlling the results of drug-testing by diluting his samples. She also went so far as to suggest that the father was a paedophile (P-22).
A particularly unconvincing answer given by the mother related to the presence of the paternal grandmother at contact at early stages when Aiders and Carers were involved. She said (P-31):
“No, never. [X] was opposed, not me.”
That remark flies wholly in the face of what the mother told

Mr Papaleo when her concerns about the grandmother poured out as I have earlier recited.
That this was the mother’s true position was quite apparent from the answers she gave and from the vivid interpersonal hostility displayed when the grandmother herself was called. It is also consistent with the evidence which shows that the mother had little to do with the father’s mother and/or the rest of his family during the period that the marriage subsisted.
The mother’s denial of her obvious detestation of her former mother-in-law is merely one indicator of the difficulties that subsist with her evidence. I note that the mother (P-39) denied Mr Papaleo’s account of the outpouring by her when she saw him. Having seen Mr Papaleo cross-examined, and bearing in mind that he is a professional witness with no interest in favour of either party, I have no doubt that his record is correct, and that the denials of the mother are not to be accepted.
I note that the distrust the mother has of all persons whom she regards as being oppositional to her case extends (P-45) to extremes. She asserted that, after the first two visits with Aiders and Carers, Ms P completely changed her approach. She went so far as to suggest that the paternal grandmother had bribed Ms P or alternatively, that Ms P had a personal interest in the father. She also alleged that Ms P might be vengeful because she had lost her job (an assertion that misrepresents the position, but in part, as I will explain, is accurate).
It is clear that the mother has formed the view that the paternal grandmother will seek to take her child away from her and, despite her denials (P-83), I have no doubt that she had told [X] that that is what the position is.
If there is one thing that is even clearer, it is that the mother has routinely discussed this case in front of [X] and indeed I would interpolate that I think all parties have inappropriately, to a greater or lesser extent, involved her in the proceedings.
I note that the issue of the grandmother’s attendance at Aiders and Carers became so acute that the mother discussed how to deal with the grandmother’s presence with Ms F, the Aiders and Carers supervisor. It seems clear that Ms F must have said something about giving the child a feather, but it is by no means clear what in fact was said. What is clear is that the mother thought she had the go-ahead to instruct [X] to produce the feather in some way to try to ensure that her grandmother was not present at the time spent at Aiders and Carers.
What this suggests to me is the intensity of the mother’s emotions about this, and her incapacity to understand that seeking to make a child of [X]’s very young years stand up, as it were, to an adult was entirely inappropriate.
It is clear that the mother loves [X] very dearly. She has been the child’s primary carer throughout her life. It is, unfortunately, also clear that she entirely believes everything she perceives [X] to have told her. She said that, were there to be further disclosures, any further contact time ordered by the Court would cease (P-172).
I note that the mother did concede that the father did some renovation work (P-165) and that he provided $2,000 at least towards dental treatment (P-171).
It is perhaps sufficient, in terms of dealing with the mother’s attitude towards the father, that she said (P-171) in response to a question:
“Just ask you one question, can you think of any, even one good thing to say about your former husband as a parent, as a person, as a result of shared experiences? Do you have one good thing to say about your ex-husband? --- Actually, it is funny you ask me that because, no, no. Ever since after his drug psychosis, no, it’s just gone downhill. If I think about him, it is just negative things, I don’t think, yes, I can’t see anything good about him, it’s just – especially now with what’s happened with [X] and everything like that. It’s just – it’s all negative.”
One could scarcely think of a clearer indication of what the mother had to say about the father.
Having said all of this, however, it should be noted that the mother’s answers in relation to matters to do with money impressed me far more favourably than her answers about matters to do with her father and his family that related to parental issues. Her answers about money matters had about them a ring of truth, notably absent in the rest of her evidence.
As will become apparent when I come to deal with findings of fact, in the main I found the mother’s answers about financial issues credible and largely supported, to the extent that any oral evidence was so supported, by objective documentation.

Mr W

Mr W is a professional forensic accountant who was called to rebut the evidence of Mr G. His professional competence was not put in issue by the father’s counsel.
It is sufficient to say that, while I found Mr W to be an impressive witness of palpable honesty, his evidence was not as conclusive as either side might have hoped. That is no criticism of him. It is rather because the materials provided to him were on any view incomplete and in any event were based upon a number of assumptions about matters not recorded in documentary form, which I have to decide as matters of fact.
In this regard I refer perhaps most importantly to the question as to how much money the father may have earned which he did not declare for the purposes of tax and what he did with it. These sorts of limitations in the ultimate rendered Mr W’s evidence largely unhelpful, although it should be noted, for reasons to which I shall come, he need not have been called as I did not admit the affidavit of Mr G going to financial matters in any event.

Ms R

Ms R is a psychologist who first saw the mother, relevantly, in July 2009. She gave an account of various attendances by both the mother and/or [X].
Unfortunately, and like almost all the other professional witnesses in this case, Ms R had unconsciously adopted a relatively partisan position. It is clear that, at all times, Ms R believed what [X] was telling her and what the mother was telling her. She formed a clear view about that from an early stage (P-202).
Indeed, although it is in no sense a matter for criticism, it is apparent that she is on personal name terms with the mother (P-190) and I would infer has been so from an early stage. This is not in any sense a matter of criticism. It is very easy to see why a psychologist confronted with the sort of allegations that [X] was producing would have responded sympathetically.
Although [X] produced a number of drawings, which are plainly the subject of concern (and which are in evidence as exhibits before me) in the presence of Ms R, I note in particular the following observation at P-190:
“The main concern on the first session was some drawings that [X] had done and some distress that she was showing to her mother. I didn’t see the distress in my room, but [Ms Kolovos] reported distress, so that was the first session and I just booked the nearest appointment I could…”
The reference to the lack of obvious distress on [X]’s part is significant when you look at the later revelations made to Mr Papaleo with which I have already dealt as to [X]’s lack of symptomology consistent with her having been abused.
The only other matter which I wish particularly to record about

Ms R is at P-209 where she gave an answer which in my view may well go to the heart of the matter:
“I don’t think that the things that I read in Mr Papaleo’s report would imply that Ms Kolovos can’t be an adequate mother. I think she’s a mother who is of an anxious temperament, and that the court proceedings and the distress about these disclosures have added to that anxiety.”
I should not leave Ms R’s evidence, however, without recording that she suggested that Mr Papaleo might not have been an appropriately sufficiently qualified professional to give evidence about children who suffer from child abuse. That assessment on her part is interesting, bearing in mind that the evidence clearly shows that Mr Papaleo, unfortunately for him, probably has as much experience if not more than any other appropriately qualified professional available in the Melbourne area.

Ms E

Ms E works for the Department of Human Services (“DHS”) and was the first person of two persons contacted when a notification was made to DHS on 15 July 2009 about [X]’s wellbeing. Beyond giving a helpful indication of how the Department generally approaches such notifications, and confirming how things devolved here, her evidence was of little moment.
The one answer to which I would draw particular attention is at P-212 where the following extracts are relevant about a conversation between Ms E and Ms K, the paternal grandmother:
“Ms Kolovos stated that she was aware of the allegations made in relation to [Y] and [X]. Ms Kolovos advised me that she believed that the concerns were not true. She advised me that she felt the mother had made up stories. She advised me that her grandchildren are good kids. She stated, that mother was not well in the head. She stated that mother has said many things about father and paternal grandmother that are false, and that evidence of this has been provided in court. She stated that mother has a lot of hate for the paternal family. She stated that this is all fabricated and a big lie.”
One would need no clearer indication of Ms K’s view about her former daughter-in-law.

Dr G

Dr G was subpoenaed to give evidence. It was clearly intended that his evidence would support the proposition that the father had been psychiatrically unwell at the time of the August 2007 incident and thereafter.
Although I found Dr G to be a thoroughly believable witness who was obviously competent in his profession, it is not necessary to deal in detail with his evidence.
Much of what was sought to be elicited from Dr G amounted to endeavours to build upon inferences about assertions allegedly made to Dr G about the father by third parties, being members of his close family.
In the ultimate, it is not necessary for me to deal with this in greater detail than this. It is probable that the father did require medical attention from Dr G from time to time and that this may have included attention for anxiety and/or some of the elements of depression. There is nothing to suggest that such conditions are ongoing.

Ms J

Ms J is the sister of the mother. She is [employed in the Education Industry] who lives in [C]. She was called in essence to give evidence about her capacity and/or desire to supervise time spent by the father with [X] should the Court so order.
It is sufficient to record that I thought Ms J was an extremely impressive and honest witness. The answers she gave at P-251 to

P-252 about her preparedness to supervise were telling and are given with a ringing conviction absent from the evidence of so many other witnesses.
At P-252 she said, in terms that I entirely accept:
“I am prepared to dedicate four hours, and if I say that I will do it, I will do it, I will keep my word for that.”
Of necessity, the transcript will not fully record the ringing sincerity with which that answer was given.
Ms J was also cross-examined about the basis upon which the father and mother commenced to renovate the former matrimonial home.

Ms J’s evidence was that the house was fine because there were tenants there beforehand, that the renovations had been undertaken “because he was fussy and he wanted the property with clean carpets and everything already finished and complete, and he knew my father, or [Ms Kolovos], was going to pay for it.”
Ms J also confirmed, and it was not put to her that this was not the subject of direct knowledge rather than hearsay, that her father had not undertaken to promise to give the former matrimonial home to the father and mother once the renovations were complete.
I approached this aspect of her evidence with greater caution because the precise basis of her knowledge was not, as I say, either explained or challenged. Nonetheless, it forms evidence supportive of the mother’s otherwise credible evidence about this issue.

Ms S

Ms S was the second social worker involved in the DHS report in respect of which Ms E was the first. Apart from confirming the way in which the notification about [X] was dealt with in July 2009, her evidence in my view was of little assistance. I note that the Department ultimately took the view that there were no protective concerns in relation to [X] but in my view, in the context of the evidence of this case overall and the way in which it has developed, the DHS conclusion is self-evidently not in any way binding upon me. It is merely part of the picture.

Mr Kolovos - the father

If it is fair to say, as I do, that the evidence of the mother was in many ways unsatisfactory, it must also be said that the same was certainly true of the father. The father’s work history has been intermittent and it is not possible to avoid the impression of gross indolence. At P-270 he confirmed that, upon the marriage, he stopped work for at least six months. Tellingly, perhaps, the following interchange took place at

P-270:
“And since that time, when you were finishing off your apprenticeship with them, did you then continue to work for them after you completed your training?---Yes.
Yes. And you have done that continuously since then?---Yes.
Up until when? Up until today? --- Well, I have always worked for them, yes. I have had other paid employment – well, not really paid. (emphasis added).”
Although he doubtless did not intend to do so, that last answer by the witness in my view accurately describes the totality of his work history.
As is apparent from the work records subpoenaed from his former employer, the father has worked but little during the currency of the marriage. Although I have no doubt he has tinkered with cars and been engaged in various other ancillary ways with the motor industry (such as his trip to America which was more of a fun holiday than serious work), I doubt that such activities produced any income at all for the family. If there was such income, I have no doubt that it would have been spent by the father on himself.
It emerged at P-275 that in 1998 the father was considering changing his career. He was still considering it all the way through until 2002 when he engaged in a short period of work. Tellingly at P-276, he said that he had a cheque from another so-called employer in the sum of several hundred dollars but did not bother to bank it.
He worked from February until May of 2002 (exhibit A12), and at

P-277, he confirmed that he was still considering at that time what his future career ought to be. He did, however, concede that his employer’s work records, as tendered, were correct (P-278).
At P-280 he confirmed that in 2004 he was still trying to find his footing in the employment field, but I notice that during this period, which involved the first six months of his child’s life, he went overseas for two weeks. As he put it, “that had been organised prior to all sort of the situation coming to a head at that stage.” In my view, it is telling that he left his child for a period as long as two weeks when she was so young.

The husband confirmed at P-294 that he did not feed [X] while she was being breastfed and said at P-296 that he started work on 5 August 2005.
At P-298 he confirmed that he used to leave work and go to his mother’s and then finally go home, although he stayed sometimes overnight.
Why it was necessary for him to spend so much time at his mother’s is unclear. The father confirmed at P-297 that his boss was extremely flexible about his work times and there was no reason why he should not have attended work a bit later and left a bit earlier so as to spend more time with his family.
Although the father asserted, at P-315, that he had contributed $10,000 in cash towards the cost of the renovations of the former matrimonial home, the particular items he indicated as having formed the bulk of that contribution only amounted in total to $3,900 (P-317-8).
This sort of inaccuracy was typical of his, at least in part admitted, poor command as an historian, but in my view shows the general laxity of his approach towards his giving evidence.
The father confirmed at P-325 that he regularly attends race meetings, has been to the Indy Car Meeting in Queensland twice after [X] was born and that he attends races in Sydney.
At P-105 the father confirmed a past history of drug use, and at P-107 he did not accept Mr Papaleo’s report dated 10 November 2008 insofar as it recounted a history allegedly given by him to Mr Papaleo of his drug use. At P-109 he disputed a history from a Dr S reporting cannabis use from the age of 19 years, and more heavily from about

21 or 22 years.
At P-112 he admitted that he had tried LSD, cannabis, fantasy, cocaine and heroin.
At P-118 he confirmed that he spent a lot of time with his mother and that all his friends live in the area where his mother lives. He conceded that he spent a fair bit of time there.
At P-123-124 he confirmed that he had drunk about half a dozen scotches plus, further, a half dozen beers at the wedding on 18 August 2007. He confirmed at P-125 that he was intoxicated.
At P-126 he confirmed that on the fateful night in August 2007, he had mixed his alcohol with some medication, although he denied hitting his head with car keys.
At P-127 the father said that later that evening, he was lying on the bed saying “F this, F that”, and that he became agitated and called out (P-128) “kolo” to his wife. He described the phrase “kolo” as a term of endearment, albeit that its translation, it would appear, means bottom.
At P-133 and following, the father sought to explain his response to the arrival of the ambulance officers. He could not say why they were there but confirmed that he had not told the ambulance officers of his back pain. He told them he was hearing voices and that they were saying good things to him. He said he was annoyed by the arrival of the ambulance crew and dismayed by the arrival of the police. He said that it was only with the arrival of the police that he realised things were serious. He said (P-137):
“Well, I thought up until then it was a bit of a joke. I’d had quite a few drinks and I was taking it in good humour that these guys just – what do you want to do? Entertain them?”
He confirmed that he was taken to the hospital and subsequently discharged.
The father confirmed he had a criminal record, including retention of stolen goods (P-142). He confirmed that his parents had brought a priest to the house to remove a curse from him following his separation (P-144).
He conceded that he had not always seen his daughter on occasions when she was available to see him including 1 February 2009 (P-151). He attributed this to a mix up of dates. Given that it is his case that seeing his daughter is at the forefront of his desires in life, one would have expected him to have got the dates right.
Although he is proposing now that he be the primary carer of [X], he does not know the name of the school at which she presently attends (P-158).
The father did confirm that [X] fell over and hit the gum above her tooth when she was at his sister’s home in July 2009.
He confirmed that on at least one occasion while the children were playing “Simon Says”, he laid down and dozed off for a bit (at his sister’s house) (P-164).
He confirmed that his daughter sometimes comes into his bedroom and jumps on the bed and he also confirmed that if [X] came in with her mother and he was not dressed, he would cover himself up (P-173). He confirmed that it was his view that his daughter had been manipulated and coerced into acting the way that she does (P-184). Although he seeks that the child live with him, he has made no inquiries as to which school she would go to if she did (P-203).
In response to the mother’s allegation about a 2004 incident of violence involving Mr M, he said that he and Mr M had, in effect, skylarked about and that he had pretended to stab him (P-222). In my view at best his conduct on that occasion was that of a smart aleck.
Tellingly at P-229, when he was describing the first visits he made to see [X] under the Aiders and Carers regime, he was aware that there had been a request that his mother not attend the first two visits. The transcript of this passage is revealing (P-229):
“And you hadn’t asked your mum to stay home for those first two or three visits, did you? --- No. She wanted to come with me.
Yes. Does your mother, you know, she – obviously she loves her granddaughter and she wanted to see her? --- Yes.
Yes. And you can’t say no to your mother? --- No.”
It was the father’s position that he had had no interpersonal dealings with Ms P (P-230) but that he had paid her to be a witness for him at Court (P-230).

Mr K

He is the paternal grandfather. He was clearly very engaged with the matter and understandably partisan. He non-spontaneously volunteered the proposition, “I am not guilty.”
He confirmed at P-259 that his son goes to sleep from time to time during the day. He denied exposing his penis in the presence of his granddaughter and said at P-268 that she had never seen him naked.
It is sufficient to say that I have formed the clear impression that this gentleman was somewhat prudish in his demeanour and attitude, and I entirely accept his evidence that his granddaughter has never seen him naked. There would be no earthly reason for her to do so. Likewise, the suggestion that he walks around with his penis exposed is wholly and utterly unbelievable.

Ms K

She is the paternal grandmother.
It was obvious almost instantly that this witness was entirely un-objective and partisan. She volunteered, in relation to the events of

18 August 2007, that her daughter-in-law had thrown her out of their car before she left the venue. This gratuitous, unresponsive, voluntary observation was not in her affidavit material.
Having seen this witness give her evidence, it is sufficient to say that this is indeed a woman to whom her son cannot say no. Her other daughter confirmed that she is extremely protective of all three of her children. All her evidence and her demeanour were consistent with such an observation.
It is scarcely surprising in the circumstances of this case that Ms K detests her former daughter-in-law and describes any concerns she raises as lies, falsehoods and the like. Her attitude to her daughter-in-law was well and truly revealed by her interaction with the DHS worker.
I have no doubt that the grandmother wants to take [X] away from her mother, and would have no doubt that she would do nothing whatever to foment a good relationship were that to be the case.
I note, by way of illustration of the grandmother’s understandable maternal lack of insight, that she denied at P-283 that her son was drunk at the wedding when his own evidence was that he was. I also note that she was told not to attend the first supervised meetings at Aiders and Carers (P-296) but took it upon herself to do so anyway.
It is regrettable that she did because this soured the entire process because of the mother’s obsessive concerns about her attendance.

Ms F

Ms F is the owner of the Aiders and Carers business and unfortunately she, like almost all the other professional witnesses, has become partisan.
It is clear that the history of the mother’s relationship with those at Aiders and Carers has been troubled. It seems quite clear to me that the witnesses from Aiders and Carers have colluded in the preparation of their evidence. Indeed it emerged that part of the report, ostensibly written by Ms P, was in fact written by Ms F even though this would not be apparent from the document itself.
At P-213 Ms F told Ms P that there had been allegations of sexual assault by the father against his daughter. This in fact was untrue because those allegations did not emerge until June and July of this year.
All the evidence from the Aiders and Carers employees was tainted in this unfortunate way. Ms F, Ms P and Ms C have obviously known one other and been close colleagues for a long time.
It appears that at some point the mother took out an application to extend her intervention order against her husband and that this was perceived, whether rightly or wrongly, to extend to Ms P as well. That is why Ms P was removed as the supervisor. I have no hesitation in finding that Ms F has been greatly affronted by the mother’s conduct. At P-324 she stated:
“I can state categorically she did not attend for the intervention order.”
The trouble with this categorical statement is that I know that

Ms P did indeed attend for the intervention order not least because the father paid her for doing so.
It is clear that the mother was a difficult client, and that things went wrong almost from the start. I find that Ms F has, in part, been misrepresented by the mother in subsequent affidavit material, but it does seem clear that she discussed the tragic loss of her two sons with the mother to at least an extent.
I formed the clear impression that all the employees from Aiders and Carers were thoroughly decent people, but they have become involved in a proceeding which has a very heightened emotional overlay. Regrettably, they have been sucked into that vortex to the detriment of any kind of professional observation they might have made.

Mr G

Mr G was a palpably honest witness, albeit that I ruled one affidavit of his inadmissible for reasons I will return to.
Mr G confirms that when [X] and her father and his mother-in-law came over to them, as they usually did on Sundays, the pattern was that he would go out and buy what in effect was a sort of brunch. On the critical day, 12 July 2009, the children were all playing Wii bowling. He confirmed at P-375 that the children were not moving around the house when not playing. They were just in the living room or in the kitchen next door.
That picture is not just consonant with the evidence of the other adults called who were present in the house on that day. It is also consonant with common sense. [X] only sees her three cousins, who are roughly the same age as her (5, 7 and 9), on occasion, and it makes sense that they were all taking turns playing on the computer.
Mr G confirmed that on 12 July after several hours at home the family group went to the [F] shopping centre for a few hours and were back by 4 pm, and that [X] was taken home thereafter. Worryingly, he confirmed at P-379 his opinion that [X] had been asked to lie or create stories. In response to a question from me, he confirmed that [Y] was doing very well at school and was above average in his class.
For reasons I gave in a summary way, I ruled Mr G’s evidence in which he purports to give expert accounting evidence as inadmissible. I wish to expand slightly upon what I said at the time.
It is clear that Mr G is [occupied in the Financial Industry]. He is also the brother-in-law of the father.
Mr G did not comply with the family law requirements in relation to expert witnesses. They are no mere matters of form. Mr W, who was called to rebut Mr G’s report, complied (by and large) with these requirements and included a statement that he was independent of the parties and their legal representatives.
In paragraph 1.8 of his affidavit, Mr G said:
“The opinions I have expressed in this report are independent and impartial.”
Regrettably that is not the case. In paragraphs 2.1 to 2.5, Mr G sets out a number of factual assertions as to the employment of the father. In paragraph 2.3 he recorded that:
“Mr Kolovos advised that he took leaves of absence of employment when he was firstly renovating his marital home in 1998 after his marriage, then again in 2004 when his daughter, [X], was born.”
He went on at paragraph 2.4:
“Mr Kolovos advised that the only other time he was without gainful employment was when he sought self-employment, trying to establish his own business…”
At paragraph 2.6, Mr G recorded that Mr Kolovos was paid in cash by his employer and was giving approximately $500 per week to his wife.
As I recorded in my extempore reasons, those recitations (I only went so far as paragraph 2.4 in the extempore reasons) do not accord with my understanding of the evidence. Mr Kolovos was without gainful employment for very substantial periods of time and, as I have already made clear, any additional income he got he kept himself.

Mr Kolovos did not just take leave in 1998 after his marriage. He stayed on that leave effectively virtually through until 2005.
At paragraph 4.3, in coming to a conclusion, Mr G said:
“It is evident from group certificates sighted that Mr Kolovos was gainfully employed for a substantial period of his married life. It is normal to suppose that he would have contributed most, if not all, of this income to the benefit of the family’s living expenses.”
I do not accept that. As I find, Mr Kolovos’ income was kept in the main for himself and disbursed as he felt proper.
At paragraphs 3.5 and 3.6 Mr G sets out versions of the renovation issue, which self-evidently are hearsay. He was not directly involved in these operations. That is reasonable enough in one sense. As an independent expert he will be entitled to rely upon what he was told. The difficulty is that it was not made plain in his affidavit that this was hearsay, nor in the recitation of events given to him. Furthermore, his uncritical acceptance of what he was told, while understandable, destroys his impartiality as an expert witness.
I have no reason to doubt Mr G’s professional competence.

I repeat that I thought he was an honest witness. He was equally, however, a partisan witness.
Regrettably, I do not find Mr G’ affidavit as to accounting matters of any assistance whatsoever, and for that reason I excluded it.

Ms G

Ms G is the wife of Mr G and the sister of the father.
She confirmed at P-386 that her mother is a “mother hen” who looks after all three of her children. She went on at P-404 and following to confirm that all the children were playing on the Wii game. She confirmed at P-406 that she thought all the allegations were made up.
As with her husband, Ms G impressed me as an honest witness. She confirmed the picture that I think emerged generally from the witnesses in the household on 12 July 2009, that it was an active day with the children playing together in an unremarkable way.

Vincent Papaleo

Anyone reading this decision must feel a sense of dismay at trawling through these unending recitations, which themselves are only a small part of the evidence given. It is with a sense of relief that I turn to the evidence of Mr Papaleo.
I do not propose to do much more than to isolate some of Mr Papaleo’s more important evidentiary points.
At P-413, Mr Papaleo highlighted the significance in relation to [X]’s presentation to him of the lack of information that she gave spontaneously.
At P-414, when he asked her to tell him about the “willy”, she could say nothing. She eventually said, “It sparkles.” She was laughing uncontrollably and the whole episode was obviously silly. He said:
“This is not what you hear from children who are recounting traumatic events. It doesn’t fit.”
At P-417, Mr Papaleo confirmed that, unfortunately, he has enormous experience in sexual abuse cases. He conceded that there was a contradiction inherent between the degree of sexual knowledge being displayed by [X] and the fact that [X]’s presentation to him was simply not consistent with that.
At P-418 he expressed the view that it was less likely than more likely that she had, in fact, been exposed to sexual abuse. It is worth quoting verbatim what he said:
“I think it is less likely than more likely. I think, out of everyone in this room, there is only one person who has actually ever had contact with a child who has been sexually abused, and that is me. And it is not an experience that is easily forgotten, your Honour. These children are tremendously sad. They are stressed, they are traumatised. Horrible things have happened to them. They do not want to talk about it. It affects them across the different modalities of their functioning. You see problems with their socialising, their communication, their play. You see them affected by trauma of some sort, and in some way. And you are not seeing any of this and whilst it is true about the drawings, it is quite different if someone has – I do not exactly know how these drawings were produced… There are so many questions that cannot be answered and it doesn’t fit. But if, in fact, you find that the family was at the sister’s house and they were around and there was no opportunity for this child to have the experience that is alleged, then how does it all follow from there?”
On the same page, Mr Papaleo confirmed, however, that the fact of sexual abuse had become an embedded truth for [X].
At P-420, Mr Papaleo dealt with the incident about the allegation of the boy in school and that this was not true, and that [X] admitted it.
At P-429, Mr Papaleo expressed the opinion that if abuse was found not to have occurred then contact should re-occur.
At P-433, Mr Papaleo made it plain that he did not think it was appropriate to change the child’s residence given the primacy of her mother’s care. He said, “I think that that is a huge first step.” He went on to confirm that if the Court does not accept that abuse has occurred:
“Get this thing back into some kind of normality, accept the fact that this family has a long history of difficulty that is likely going to continue, regardless of what happens in this court today, and that we try and contain and manage it somehow.”
At P-436, he said:
“It may be that, without meaning to do so, and because she is an anxious parent, that Ms Kolovos has inadvertently and naively lead this information from [X].”
Mr Papaleo went on to suggest that it might be an appropriate case for further reporting by someone such as himself to the Court over the next 12 months, with external monitoring being more likely to give a better chance of an outcome. At P-441 he suggested that the reintroduction of [X] to her father, if ordered, should take place within a relatively short period of time of approximately four weeks.
I should record that Mr Papaleo impressed me as being fully competent to provide the opinions and advice that he did. They are plainly squarely within what has been a very lengthy experience of cases of this sort. Mr Papaleo was not shaken in any meaningful way in cross-examination, although he made proper concessions when cross-examined by both members of counsel. His evidence stands almost as a beacon of objective sanity in what is otherwise a very troubled case.

The evidence of Ms C

Ms C’s evidence, while acceptable in part, is plainly compromised in the same fashion as that of Ms F and Ms P. She has become highly partisan, not least because of the inappropriate conduct of the mother.
I note, in particular, that she saw her report as being designed to assist the Court in its deliberations. It is intriguing that a woman appointed to assist a child reconnect with her father should, on the basis of what were necessarily relatively fleeting contacts with the mother, take it upon herself to start expressing serious doubts as to the mother’s capacity to care for her child.

The evidence of Ms P

Ms P was the final Aiders and Carers witness called and indeed the final witness called altogether. It is clear that she said she was told about sexual abuse before the first visit to see the child. It is equally clear for the reasons already given that that is wrong.
Her evidence, once again, showed a highly partisan approach. She was clearly deeply affronted by what she saw as the mother’s improper and inaccurate allegations made against her. She plainly attended Court to give evidence for the father at the intervention order hearing to which reference has been made.
Ms P was not an objective witness although, for reasons I shall set out in my findings, I do accept some aspects of her evidence.

Findings of Fact

Against this necessarily lengthy and laborious examination of the evidence, I will now give, to the extent that I have not done so, my conclusions as to what actually happened.
Following their marriage in 1998, the parties, who were plainly very interwoven with their families, somewhat unusually did not choose to live together for six months. They both went back to their parents. They have very close relationships with their parents.
This is particularly obviously so with the father and his mother. His mother dominates him completely, and presented as a woman of very considerable and forceful personality.
The father has been spoilt and indulged, and has had at best a chequered work history.
The father has engaged in drug-taking in the past more than he is prepared now to admit and his work history is nothing short of pathetic.
The burden of making the home fell squarely upon the mother right from the start. She was in full-time gainful employment and her wages supported the household. The father’s wages were spent on himself, including his various car interests and travel related to car-related matters.
The father was essentially out of work for almost the entirety of the relationship and his income, when he was working, was low. I accept that he got other moneys paid in cash, although I have no reason to accept that this was the case at [C].
Any extra cash that the father got, he spent on his own interests. He was free to spend money as he wished because his mother was always there to bail him out.
The renovation work on the property in the first six months was of some moment, although there is absolutely no evidence as to what value it had in terms of increasing the value of the property if it did so at all.
The renovation work carried out by the mother, on the other hand, is largely supported by documentation that is, in any event, not denied as to at least 50 per cent.
As I have already made it clear, I do not accept that the father had large amounts of money earned in cash that he committed to the common weal of the marriage. I accept the evidence of the mother that she paid for all the renovation.
I accept that the mother drew down on her superannuation in the sums she asserted at the times she asserted because of hardship. I accept that this hardship was not caused by extravagance on the mother’s part, although I accept it may well have been to pay off outstanding credit card debts run up in the course of the ordinary expenses of the household.
I further accept, because the bank records show that it is so, that the mother’s parents made all payments on the mortgage after the mother was retrenched. The mother plainly paid the mortgage repayments before that.
I will never know who paid for the honeymoon, and it is now far too long ago to be of any moment. I accept that the mother bought the chattels she said she did for the prices she asserts. I do not accept that the father put in any money at the start of the relationship. He was not working at the time, and did not work thereafter.
I accept, although it might seem incongruous in that the parties immediately commenced to renovate the place, that the mother’s parents never offered the matrimonial home to the parties as a wedding gift. I accept the evidence of not just the mother, but her sister, Ms J, that the property had been tenanted and was in a habitable condition.
I accept that the loan in respect of the former matrimonial home was taken out and serviced by the mother and subsequently her parents alone, and that the parents paid it all out in 2005.
I accept the mother’s evidence that she was the primary carer of the child. This is entirely consistent with Mr Papaleo’s observations.
I accept that the mother was the primary carer of the child when she was very young and that the father did little, if anything, of any practical use to assist her. He plainly did not feed her for at least the six months that she was breastfed, and if one looks at the transcript carefully, his description of what he did appears to amount to little more than saying that he looked on to keep a careful eye on the mother while she was caring for the child.
I have formed the very clear view that the father was totally work-shy and generally inert. He is plainly in the habit of sleeping wherever and whenever he feels like it. Resting, as he does, from the hardships of under-unemployment and being waited on by his mother, the picture that emerges from the evidence as a whole, together with his evidence and demeanour in Court, is somewhat of a completely feckless individual. Even the renovation work, which occupied such an excessive part of the Court’s time, appears to have been performed by his relatives and/or friends.
This somewhat strange, unfulfilling relationship floundered along until the fateful events of 18 August 2007.
In my opinion, it is quite clear that on that evening the husband became drunk. But that is not all that he did. He went away with a cousin and some other people for a period of an hour. They drank during this time. There is no suggestion that the drinks at the wedding had run out. They could have gone on drinking perfectly easily where they were.
I think that it is more probable than otherwise that they went away and obtained and consumed some illicit substance such as amphetamines. That is consistent with the father’s admitted prior amphetamine use albeit that he has sought, in my view unconvincingly, to diminish its extent in his evidence.
That this is more likely than otherwise is confirmed by his erratic behaviour on the night of 18 August 2007. I accept that he may well have had back pain. It does not appear to have been sufficiently severe for him to feel it necessary to leave the wedding early. He stayed for a considerable period of time. Contrary to his denials, I accept the wife’s evidence that he was banging his head with his keys on the way home. Such an action might conceivably be consistent with severe back pain in any event.
When he got home he went to bed and, on his own version of events, was lying on it, swearing convulsively. The mother perfectly naturally became concerned for his health and rang an ambulance.
Contrary to common sense, but consistent with the father’s smart aleck personality, and in my view consistent with his having consumed something rather more than alcohol, the father responded extremely poorly when the ambulance officers arrived. Their independent records, which there is no real reason to doubt, show him as having been severely disturbed at the time.
Their concern was sufficient to cause them to call the police who arrested Mr Kolovos and took him to hospital where he was found to be non-psychotic and not suicidal. He was released quickly.
I find it is more probable than otherwise that having been arrested, the husband as it were pulled himself together to some extent. He realised that things were serious, and it may also be that the effects of any drugs he had taken were starting perhaps to wear off. I am not in the position to and do not profess to find on the basis of any of the evidence what substances Mr Kolovos consumed, still less to give any kind of expert assessment as to how long they might have lasted.
Nonetheless, something has to explain Mr Kolovos’ bizarre behaviour. Even accepting to an extent his explanations that he was behaving in a silly and stupid way, his behaviour was still plainly extremely bizarre.
Apart from anything else, it is difficult to see why he found the attendance of ambulance officers so offensive. If his state of mind was really such that he felt that they had been brought on a wild goose chase, all he had to do was say so. All he had to say to the ambulance officers was, “Look boys, I have got a lot of pain in the back and I have had too much to drink, I do not need any help”. He did not do so.
It also needs to be borne in mind that because of the father’s behaviour on that night, the mother ended the relationship forthwith and applied for and was successful in obtaining an intervention order against him. Whatever reservations the mother may have had up until that time, she had not in any sense sought to end the marriage. It ended right then. Common sense suggests that something extreme must have occurred for her to take a step so drastic.
Thereafter, in a sense, the die was cast.
I note, however, that the mother did make an early and perfectly appropriate offer for the father to spend time with [X]. This is not redolent of a no-contact mother determined by artifice and lies to sunder the father’s relationship with his child. It is a measure of the father’s stupidity and lack of judgment that he turned that offer down. He seeks to blame his then lawyers, since sacked, for his error of judgment. If this father really loved his daughter so much, he would have seen her in the presence of a supervisor.
I do not find for an instant that the father does not feel any affection for his daughter. It beggars common sense to assume he would embark upon a proceeding of this sort if he had no affection for her at all. Nonetheless, as I have already said, he is a somewhat feckless individual, and, while I suspect he would love to see his daughter, I do not think he for a moment really wishes to be her primary carer.
The person who quite obviously does wish to be the primary carer is the paternal grandmother. She impressed me as a person who, albeit in a rather proprietary way, clearly feels an enormous affection for her granddaughter. She insisted on coming to the Aiders and Carers organisation even though it was made clear to her that it would be better if she did not.
That brings me to the somewhat unfortunate history at Aiders and Carers. What I find occurred is that things went wrong almost from the start. This is patent from Ms P’s own notes. One aspect of the first interview that is a matter of concern is that, for whatever reason, it seems clear that [X] made a remark to the effect that her father flashed his “willy” at her, almost immediately after Ms P’s arrival. The evidence of the mother that this was something she had said hundreds of times is disturbing. One would have thought that the mother would find such conduct inappropriate in so young a child. She was after all then only four years old.
It is clear that the interrelationship between Aiders and Carers and the mother has been disastrous. I accept that the mother had a grossly over-developed fear of the influence of her former mother-in-law. Her endeavours to counter any influence on the part of the former mother-in-law only caused a rapid alienation of Ms P, Ms F and Ms C. The accounts given by those three persons, insofar as they relate to the mother’s attitude to her mother-in-law, are entirely credible.
Regrettably, however, for the reasons I have already indicated, it is clear that the three persons from Aiders and Carers all feel grossly affronted by the mother’s conduct. They have ganged up to support

Ms P in respect of the allegations that gave rise to the alleged extension of the intervention order. Their reports prepared for this Court are partisan on their face, and demonstrably so. This is unfortunate because I have no doubt that they are well-intentioned and sincere people. It is a measure of the mother’s lack of judgment and anxieties that she should have produced such an outcome.
Nonetheless, following Mr Papaleo’s first report matters appear to have settled down a bit. I step over, and set aside for the moment, the contravention applications and the plethora of argumentative material that the parties were all filing because they take the matter little further.
What eventually happened was that the allegations of sexual abuse emerged.
[X] appears to have made disclosure of the most serious allegations of abuse to her mother in bed on 12 July 2009. Thereafter, events moved with stunning rapidity. That is not surprising. These would be terribly confronting assertions. The mother was rapidly in contact with the police, her general practitioner, Ms R, and the Gatehouse Centre. Much criticism of this was made by counsel for the father. In my view, the robust cross-examination of the mother on these issues, doubtless on instructions, shows little credit on the father. A mother confronted with extremely serious allegations of child abuse could be expected to become somewhat overly-protective and emotionally engaged.
The evidence of the various practitioners to whom [X] was taken is not in any way conclusive, and in the case of Ms R was unfortunately partisan.
It is noteworthy that the Gatehouse Centre did not find any physical evidence of abuse.
In the ultimate the Court, like all the professionals in this case, is confronted by two inconsistent propositions. On the one hand, there are the drawings produced by [X] and exhibited in evidence, which everyone agrees could not ordinarily be expected to have been produced save by a child exposed to some improperly sexualised experience. They show her young cousins with enormous penises, her grandfather with a penis exposed and, likewise, her father.
On the other hand, one has to ask the question posited by Mr Papaleo. How likely is it that this would really happen?
I accept, as the evidence makes clear, that there must have been moments when [X] would be unobserved while in the company of her father, her grandfather, or her cousins.
The critical credibility issue is really the issue to do with her cousin, [Y]. Not only are these far the most serious allegations, but they are plainly the ones that gave rise to the outpouring of all the others.
It is apparent that at least in part, [X] has been lead to say some things which she herself admits are not true, e.g. the alleged incident with the boy at school.
The fact is that there is no physical evidence of penetration. The fact further is that [X] presents to Mr Papaleo as a child entirely devoid of the symptoms that would be expected of a child said to have undergone the experiences alleged.
One has to wonder whether, in the context of what was clearly a busy household with a largely open plan design, as is apparent from the exhibits, it would be possible for a nine year old to have the time to take [X] to one side, unobserved, undress both of them and commit the sexual acts described. This leaves aside the question as to whether he would be sufficiently physically precocious to become erect and to penetrate [X]’s vagina.
There is no expert evidence before me as to the precocity of boys of nine, and certainly none as to the circumstances of [Y] himself.
I think the robust common sense indicated by Mr Papaleo is the approach I should adopt. This is a very concerning matter but in the ultimate I am quite satisfied that it is far more probable than otherwise that [Y] has done none of the things to [X] that [X] has recounted. It is not inherently probable. There was not the time, and if in some way something happened it is almost inconceivable that none of the adults would have noticed. I put entirely to one side any suggestion that something did happen, and that the father and/or his family have conspired to suppress it. That is plainly not what occurred.
I move to the other allegations of sexual misconduct. Having seen the paternal grandfather give evidence, as I have said, there is no doubt that he does not expose himself.
Although it is possible that [X] may have seen her father with his penis exposed because he does not wear pants and might not have adjusted his dress when she burst in upon him, I do not think for an instant that he runs around the house chasing her with his penis exposed. It is an outlandish suggestion, entirely inconsistent with the prudish personality the father has. All the evidence suggests that the paternal grandmother and grandfather are in the house whenever [X] is as well as the father. The idea that they would permit him to run around the house chasing her with his penis exposed is ridiculous.
It therefore follows that the allegations of sexual abuse are not made out.
Insofar as it is asserted that there has been abuse of [X] giving rise to her falling over and cutting her lip, that matter can be dealt with shortly. [X] was running over and tripped, as children do, and hurt her lip. This was not the result of inappropriate supervision and still less gives rise to any question of any abuse. It is a measure of the rawness of the parties’ emotions that this absurd suggestion could have been pressed so strongly.
On the other side of the ledger, however, there is also criticism to be made. While it is understandable that the father and his family should have reacted with horror and incredulity to the very serious and untrue allegations of sexual abuse put forward by the mother, it is equally clear that individually and collectively they genuinely believe the mother has maliciously invented these allegations knowing them to be untrue for the purpose of denying them contact with [X].
Here, once again, the picture is clear in my opinion. I accept Ms R’s evidence that the mother is naturally an anxious person, and I note that that evidence is echoed by Mr Papaleo. I accept the evidence of

Mr Papaleo, which I have set out earlier, that these matters have been innocently co-created by the mother arising out of her concerns.
It is apparent that the mother is very worried that she may lose her home and that the paternal grandmother will take her child from her. Subconsciously, as I find, she has been so concerned about her daughter seeing her father that she has come to co-create with her daughter these very unfortunate allegations.
I do not know, and it is beyond my skill or abilities to say, why it is that [X] has produced the very disturbing drawings that she has. There seemed to be an implication in Mr Papaleo’s evidence that this may have occurred as a result of something done by some un-named third party. The difficulty is that all the things that lead me to conclude that sexual abuse has not occurred as alleged would apply with equal force to any other suggestion that she might have been molested by any third party. I am unable to say why it is that [X] has produced the drawings that she has but I do nonetheless say that I accept that she has not been the subject of sexual abuse. Indeed, I go so far as to say that I do not believe she has been sexually abused by anybody.

The disposition of the matters in dispute as to where [X] lives

Joint parental responsibilities

It is accepted that there should be joint parental responsibility. For all their limitations, both parents do love [X] and should have joint parental responsibility.
The written submissions of the mother laid great stress upon the alleged family violence perpetrated by the father. As I have indicated earlier, the mother’s Notice of Child Abuse filed in 2008 was in many ways an unsatisfactory document. As I have indicated, there is no suggestion that there has been family violence perpetrated by the father on [X] herself. The events of 18 August 2007 are plainly extremely regrettable but likewise do not persuade me that it is inappropriate to allow the father to play a role in [X]’s future. The other elements of family violence alleged are now so long ago in my view they are irrelevant. In my view the presumption in s.61DA applies.

Equal time

Neither party proposes equal time and it will not be ordered. It is clearly not in [X]’s best interests.

Substantial and significant time

The mother opposes the father spending substantial and significant time and the father proposes it ought to be in the context that he is the primary carer.
By way of preliminary comment, I note that it has been submitted, and in the strongest terms, by counsel for the father that the child should live with her father because the mother will simply not abide by the Court’s orders for [X] to spend time with the father.
I do not accept that submission. I note the evidence of Mr Papaleo and I accept it. In fact, it is a measure of the selfishness of the father’s position that he should seek to impose the trauma, understatedly described as “some pain” by counsel, of separation from her primary carer to live with someone who, at the moment, she believes has abused her. It is plainly not in [X]’s best interests to leave her mother.
This brings us to consideration of s.60CC of the Family Law Act 1975 (“the Act”). I have already found, and to the extent necessary I make it clear again, that this child will benefit from having a meaningful relationship with both of her parents. Although the father’s conduct in the past has been unsatisfactory such violence as has occurred is not sufficient to prevent him from spending time with her.

Section 60CC(3)(a)

The child has expressed, almost implicitly, a reluctance to spend time with her father, but that reluctance must be seen in the context of this dispute as a whole. [X] has been grossly over involved by her mother in the various controversies that surround her, and given her age I give little if any weight to her disinclination to see her father.

Section 60CC(3)(b)

[X] has an excellent relationship with her mother who has been her primary carer all her life. She also clearly has close relationships with her maternal family. I note, however, that subject only to the controversy over the allegations of sexual abuse by her cousins, [X] has an excellent relationship with the paternal uncle and aunt and their children. Her relationship with the paternal grandmother is difficult to assess in view of the very unfortunate course of events but it is clear that the paternal grandmother loves her. Her relationship with her father must be approached with caution in the light of the findings I have made.

Section 60CC(3)(c)

It is a matter of great concern that neither parent impressed me as being in the slightest bit interested in facilitating a relationship between [X] and the other family. That reluctance is only compounded by their respective extended families, although I note the helpful, albeit ultimately unnecessary, offer of assistance of Ms J.

Section 60CC(3)(d)

I do not propose to separate [X] from her mother for the reasons already given.

Section 60CC(3)(e)

Subject only to the obvious difficulties that the sexual abuse allegations have given rise to, there is no practical difficulty or expense involved in [X] spending time with her non custodial parent and his family.

Section 60CC(3)(f)

The mother is plainly well able to care for [X] although that observation must be qualified by the findings I have made as to the co-construction of the sexual abuse allegations. The father, in my view, would have very limited ability to care for [X] on his own as he has never done so. Contrary to the submissions of the mother I accept that the paternal grandmother would be able to provide such assistance as would be necessary for such time as [X] spends with her son.

Section 60CC(3)(g)

This subsection adds nothing in the context of this case.

Section 60CC(3)(h)

Irrelevant.

Section 60CC(3)(i)

This matter is problematic as the mother’s attitude towards the child is grossly over-protective and the father’s is relatively insouciant. In this regard I incorporate by reference my remarks made earlier about each of the parents.

Section 60CC(3)(j)

I have already dealt with the issue of family violence above.

Section 60CC(3)(k)

This subsection adds nothing further in these circumstances.

Section 60CC(3)(l)

I very much feel that whatever orders I make, further litigation will be difficult to avoid.

Section 60CC(3)(m)

As I have stated before, the evidence of Mr Papaleo stands as a shining beacon in this case. It was very helpful advice given by an extremely experienced and competent professional in his field of expertise.
In the circumstances, I am minded to adopt Mr Papaleo’s recommendation that time recommence relatively rapidly. I wish to have further input from Mr Papaleo before defining the timetable in detail.
I have earlier indicated that I do not propose to order that [X] live primarily with the father. This is not to say, however, that such an order might not ultimately become necessary in the event that the mother does not abide by the Court’s orders. Nonetheless, it is to be pre-supposed that the mother will, hopefully with the assistance of the ongoing counselling I am going to order, come to terms with this disastrous episode.
That may be a counsel of perfection. I note that Mr Papaleo felt that this family needed something extra to get over the enmeshed dispute that they have all been in for so long.
I also accept Mr Papaleo’s opinion that it is desirable that this case have ongoing reporting for some 12 months or so, and Mr Papaleo seems entirely the appropriate person to conduct it.
I will list the matter for further hearing if the parties, having had input from Mr Papaleo, are unable to come to agreement as to the timetable for future time to be spent by [X] with her father.
I would also wish to hear further from Mr Papaleo if the parties are not able to agree about what counselling may or may not be appropriate for [X] and both parents to move forward from the impasse that presently exists.

Property matters

The pool

The mother accepts that father’s suggested value of $493,500

(see submissions in reply, page 29). The pool is, to all effects and purposes, the matrimonial home.
Each side should retain the vehicles in their possession, and the mother should retain the matrimonial chattels, less those conceded to be returned to the father. There is no expert evidence as to the value of any chattels and it is not possible to accept the evidence

(or concessions) of either party on this aspect of the case.
I note the very proper concession of counsel for the father that in the circumstances of this case, no adjustment is appropriate in relation to the superannuation of the parties. That would have been my view in any event.

Contribution issues

Here, the overwhelming contribution was made by or on behalf of the mother. It would be hard to imagine a starker picture.
The father scarcely worked during the entirety of the relationship, and the mother worked until the birth of the child.
The mother drew-down $30,000 of her superannuation entitlement to cope with the hardship occasioned by the parties’ lack of funds.
It is clear that the mother’s parents paid the mortgage and ultimately provided the entirety of the payout figure. When one bears in mind that the original purchase price was $110,000 and the payout figure was over $90,000, the contribution is clear.
This was, of course, a contribution made in 2005. At that time, the parties were still married.
In Gosper (1987) FLC 91-818, Fogarty J reviewed the authorities in a passage which was approved by the Full Court of the Family Court in Kessey (1994) FLC 92-495 at page 881, 149. In Gosper, Fogarty J said relevantly:
“The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to the court in such a case to look at the actuality and treat that as a “financial contribution made directly…on behalf of” the spouse relative…
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W’s case at p-75, 527…
In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.”
In the circumstances of this case, bearing in mind the, at best, lukewarm relationship between both the father and the mother with their respective in-laws during the marriage, and my finding, amply supported as I believe it to be on the evidence, that both parties have at all times been closely aligned to their respective family members, it is clear that any contribution advanced by the mother’s parents was intended to benefit her alone, albeit that she was married at the time.
Consistent with the approach indicated by Fogarty J in Gosper and approved in Kessey and indeed in other cases, I would find that such contribution was made for the mother’s benefit alone.
The father’s contribution involved such renovation work as was done by him and his friends and relatives at the commencement of the relationship. There is no evidence that this work increased the value of the property, but it certainly stands to the father’s credit in the ledger. It is more than offset, however, by the moneys spent on renovation out of the mother’s redundancy package.
I accept that the father’s mother gave him both money and food from time to time. This was done very much to benefit him alone, and did so.
I also accept that the paternal grandmother paid some bills from time to time, albeit that it is not possible to put any amount on it.
Insofar as loans are asserted to be extant by either set of parents or by family members, I have no hesitation in finding in the face of the evidence as a whole that these moneys have been advanced out of love and affection, and will never be required to be repaid.
The clear picture that emerges is that each side has drawn upon the assistance of their extended families to conduct this litigation in many thousands of dollars. These are closely-knit families with an enormous affection for one another and the idea that they would sue each other for debts arising out of circumstances like these is entirely inconsistent with all of their behaviour in support of one another in this proceeding.
As I find, therefore, the vast bulk of the purely financial contributions that arose in this marriage were made by the mother and/or her family.
Insofar as the other aspects of the relationship are concerned and count toward contribution, it is clear that, from 2004 until 2007, the mother did not work in order to look after [X]. She did the vast majority of the care of [X] and I do not accept the father’s version of events in this regard at all.
I assess contribution to the pool as 85 per cent by the mother and

15 per cent by the father.
That is, as I would understand it, an extreme finding in the context of family law disputes as a whole. It is one, however, that the evidence leads to in this case.

Section 75(2) factors

There is no evidence that either of the parties suffers from any significant ill-health. Although the father has been unable to work (according to him because of the stress of the case, but his work history would not make work all that likely anyway) since February of this year, there is no reason once this case is over why he should not at least in theory be able to recommence.
The mother will not be able to work full-time at least for some time, and in the light of her fragile personality, future work may be open to question. [X] is of course reaching an age at which school will take up for much of her time, but even if the mother obtains work it will plainly only be part-time.
Both parties will continue to receive significant assistance from their respective families.
Bearing in mind the costs associated with bringing up a child, and the fact that the father will never pay any more child support than the minimum at which he is assessed, I say that in all the circumstances the mother should receive a loading in her favour as to future needs of a further 10%.

Just and equitable

I do think that an outcome of 95% to the mother and 5% to the father would be just and equitable.
The father did, either himself, through his mother or through his relatives, make contributions from time to time.
I also have to consider the fact that although this seems to have been a peculiarly loveless marriage, with the father spending disproportionate amounts of his time with his friends from the Oakleigh area and with his parents, nonetheless the relationship endured for some seven years. The parties must have given each other some measure of comfort and support during that time. After all they produced a lovely daughter during this period.
In all the circumstances, it is my opinion that an appropriate property division should be 90% the mother and 10% to the father.
In the circumstances, I would be minded to order that the mother pay the father 10 per cent of the value of the matrimonial home, failing which the home should be sold and the proceeds divided in those proportions.
Each side should retain the chattels in their possession (apart from any conceded to belong to the other) including their cars. No orders have been sought in relation to superannuation.
I will produce draft orders designed to give effect to those aspects of this decision that are capable of sustaining them (effectively the property orders alone). For the reasons I have given, I wish to hear further evidence or alternatively, see an agreement between the parties as to the precise regime that should be put in place to enable [X] to recommence seeing her father as soon as practicable.

I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B Evans

Date: 24 November 2009