KYTE & ASTIN

[2014] FCCA 2684

FEDERAL CIRCUIT COURT OF AUSTRALIA

KYTE & ASTIN [2014] FCCA 2684

Catchwords:
FAMILY LAW – Protracted parenting dispute – father making scandalous assertions about the mother and his family, including drug use, prostitution, incest and encouraging the children to have sex with adults – allegations wholly unfounded – father being abused as a child – father aggressive and overbearing to mother and others – family violence established – father supressing evidence of DHS intervention with subsequent partner and child – father lacking in insight – whether father’s time should be limited because of risk factors notwithstanding his love for the children – orders made as sought by Independent Children’s Lawyer.

Legislation:
Evidence Act 1995, s.140
Family Law Act 1975, ss.4AB, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DAC

Summerby & Cadogen [2010] FMCAfam 109
Goode v Goode [2006] FamCA 1346

Applicant: MR KYTE

Respondent: MS ASTIN

File Number: MLC 7360 of 2011

Judgment of: Judge Burchardt

Hearing dates: 15, 16 & 17 September 2014

Date of Last Submission: 17 September 2014

Delivered at: Melbourne

Delivered on: 5 December 2014

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Brookes

Solicitors for the Respondent: Danielle Webb Lawyer

Counsel for the Independent Children’s Lawyer: Ms Bonney

Solicitors for the Independent Children’s Lawyer: Glezer Lanteri & Associates Pty Ltd

ORDERS

1. All previous parenting orders are discharged.

2. The mother to have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”).

3. The children live with the mother.

4. The children spend time and communicate with the father at a contact centre or subject to the supervision of a professional supervisor, if possible Mr K, on four occasions in each calendar year, with any expenses of such to be paid by the father and such time to occur:

   (a)At Easter at a time to be agreed but in default of agreement on Easter Saturday between 12:00pm-2:00pm;

   (b)On 15 June of each year if a Saturday, or the next succeeding Saturday, between 12:00pm-2:00pm;

   (c)On Father’s Day at a time to be agreed but in default of agreement between 12:00pm-2:00pm;

   (d)Over the Christmas celebration at a time to be agreed but in default of agreement on Christmas Eve between 12:00pm-2:00pm.

5. The mother is authorised and permitted to apply for and receive an Australian passport for the children X born (omitted) 2007 and Y born (omitted) 2009 without first obtaining the written consent of the other parent.

6. The Airport Watch List order contained in order 2 of the orders made in this Court on 21 September 2011 be discharged and the Australian Federal Police be requested to remove the names of children X born (omitted) 2007 and Y born (omitted) 2009 from the Airport Watch List currently in force at all points of international arrival and departure in the Commonwealth of Australia.

7. In the event that the mother intends to take the children overseas, she is to provide 20 days’ notice in writing to the father with such notice to contain dates of departure and return, flight details and details of the proposed itinerary.

8. The order appointing the Independent Children’s Lawyer dated

   
   21 September 2011

   be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 7360 of 2011

MR KYTE

Applicant

And

MS ASTIN

Respondent

REASONS FOR JUDGMENT

Introductory

1. This case is concerned with the best interests of two young children, X born (omitted) 2007 and Y born (omitted) 2009 (“the children”). As the positions of the parties have finally crystallised, the father seeks that there be an order for shared parental responsibility and that the children spend six hours per week with him, unsupervised, every Sunday.  He seeks additional time at Christmas and on birthdays.

2. The mother’s countervailing position is that she should have sole parental responsibility, and that the father spend no time whatever with the children.  She also seeks passport orders.

3. The position of the Independent Children’s Lawyer is that the mother should have sole parental responsibility and that the father should spend four short supervised periods of time with the children each year.  The Independent Children’s Lawyer has expressed no view about passports, which the father opposes.

4. For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer in relation to the spend time regime, and I will make orders permitting the mother to apply for passports for the children without first obtaining the permission of the father.

Agreed matters

1. This proceeding has been underway since August 2011, and has thus far generated no less than four full files.  There is obviously a welter of competing information.  Uncontroversial matters are relatively thin on the ground.

2. The applicant father was born on (omitted) 1976.  He never knew his birth father and his relationship with his mother has been extremely troubled for reasons to which, unfortunately, it will be necessary to return.

3. The father was the subject of what he described as a “30-day marriage” in 1996 (revealed by his own mother’s subsequent affidavit, and not previously revealed by him). 

4. The father also has a child, Z, born (omitted) 2001, by another woman altogether.  He has played no meaningful part in the child’s life.

5. The mother was born (omitted) 1977. 

6. The parties commenced a relationship in either 2005 or 2006.  Nothing turns upon the parties’ differing recollections in this regard.  They both agree that they never formally cohabited, although they did produce the two children. 

7. The parties separated in 2010.  The father’s evidence is that the immediate cause of separation was that the maternal grandmother mistakenly referred to the applicant father as Mr M (his real name is Mr Kyte), Mr M being the name of the mother’s former partner, whereas the mother asserts that the relationship ended after she found the father in bed with another woman.

8. Following separation, the children spent no time with their father for approximately a year until the Court made orders for supervised time.  The supervised time regime has subsisted effectively from then until now (subject to any failures for it to occur, which themselves are the subject of dispute), supervised extensively both by Ms M and Mr K.

9. The father’s troubled history with his mother included a number of serious assaults upon her, which led to his incarceration in Pentridge Prison at the age of 17.  The father appears to have been the subject, according to him, of some 15 Intervention Orders taken out by a number of people from time to time, including his own mother, the maternal grandmother, the mother and very possibly others.

An overview of the father’s position as expressed in his affidavit materials and other exhibits

1. The parties, as I have already indicated, have filed an enormous amount of materials.  It is not appropriate to work through each and every affidavit filed.  The position of each of the parents is clearly set out in their materials.

2. The father makes a number of very serious allegations against the mother, the maternal grandmother, the maternal family generally, and his own mother.

3. Putting these distasteful matters as shortly as one can, and accepting that what follows is merely a paraphrase which may even omit some matters, the father’s position is that the mother and the maternal grandmother grew up in sexually promiscuous families and that, in each instance, neither of them had a father in their lives.  He accuses the mother of being promiscuous, both before and during her relationship with him, asserting that she had sex with Mr M during the currency of the mother’s relationship with the father.  He further alleges that the maternal grandmother had had sexual relations with Mr M.

4. The father asserts, and has done so on numerous occasions, that the mother is drug-addicted (particularly in relation to marijuana), a prostitute who sells herself to pay for her drug use, a person given to excessive consumption of alcohol, and determined to alienate the children from him.  He maintains that the mother is sufficiently dissolute to have encouraged X to have oral sex with adult partners of her own, and thus infect her with warts on her mouth.  He also expresses dark concerns as to the fact that X has from time to time had vaginal warts also, even though I note in passing that it seems clear that these are normal potential childhood infections.

5. The father further maintains that his own mother was promiscuous, having sex in front of him on occasions when he was a little child, sharing a bath with him when he was 10 and permitting a friend, or child (he is at times not entirely clear) of her then partner, to sexually abuse him. 

6. I should interpolate and say that whatever knowledge the paternal grandmother had of these matters, and I will return to it when I deal with the paternal grandmother’s evidence, one thing that does seem clear is that tragically Mr Kyte was undoubtedly sexually abused as a child.

7. The father’s attitude to the mother is illustrated by this extract from paragraph 10 of his affidavit filed upon 6 March 2013:

   “…Ms Astin has a care free attitude to sleep around without worrying about the future or consequences of her actions which show the signs of an unstable person, thirdly Ms Astin does not care about her health or physical wellbeing having a nympho maniac disorder as she was sleeping with her ex Mr M @ the same time and her ex was also having a torrent [sic] affair with her mum to which I can once again produce @ final hearing from a number of people, including a pastor from the (country omitted) community.”

8. As an appendix to that same affidavit, the father annexed a so-called family tree of the mother’s family, a document he has sent to other persons from time to time.  It is a catalogue of criticism, some, as it turns out, not inaccurate.  Under the mother’s heading, he wrote:

   “5 children, 2 Alive with 3 being aborted to 4 different fathers.  Unable to comment further on the past two years.”

9. The father has been ordered to undergo a number of counselling and other courses designed to assist him with his difficulties from time to time by the Court.  On any view, his performance of those obligations has been tardy.  An important aspect of the matter for present purposes is the father’s position that the anger management course he has done this year has, so to speak, enabled him to see the light.  It is his position that he now can control his anger. Whereas previously he would have said he “hated” his own mother – and indeed, I would infer, the respondent mother in this case – he would now say he was “disappointed”.

10. It should be noted that on 29 January 2014, at a time when the father was seeking to have the matter adjourned to complete his Men’s Behavioural Change Program, he took the opportunity to file a series of disturbing documents (exhibit A1 filed 29 January 2014) including, most particularly, a statement apparently made to (omitted) Police about his mother.  That document speaks for itself.

The affidavit materials of the mother

1. It is the mother’s position that the father was violent, and controlling, and abusive, throughout the relationship.  This explained the abortion that she had during the relationship.  She further said she had another abortion when she was 18 because she felt too young to become a mother. 

2. The mother denied the father’s assertions that she is (country omitted).  Her mother was of (country omitted) extraction, but her father was a (country omitted).  She said her family were a warm and loving family.  She denied the numerous assertions of criminal conduct made against them by the father. 

3. The mother was subsequently driven to concede that she was untruthful in this regard, as her brother does indeed have a significant criminal history, and an uncle from whom she says she is estranged (something that does not fit comfortably with her assertions about the happy close-knit family) is apparently a leading figure in a (omitted) bikie group.

4. The mother denied being promiscuous and said that she had never abused alcohol or drugs.  She provided a considerable number of clean drug screens in support of this proposition.

5. The mother’s affidavits depose very strongly to the mother’s belief that the father is obsessed with her, is stalking her, and, in part, using the children to seek to control her further.  She would like to be able to take the children overseas to travel, as and when the opportunity presents.  She is not a (country omitted) citizen and does not own land there.  The mother’s evidence is that in more recent times the children have increasingly not desired to go and spend time with their father, and she is of the view that that wish should be respected.

6. The mother thinks that the father is obsessed with sex and she appended a number of photographs of the father allegedly taken overseas (see exhibit G to her affidavit sworn 23 January 2014) which were not the subject of cross-examination, and other text messages sent during the currency of the relationship between them by the father to other women in support of this proposition.  She deposed that the father knows no boundaries and she is scared that he will abuse the children if they are left unsupervised in his care.

7. The mother deposed that the father has significant alcohol problems and this is part of his lack of boundaries to which she referred.

Some observations about the above paraphrase

1. It is immediately obvious that the above paraphrase is a very truncated and limited paraphrase of the parties’ very extensive affidavit material.  I have not dealt, for example, with the living arrangements of the parties (although I will return to that matter) and there is all too much that could be recorded.  I have read every affidavit and its annexures carefully and do not think it is necessary to go into greater detail than I have.  That is because there is a large amount of independent evidence from professional witnesses available which gives further flesh so to speak to the parties’ positions and because they gave extensive evidence before the Court with which I will deal in greater detail.  So I now turn to the evidence from the professional witnesses.

The Family Report of Ms K dated 17 April 2012

1. This was the first of the various family reports and professional examinations to which this case has given rise.  Having detailed the identity of the children and the parties and the commencement of the relationship in about June 2006, the end of the relationship was recorded at paragraph 4 as:

   “4.    According to Mr Kyte the circumstances which led to the breakdown of the relationship resulted in “the big fight” between him and the maternal grandmother, and ultimately Ms Astin.  From his perspective, he became angry towards the maternal grandmother for allegedly calling him by the name of Ms Astin’s previous partner “Mr M”, resulting in a verbal altercation between them, and him calling her a “slut”.  The father reported that all women connected “to her [maternal grandmother] end up being whores”.  Mr Kyte also denied the family violence allegations in terms of having perpetrated physical violence towards Ms Astin, but stated, “I will kick things” and that he’s “kicked Ms Astin [the mother]”.  Furthermore, he also focused on the violence perpetrated by Ms Astin’s brother, suggesting to “put restraining orders out on him”.” 

At paragraph 14 the report writer recorded Mr Kyte saying:

“14.  He acknowledged that his mother is “100%” on Ms Astin’s “side” and expressed his ongoing anger towards his mother, stating that he “hates” her, and reported having witnessed her whilst growing up having sexual relationships with her partner.   He also alleged that his mother’s previous partner having had physically abused him as a child and that this person’s friend was a pedophile resulting in him also being sexually abused by him.  He stated disclosing the childhood sexual abuse whilst aged 17, emphasizing his level of intense anger and rage at the time stating it lasted up until the age of 21.  Mr Kyte reported that at the time he did not engage in therapeutic counselling support in order to address alleged trauma, and abuse issues.  Mr Kyte acknowledged that it was during this time that he projected violent behaviour towards his mother and that he had also been incarcerated.  He denied any current themes of intense anger and violence in more recent times and views this behaviour as episodes that feature only in the past and thus, denied perpetrating family violence towards the mother.  Despite this, he reported an incident of self defence towards the mother, resulting in him kicking her.  He nevertheless, suggested dealing differently with anger at this point in time and stated that he tends to “take a deep breath” and “has a glass of water”, thus, denied any ongoing alcohol abuse issues.”

1. The family report writer also recorded the mother’s concerns about the father, which I believe I have generally paraphrased already above.

2. I note that the paternal grandmother Ms B also attended the interview and did so clearly in a partisan way to support the mother’s position as against the father.

3. The children were pleased to see their father with whom they displayed a warm relationship and likewise with their mother.

4. The report writer was somewhat concerned by the excessive gift giving by the father to the mother and recommended a Post-Separation Parenting Course to assist the father “in order to enhance his own coping strategies with the children during this particularly stressful period”(paragraph 41).  At paragraph 42 the report stated:

   “42.  Due to the discrepancy in terms of the information provided by Mr Kyte and Ms Astin regarding the alleged family violence perpetrated by him, it remains a limitation of this assessment in order to be conclusive about this significant issue.  However, given the father’s substantiated history of serious physical assault and threatening behaviour previously towards his own mother, including previous incarceration it remains a concern for the writer that Mr Kyte appeared to somewhat justify some of this behaviour towards his mother due to his level of intense anger towards her, whilst also minimising the aggression towards Ms Astin.  The writer recognises that the effects of sexual abuse often results in the survivor experiencing an intense state of anger and that this is a common, and valid response.  In addition, it is also disconcerting that given Mr Kyte’s past anger issues he did not address these emotions via a therapeutic process.  This inevitably creates a sense of unease with regard the father’s level of resolution, healing and true reparation from such negative emotions.  Also, given the father’s history of poor impulse control it remains unknown as to how resolved this is or not for him, and if in fact such behaviour has changed.  Therefore, it is probable that Mr Kyte lacks insight with reference to the repercussions of his alleged family violence and in terms of taking genuine responsibility for his behaviour, which possibly suggests a poor prognosis for change.  Thus, in order to err on the side of caution, the writer’s recommendations will prioritise the emotional and physical safety needs of both the mother and the children, particularly given that such allegations of violence perpetrated by the father are not new and have occurred previously in terms of him having assaulted his mother.  These past and present allegations of violence and his forensic history is significant and is also consistent with the cycle of violence theory suggesting that such patterns are often repeated, provided that the perpetrator continues to not take responsibility for their violent behaviour and perpetually shifts the blame onto the victim.  Though it may be a challenge for Mr Kyte to engage in an individual counselling process particularly aimed at responding to violence and aggression, the writer strongly recommends that he engage in a Men’s Behaviour Change Program.”

1. The writer went on to propose alternative supervised time regimes depending on the findings that the Court might make.

The interviews with Dr T

1. Dr T saw the mother in August 2012 and provided a report dated 20 August 2012.  That report says on page 1:

   “The Father refused to attend his appointment on 7^th August 2012 because he was not prepared to pay for the report.”

2. Subsequently the father attended on 1 May 2013 and Dr T produced a report 2 May 2013.  The two reports are annexed to Dr T’s affidavit filed 30 May 2013.

3. I do not propose to paraphrase Dr T’s report in any great detail as it speaks for itself.  It records the various matters that the family report, the Court and the parties have raised.  I note that the mother said that separation took place when she found the father in bed with another woman in October 2010.  She denied drinking at all and all the allegations of substance abuse or criminal history.

4. I note that although the mother’s father left when she was young and she has never known him, her mother subsequently repartnered to a (country omitted) stepfather whom she described as a stable, protective and loving figure in her life (page 8 of 20). 

5. The mother described the relationship with the father as being extremely volatile and told Dr T that during her pregnancy with X the father kicked her.  She asserted at page 9 of 20:

   “Mr Kyte was insecure, possessive and morbidly jealous.  He was constantly checking and questioning her, and would allege that she was unfaithful, at the same time, denying his own infidelities.  He was possessive of her mother, manipulative, and when things broke down, abusive.”

6. On the same page she asserted:

   “She believes that he has mental problems, suffers variable moods as well as personality problems being self centred and lacking responsibility.” 

7. Having described the negative effects on her of the relationship with the father and its sequelae, Dr T set out his conclusions.  His diagnosis was (page 10 of 20):

   “Ms Astin has an Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation.”

8. At page 11 of 20, Dr T recorded:

   “1.    Ms Astin remains concerned as to the ability of Mr Kyte to parent the children and was strongly of the opinion that the current supervised arrangements are still required.  She continues to live in fear of him and is constantly anxious in this regard. 

   2.    She has an Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation.  Ms Astin believes she requires some ongoing counselling order to cope with the post-separation issues involving Mr Kyte as well as her concerns in regard to the children, particularly X. 

   3.    Throughout the assessment, Ms Astin impressed as someone who would not be regarded as suffering from a psychiatric condition which would render her a risk to herself or her children.”

9. The report on Mr Kyte is dated 2 May 2013.

10. Mr Kyte noted that he now believed that his gifts were appropriate, buying the children educational things such as A4 pages with stickers (page 14 of 20).

11. The father was not sure he would be able to continue to live in his residence because his mother was taking him to the Supreme Court for $90,000 borrowed from his grandmother.  He went on to say (page 14 of 20):

    “Whilst these have stressed him significantly, he has formed a relationship with his current partner, Ms S aged 29.  She is pregnant to him and they plan to move in together later on. He has assiduously kept her out of the picture in order not to impact upon the children’s lives in accordance with his previous experiences of having his mother have various people in her life.  Similarly he indicated that he was aware that Ms Astin has a new friend.  Given that she had been pregnant twice before meeting him and had required an abortion to another man whilst she was with him, Mr Kyte holds similar concerns about her and her behaviours.  I did point out to him that he too had re‑partnered and was about to introduce someone to the children, but he seemed to see this different, no doubt on the basis of his very firm conviction to properly care for the children now that he was having increased contact with them.”

12. Mr Kyte went on to itemise the courses he was attending and stated (page 14 of 20):

    “He believes he has modified his behaviours and is particularly concerned to do so lest he jeopardise his relationship with the children.  He refuses to become negative in respect of the forthcoming proceedings, both in the Family and supreme Courts.  He talks to his Counsellor and intends to continue to see him fortnightly for the time being.  He thinks he is coping better as a result of the treatment and the courses and the information obtained from those.  He has learned to take responsibility and has always done so in regard to the girls he believes.  He took out private health cover for them and always provided well for Ms Astin when they were together.”

13. The father dealt in some detail with the very sad and distressing history in relation to his mother’s partner and his son when he was young and the very difficult consequences that had given rise to in terms of his criminal and anti-social conduct.  He also dealt with the Intervention Order taken out by the mother and the Sherriff’s proceedings arising from it.  He stated that the mother “acts manipulatively and vexatiously against him” (page 15 of 20).

14. Having dealt with his childhood (and his excellent relationship with his own grandmother) and his difficulties at school and work history, Mr Kyte described his relationship with Ms Astin.

15. Having met her on online dating website RSVP he said he started chatting to her at 8.15 pm and at 11.30 pm she was in his bed.  He said he would drink and she would smoke dope.  He would give the mother money and pay all the bills, but they never lived together because she would not commit.  At page 17 of 20 he recorded:

    “The relationship ended when her mother called him ‘Mr M’.  This was because she was seeing Mr M and he was outraged by the fact that Ms Astin would take Mr M and visit her parents with the children.  He lost control.  He denies that Mr M and Ms Astin had a platonic relationship.  At that time, the “shit hit the fan”.  That was their last fight.  There had been an abortion previously which Ms Astin had undergone because Mr M was the father.  He made various negative comments about her mother who also had four children to four different men.  He believes that Ms Astin is much the same.  He does not go along with her claims of innocence. 

    He acknowledges that he has sent abusive texts to Ms Astin, her mother and his mother.  Following the separation he was miserable.  He became depressed.  He wasn’t seeing the kids.  He was working flat out and did so six to seven times a week.  He would fly to (country omitted) and had various relationships.  One of those allegedly caused Ms Astin to consider their relationship was over.  It was already over before that.” 

16. In a mental state examination at page 18 of 20, Dr T recorded:

    “Affect- He related intensely but was co-operative with the requirements of the interview.  He spoke with considerable enmity directed largely towards his mother and to a slightly lesser extent Ms Astin.  He was passionate in defence of his relationship with the children and there are indications that he has undertaken a variety of courses, continues to have some treatment, and is totally focussed on maintaining and increasing his relationship with the girls.  His account was not accompanied by emotional distress.  He was not agitated. 

    Talk- His speech was mildly pressured.  He spoke with intensity.  There were no unusual notions or ideas, evidence of thought disorder or delusional beliefs.  There were depressed and anxious themes.”

17. Dr T’s diagnosis was that:

    “Mr Kyte has an Adjustment Disorder with Anxious Mood, a Conduct Disorder of Childhood, and a Personality Disorder with Antisocial and Angry Traits.”

18. Under the heading ‘Summary’ on page 18 of 20, Dr T, recorded relevantly:

    “Mr Kyte firmly believes all of what occurred to him.  He provided a believable account in respect of various aspects of what he described, in particular the sexual experience he experienced at the hands of his mother’s partner’s stepson, A.  This matter was pursued through the Court and ended with a conviction against A. 

    All this has left him with unresolved issues in regard to his relationship with women who he experiences as either bad (like his mother) or angels (like his grandmother).  It was his preferred view that Ms Astin is similar to his mother, having become pregnant to other men both before and during her relationship with him.  It is his account that he adored her and wanted to have a family with her.  However, Ms Astin’s account is different, alleging that he was possessive, jealous and controlling, all of which may also be true.” 

19. Under the heading “Opinion”, Dr T reported a number of matters favourable to the father including his continuous history of work, his unequivocal affection towards the girls, and the apparent benefit to him from counselling and attending at various courses.  He recorded inter alia:

    “…I regard Mr Kyte as having made a genuine attempt to rehabilitate himself and whilst there are clearly unresolved issues in regard to Ms Astin and his mother, he appears genuinely focussed on ensuring that his behaviour does not incur any further interruptions to his relationship with his daughters. 

    In such circumstances, provided there are no concerns in regard to his current supervised access, I see no reason why Mr Kyte cannot move to a more liberal and unsupervised set of contact arrangements, albeit with regular interviews to monitor the situation. 

    It is likely that his insight into the connection between his alleged abuse at the hands of his mother who he continues to hate, and the connection between those experiences and the various abusive behaviours metered out to Ms Astin is limited.  He continues to see himself as the victim of both Ms Astin and his mother, and as such, there is a possibility that he may well repeat aspects of those unresolved issues with his current partner.” 

Report of Ms M

1. Ms M filed an affidavit sworn 25 June 2013 which annexed a report dated 13 June 2013 and a final summary dated 18 June 2013.  She had, in fact, already made two earlier reports, but this report covered the period from January 2012 to June 2013.  I note on page 7 of 38 Ms M records in January 2012:

   “X’s presented with spots on her legs, groin area, etc.  This was diagnosed as being a viral infection called Molluscum Contagiousum.  X missed the 1^st term on her Kindergarten year.  The father will still refer to this insisting it was sexually transmitted and due to the mother’s life style.”

2. Ms M went on to record the father’s continuing concern about this matter.  Following inquiry it emerged (page 8) that the mother had taken X to a doctor for treatment but had failed to inform either Ms M or the father.  This was potentially problematic because it might be infectious.  Ms M noted that it was undesirable, as appeared to be the case, that X should be told not to reveal things to her father.

3. I note that the father discussed Court proceedings and related matters in the presence of the children (see, for example, page 14 of the report).

4. At page 16, in describing a visit on 13 March 2013, Ms M recorded:

   “Bath time.  Mr Kyte knelt down next to the bath tub and told the girls to make sure they had washed their ‘omitted’ and ‘omitted’.  In a matter of moments Mr Kyte had repeated this 6 times.  I told Mr Kyte I would think they were clean enough just from sitting in the bath.  Mr Kyte didn’t agree saying Ms Astin was always very particular about this not wanting the girls to get and [sic] infection. 

   I moved out of the bathroom for as [sic] moment and Mr Kyte once again asked the girls if they had washed her ‘omitted’.  I moved in the bathroom and he was trying to take the sponge off X.  X snatched the sponge back and said she would do it.  Mr Kyte said, “No let me do it.”  I shouted, “Mr Kyte stop!” and told X to pull out the plug; they had been in there long enough and were getting all wrinkly. 

   The girls wrapped their towels around themselves and came into the lounge to dry themselves and put on their pyjamas. 

   Mr Kyte sat on the couch in front of X.  X chatted to him nonstop and took her time drying herself.  I dried and dressed Y.  X was still standing in front of her father and chatting away.  Mr Kyte got up to go to the toilet and I hurried X along, and she was dressed before Mr Kyte came back.  At no time did he ask X to hurry and get dressed or move to help Y which is what he usually did.”

5. The report speaks for itself but taken overall it seems to me to show a warm relationship between the children and their father, but also certain lack of insight by him as to how to control difficulties of emotional upset on the girls’ part, particularly X.

6. At page 35 Ms M noted:

   “Mr Kyte can be quite excessive.  For example, if he decides to buy the girls a jewellery set each i.e tiara, necklace and earrings he will buy them 3 sets each.  When I point out the children appear very overwhelmed and ask why he does this, he said he felt sorry for them because they had been sick.”

7. She continued on the same page:

   “It does appear that Mr Kyte still competes with Ms Astin in being able to provide more for the children in material things, and will tell the children he buys them all these things as proof that he loves them. 

   It is very difficult to co-parent with such different standards and parenting styles between the parents. 

   I have repeatedly reminded Mr Kyte not to pay me in front of the children.  After 2 or 3 weeks of complying he will again pass the money to me in front of the children, or more than likely tell the girls to ‘give it to Ms M’.”

8. On page 36 Ms M said:

   “Overall Mr Kyte disciplines the children when necessary in an appropriate and caring manner.  He will always remind the girls to share, be kind to each other, etc.  He will often tell them they are sisters and will always have each other. 

   There have been occasions when Mr Kyte has appeared to lack insight to how the children may be feeling.  His behaviour can be very intense and he struggles to keep his emotions together and will then behave in-appropriately. 

   On one occasion Mr Kyte insisted the girls come out the front and try out the ‘billy cart’.  He was very insistent although the children were settled playing with other things.  Y protested when Mr Kyte placed her in the billy cart, obviously frightened.  Mr Kyte was still very insisted [sic]; he spoke very loudly and appeared very agitated.  Y sat down. 

   I told Mr Kyte to calm down, he was being very overpowering.  He told me angrily, “What do you want me to do, take them inside and just sit!”  I told him to stop exaggerating;  it was not just the billy cart or nothing.”

9. At page 37, in the final summary dated 18 June 2013, Ms M gave a further description of the bath time incident on 13 March 2013 as follows:

   “Mr Kyte knelt down next to the bath tub and told the girls to make sure they had washed their ‘(omitted)’ and ‘(omitted)’.  In a matter of moments Mr Kyte had repeated this 6 times. 

   I intervened and told Mr Kyte firmly I would think they were clean enough just from sitting in the bath.  Mr Kyte didn’t agree. He said Ms Astin was always very particular about this; not wanting the girls to get an infection.  I noticed he stopped asking.

   I stepped out of the bathroom purposely to see if Mr Kyte wold start up again about the children washing their ‘(omitted)’ and ‘(omitted)’. I was just outside the bathroom door.

   He did start this again and as I came back in the bathroom he was trying to take the sponge of [sic] X and suggesting he would wash it for X himself. X said firmly, “I’ll do it!” and snatched the sponge back. At the same time I called out “Mr Kyte, stop!”

   I told X to pull out the plug; they had been in there long enough and were getting all wrinkly. 

   The girls wrapped their towels around themselves and came into the lounge to dry themselves and put on their pyjamas. 

   Mr Kyte sat on the couch and X stood directly in front of him chatting nonstop and took her time drying herself.  I dried and dressed Y. 

   X was still standing in front of her father and chatting away.  At least 5 minutes had gone by. At no time did Mr Kyte ask X to hurry and get dressed, or move to help Y which is what he usually did.

   Mr Kyte got up to go to the toilet. As he stood up I noticed he was sexually aroused.

   I hurried X along, and she was dressed before Mr Kyte came back.

   I have not noticed any prior behaviour along these lines from Mr Kyte.

   The children had one more bath at his home after this and there was no similar talk or behaviour from Mr Kyte on this occasion. He dried and dresses [sic] Y as he had on previous occasions, and X dried and dressed herself.

   I have documented this incident exactly as it happened.

   I do not believe I am qualified to make any conclusion regarding Mr Kyte’s behaviour.”

The report of Dr K

1. Pursuant to orders made on 17 June 2013 Dr K interviewed the father on 25 July 2013 to provide a psycho-sexual assessment and report.  The report was annexed to the affidavit sworn by Dr K on 29 August 2013.  At page 12 of 27 Dr K reported under the heading “Presentation”:

   “2.    Mr Kyte presented distinctively.  He was anxious and over-inclusive.  I note that he came one day early for the evaluation, indicating that he had got the day wrong.  He presented with limited education but presented as functioning in the Average range of intellectual abilities.  He was very serious and worried.  He was unsophisticated.  He was also extremely intense and persistent.  He was verbose.  He had difficulty taking direction when very emotional and in discussing the issues in question, at various points he became upset and loud in a way that was somewhat inappropriate.  Additionally, he was tearful.  At these times he was unable to focus particularly.  At various points in the evaluation he required very clear direction.  There was significant avoidance of questions at times. 

   3.    Overall, Mr Kyte presented a picture which was polarised, presenting himself as positive and the mother in this matter as negative.  He presents as a person with unresolved personality difficulties.  I note additionally, at various points in the evaluation which occurred over a three hour period, he did not take in information.  In a sense he remains focused on his own point of view.  As such there is evidence of rigidity in his personality functioning.  He appeared particularly focused not only on the mother but on a supervisor of the children whom he believes has been unethical.  He presents a rather vindictive approach towards her.”

2. The report noted at page 13 the various courses that the father has undertaken arising from Family Court matters.

3. In dealing with the account made by Ms M about the father’s sexual arousal at bath time Dr K reported (at page 15 of 27):

   “The father’s account is that this is not true.  To explain the situation, he spoke of the mother’s extended family being promiscuous, one of the mother’s uncles being a bikie gang member and one being a convicted rapist.  As such he was drawing attention to the mother’s family.  He feels the supervisor is in collusion with the mother.  As such, he stated that “I’ll finish her career”, speaking about the supervisor, and reported that he has rung Slater & Gordon and wishes to take out a defamation suit.”

4. At page 15 of 27 under the heading “Mental Health Issues” Dr K recorded:

   “Mr Kyte’s history would suggest physical and sexual abuse in childhood, a history of alcohol abuse from ages 15 to 32 at least, personality issues with vulnerability towards anger and impulsivity, a past history of antisocial behaviours in relation to criminal offending.  He presents with unresolved personality issues concerning his family of origin.  Family Court issues have exacerbated stress and anxiety.  He presents with vulnerability towards manipulative and antisocial traits in his personality.”

1. At page 22 of 27 Dr K concluded:

   “With respect to the RSVP result there is no formal evidence of a sexual violence history.  Psychological adjustment is problematic in certain domains as is Section C, mental disorder in certain domains and social adjustment in certain domains.  Central, however, is the lack of a sexual violence history.  As such, there are personality and historical risk factors which put Mr Kyte at low-medium risk level.”

2. At page 25 of 27 Dr K continued:

   “29.  Mr Kyte is a man with personality problems.  I note he was previously evaluated by Dr T who has made similar comments to those present in this report.  He presents with some antisocial personality tendencies historically and a vulnerability towards impulsivity although he has made attempts to resolve the difficulties of his early life and has been engaged in some treatment to assist in this domain, although it is questionable the extent to which this has been helpful to him.  He has worked consistently over time. 

   30.  The central issues for Mr Kyte relate additionally to his tendency towards being manipulative towards others and acting in ways that disregard the needs/wishes of others.  The issue of the observation of the supervisor is difficult to determine.  If the allegations are correct, these in themselves do not lead to the conclusion that Mr Kyte represents a sex offender.  I do note, however, with concern, that there are reports of him not modifying his behaviour around asking the children to wash their genitals when this issue was dealt with directly by the supervisor. 

   31.  The sexual risk evaluation did not identify Mr Kyte with a recorded history of sexual offending, and as such, in itself the risk factors are not related to offending behaviour.  The primary risk factors identified are more personality based, which have already been discussed.  These personality indicators in themselves do not determine that Mr Kyte would go on to sexually offend and the fact that he has been sexually abused himself in childhood may protect him with respect to this factor as he has such a negative position in relation to this issue.

   32.  Nevertheless, there are some personality components that are problematic and contribute to the risk issues, particularly his tendency towards impulsivity and manipulation.  Mr Kyte is a man also with strengths and with apparently a very strong focus on his children and expressed love for them.  Additionally, he is in a relationship which appears settled, he is in sound employment and his life skills appear to be appropriate.  As such, it would appear that there are some strengths balancing out personality difficulties. 

   33.  Therefore, based on these factors, considering psychosexual risk alone, there should be no automatic prevention of Mr Kyte having time with his children unsupervised in time.  It may be determined by others whether or not there are other risk factors in terms of him having children in his care alone, and if that was the case, time in substantial attendance of another way may be appropriate.  Considering the combination of the risk ratings from the two measures and this evaluation, it is likely that initially time in-substantial-attendance of another protective and responsible adult would be the logical conclusion for Mr Kyte and his children on a short-term basis (6-8 months) and, assuming no difficulties, a move to unsupervised time.”

The report of Mr G

1. Mr G produced a family report, dated 19 September 2013.  It is a thorough and helpful one, but it must be noted that in the context of the materials already filed it takes the matter little further.  I note that Mr G interviewed Ms S, the father’s new partner.  I note further (paragraph 35, page 15) that both girls sought out Ms S’s company when they saw her.  Mr G recorded:

   “She gave the impression she was fond of them and that they too liked and got on with her.  She is very supportive of Mr Kyte and believed that it was important for the girls to spend more time with him.”

2. Perhaps not surprisingly Mr G left the resolution of the competing claims about the father’s violence and the concerning issue of the alleged sexual response to X reported by Ms M for the Court to determine.  I note that in paragraphs 47-49 Mr G said:

   “Should the court determine that the girls would be at risk without a supervisor present, then there seems little choice but for the present arrangement to remain unchanged, perhaps until they are old enough to engage in self-protective behaviours. 

   Should the court be satisfied that the level of risk Mr Kyte poses is minimal, then Dr K’s suggestion that there be a gradual move to an unsupervised regime needs to be considered. 

   It is for the above reasons that this counsellor finds it difficult to make an unequivocal recommendation as to the time Mr Kyte is to spend with the girls.”

3. At paragraph 51 Mr G summarised the Department of Human Services (“DHS”) file entry on 8 November 2011 as:

   “The Department will not intervene.  Based on information received, it appears that the father has a significant history of violence.  No actual violence has been reported to have been inflicted on the children but from the knowledge received, it is apparent that the father has poor impulse control and is unable to contain his anger.

   At the current time, the children are not at risk of harm from their father as their contact with him is currently being supervised.  The Department would have significant concerns for the children’s safety should their contact with the father become unsupervised.”

4. Mr G noted the assertion by the mother that the children, and particularly X, were starting to show resistance to spending time with the father at paragraph 56.  He noted that Mr Kyte alleges that the mother is at times seeking to disrupt his time with the children. 

5. At paragraph 59 Mr G reported:

   “Mr Kyte refuses to pay child support.  He believes that if he does so, such moneys will not be spent on the girls but on Ms Astin’s alleged marijuana addiction.”

6. While I should make it clear that I find Mr G’s report helpful and thorough and in my view his observations show commendable insight, it is not necessary to traverse them further because in the ultimate Mr G left the final decision to the Court based upon the findings of fact that the Court was to make about the matters in dispute. 

The report of Mr K

1. On 24 January 2014 Mr K swore an affidavit which annexed his report about the observations of the family during the time he had supervised the time between the father and the children. 

2. Once again, while this is a thorough and helpful report, it does not in the scheme of things take things much further.  I note that while Mr K’s reports were clearly evidencing a warm and loving relationship between the father and the girls, the concluding words of the report are:

   “However, at times the conversations or concept appeared to be beyond X’s level of understanding for her age and it was clear that she unintentionally got caught up with issues between her parents that she clearly did not understand.”

The second report of Mr K

1. On 9 September 2014 Mr K swore another affidavit and annexed a report bringing matters up to date.  Once again, it is a very helpful report but it is not necessary to traverse it in detail.  I note that at page 72 Mr K recorded the following about a visit on 27 August 2014:

   “X had saw party items around the house, shopping bags of chocolates and packets of lollies.  Mr Kyte and X then discussed the party items.  X informed Mr Kyte “we can’t come”, Mr Kyte replied “that’s okay, Mumma is doing it to be mean to me”.  X stated “that’s not true”.  Mr Kyte replied “There is nothing more important than your sister’s first birthday.”  X became defensive protecting her mother, stating “You don’t like Mumma” or words to that effect.  Mr Kyte replied, stating “why should I love Mumma when she is off with (omitted) all the time.  If you want to stick up for Mumma then tell me what is she doing, tell me what’s so important you can’t come to the birthday.”  The more X defended her mother the more Mr Kyte appeared to become upset, stating “that’s right, X.  Mumma is perfect”.” 

2. At page 74 Mr K continued (it was the same visit):

   “Ms S then asked X to decorate the pinata.  X was holding it and stated in a low, sad voice “I want to come to the party, I like parties.”  Ms S replied “You can’t, Mumma is your primary carer.”  Mr Kyte stated under his breath, “not for long”.  X looked up and stated with a raised voice “Why”.  Ms S replied in a low voice “Shut up, Mr Kyte”.” 

3. On a supervised visit on 7 September 2014 the following interchange was recorded at page 76:

   “X then asked Mr Kyte “Why do you say “mmm” every time we talk about Mumma’s family… it’s like you don’t like them.”  Mr Kyte replied, “no, but I don’t like how they say bad things about Dadda and it’s not true.”  Mr Kyte proceeded to state, “he is the best Dadda, better than Mumma because he has jumping castles, pony rides and fairies at your birthdays”.  Then Mr Kyte asked “does Mumma have this at your birthday – no, that’s why I’m the best Dadda.”  Mr Kyte then stated, “he is a ten out of ten for being her Dad and Mumma is a seven out of ten”.  X responded by saying “he is a seven out of ten and Mumma is a ten out of ten.  Mr Kyte stated in a surprised voice “I’m less than mumma??” 

   Mr Kyte also stated that, “it’s okay, Mumma loves Mr R or a boyfriend after Mr R or the next one… Ms S and me aren’t boyfriend and girlfriend, Ms S and I are engaged, Ms S is my fiancée.”  Ms S appeared surprised, as her facial expression changed and she smiled. 

   Mr Kyte then went on to explain to X that she will come to stay at his house every weekend.  X stated “every weekend” and repeated this again, and then said “when will I see Mumma?”  Mr Kyte replied “your with Mumma all week.”  X stated “I don’t see her all the time because I’m at school”.” 

4. In the summary on the final page, page 79 of the report, Mr K noted that the father appeared capable of providing for the children’s basic needs and that the interactions between the children and the father were spontaneous and warm.  The report continued, however:

   “However, on a number of occasions the visits would be soured as Mr Kyte would not refrain from denigrating the mother or asking X questions about her mother’s partner.  At times Mr Kyte appeared to show no insight or understanding into how this would impact on X or why X would appear to be defending or protecting her mother to him, causing Mr Kyte to become more upset.  Mr Kyte would then continue to explain concepts, ie, court proceedings beyond X’s chronological age. 

   It appears Mr Kyte may benefit from additional parenting skills and for both parties to use the communication book as intended, focusing on X and Y’s needs.”

5. The only other matter I will refer to at this stage, before dealing with the evidence given in Court, arises before the Further Updated Outline of Case of the Independent Children’s Lawyer, filed 12 September 2014.  I note that at page 3 the Outline states relevantly:

   “Given that the Family Report in this matter was prepared some time ago, the Independent Children’s Lawyer deemed it prudent to personally attend upon the children and did so on 9 September 2014.  Both children expressed a view that they both did not wish to spend time with their father.  The reasons given for this were varied and somewhat vague.  The reasons included allegations of the Father bullying the girls, the Father frightening them with taking his teeth out, the Father lying to them about their mother, and the Father trying to keep the girls separated from each other.  The views of the children will, of course, need to be considered in light of their respective ages and in light of the previous family reports and the recent observation commentary of the supervisor, Mr K.” 

The evidence given at Court – the Father

1. What follows in respect of all the evidence given from the Court is, of course, taken from my notes and does not purport to be anything remotely in the nature of a transcript.  It records those aspects of the evidence that seemed to me to be of particular significance.

2. The father commenced by outlining the orders he sought (this was something later clarified by a document filed by leave on 16 September 2014).  He said he had done everything the Court had asked him to do.  He said he would prove that the four witnesses he was going to cross-examine had changed their story, with affidavits contradicting each other.  He said that Mr G and Dr K would testify in his favour, and that he sticks to the truth and that he was a great dad.

3. Once sworn, the father confirmed his affidavits as true as correct.  He confirmed that he had done courses, including one for anger management.  He said he was undergoing trauma therapy now.  He stated that he had hostility when he started, and anger, but he had come a long way.  He puts the children first.  He said that the other parties wanted him to have no contact with the children at all and that this showed their hate for him.  He said he sees the children for three hours supervised per week and if the worst comes to the worst, that is what he would want.  He said the main witnesses for the respondent were the mother and his own mother, all of whom grew up without fathers.  He said that they did not feel that fathers were needed, but children need both parents.  He said his partner and he were together.  He confirmed that trauma counselling was taking place fortnightly.  His partner has nine siblings and her father is a pastor in (country omitted).

The Father under cross-examination by Counsel for the Mother

1. Cross-examination for the mother commenced with questions about DHS involvement with his child with his partner, Ms S.  The father replied words to the effect, “She is not what we’re here to talk about.  Her case is closed”. 

2. It was put to him that the DHS had been involved with his partner, Ms S, and he replied that he did not believe this was relevant, although he had already stated that he was aware of his obligation to make relevant disclosures.  He said that, “As far as I know, you’re getting DHS material”. 

3. I interpolate and say that the father’s answers at this stage of the cross-examination were both combative and evasive.

4. The father went on to say that the case is closed.  DHS wanted an alcohol report because he was drinking alcohol when his new child B was in hospital (I note that B’s name is spelt in various ways in the materials but this is what the father wrote in the communication book on 31 August 2013).  He was stressed.  DHS came and saw him drinking and he did what DHS wanted.  He said he had completed 18 weeks of 20 of his anger management course and had also undertaken a Men’s Behaviour Change program.  He said he had done an assessment as to his alcohol use at the request of the DHS and the counsellor in that process referred him to trauma counselling.  He said he still talks to Ms H in DHS, (omitted), and confirmed that he had been to the Children’s Court as a result of DHS involvement.  He said DHS went to Court when B was born.

5. He said he started drinking after B was born in (omitted) 2013.  He was drinking a couple of beers at the maximum.  He drank spirits occasionally.  He did, however, confirm that when upset he would drink half a bottle a night, normally on Wednesday night.  He denied drinking every night and said he drank two to three nights a week, being beer, or maybe once a week, spirits.  The father’s answers in this regard were exceedingly unconvincing and I think that he is drinking far more than he was prepared to admit.

6. The father confirmed that DHS had been concerned about his anger issues but were not concerned about risk of sexually inappropriate behaviour.  He said that if the worst comes to the worst, the children should be in foster care, which was better than the psychological trauma they would undergo with their mother.  He said he had received numerous death threats from the mother’s family over the last month and had given details to the police officer, whose name he provided.  He said that the mother’s family are a family of criminals.  He said that 90 per cent of his criminal past was family related.  He said he was talking about his mother who should be in a cell.

7. Once again, I would interpolate and say that the father was physically seething with anger when giving this aspect of his evidence.

8. When cross-examined about the report of Ms M, and in particular, the bath incident, he said he always told the children to “Make sure you wash your (omitted)”.  He had never washed them himself.  He said that Ms M was there and the report was only made two months later.  He said there was an obligation to report matters such as this to the police.

9. It was put to him that X has been naked for some time while talking to him and he said he did not believe this.  He said he had not failed to dress the children and the assertion to the contrary was absolutely false.  He said the assertion that he was staring at X naked was absolutely false and that he was not sexually aroused and did not have an erect penis as Ms M had said.

10. When it was put to him that he was asserting that Ms M had been blackmailed by the mother, he replied that she was either blackmailed or threatened.  He said that Ms M was lying under that pressure. 

11. When he was taxed with the DHS report from 2011, opposing unsupervised time, he said he was not aware of the report and that it was not relevant to the current situation.  He said he had not addressed anger issues at that stage. 

12. The father was cross-examined in some detail about his tardy and/or non-completion of Court ordered courses.  He said he had done a parenting after separation course and another parenting separation course and then a Men’s Behavioural Change course this year.  He also said he had done another course two years ago with Relationships Australia in (omitted).  He said he had undertaken four sessions with a drug and alcohol counsellor from CatholicCare until funding ran out in 2013.  He said this constituted partial compliance with Court orders.  He then said that the new report says he needs trauma counselling and was now undergoing this.

13. I note that the father had not complied with an order made in May 2012 to undertake such counselling until recently.

14. The father was cross-examined about Ms M ceasing to continue as a supervisor.  It was put to the father that this was because of his bullying.  He said this was absolutely incorrect.  He said he had not sent threatening emails to Ms M.  Material was always sent to the mother’s? solicitor.  He said that none of his emails were threatening and that he had copied Ms M into them.  When it was put to him that despite his criticisms of the mother’s promiscuity, he himself had had four children with three different women, he conceded that this was the case.  He said he was the better parent.  “For this reason alone, I have learnt.”  He said words to the effect, “I’m not perfect.  These days I’m pretty close to it”.

15. The father confirmed that he has nothing to do with his child Z.  Z’s mother is happily married and he only found out about Z’s existence when she was four years old.  The only time he had been to Court was about her passport, because he was scared that the child was going to (country omitted).  He said there was no family violence to Z’s mother.

16. When cross-examined about Intervention Orders, he said that he could not recall who obtained them, but that there had been a couple.

17. He was cross-examined about a yet earlier marriage to Ms L, and said this lasted only 30 days.

18. He said that the anger management course was beneficial and finished in July 2014. 

19. The father was cross-examined about a telephone call he had made the previous week to the school principal of X.  He said he did this on the speaker phone.  X had been poked once in the bottom and kicked twice in the “(omitted)” by three different boys at school.  He blamed the mother for this ongoing bullying and said that the mother does nothing about it.  He was not aware that the mother had contacted the school welfare officer.  He accused the mother of not using the communication book.  He said he was distraught while he was on the phone to the school principal, but that the next day the principal sorted it out.  He confirmed he had said to the principal that the mother’s family was broken and that most are criminals.  He said that after the Court case is over he will provide the school principal with copies of the final orders.  He repeated that the mother’s family are drug addicts and gangsters who will not abide Court orders.

1. Once again, I interpolate and say that the father was obviously furious when he was on the telephone to the principal and that his answers about much of the issues to do with the school struck me as being self-serving and non-responsive.

2. He told the principal that the mother’s family are bikies and told the school principal about the mother’s drug use.  He said that the mother’s family is linked with the (omitted).

3. In the communication book the father confirmed that he had written, inter alia, that Uncle Mr G, Uncle Mr P and Uncle Mr T “went through you”.  He made the same disclosures, as I understood it, to the school principal.  These were, of course (at least as I understand it), the mother’s stepfather and two uncles respectively. 

4. Under cross-examination the father confirmed that he was of the view that they had all had sex with the mother and said he was trying to educate her.

5. The father said he did not hate his mother.  He had done so previously, but after his anger management course he would say he was disappointed.  He confirmed he had said things about the mother.  He had called her a whore many times.  He called the mother a whore and said she had prostituted herself for drugs.  He accused the mother of having sex with Mr M during the currency of his own relationship.  He said that she kept seeing Mr M at her mother’s house and said this was a platonic relationship. 

6. Throughout this passage of his evidence, once again, the father was clearly furious. 

7. He confirmed, however, that the mother did catch him in bed with another woman called (omitted).

8. He said he pitied the maternal grandmother because Mr M “went through her too”.  He said he would not now continue to call her a whore and said that he can only recommend that she seeks counselling.

9. He said the children were doing okay in their education, but were not doing well psychologically.

10. The father confirmed that B had been undertaking supervised visits with him this year.  Time had been ordered to be supervised for a period of two months in around January 2014 at the DHS office.  The mother was not present on these occasions.  This progressed to unsupervised visits for three to four months because of concerns about violence in relation to Ms S.  He said Ms S was now cohabiting with him and had been for about a month.  The Children’s Court made a supervision order in favour of Ms S.  He did not tell Mr K about supervision, but told Ms H of DHS everything.  He said he tried to respond to the issues about X.  He questioned her about school photographs and told her “the Court says that the mother should give me school photographs”.  He said, and in this regard I found his evidence believable, that “the mother involves X with Court matters” (although clearly the father does extensively as well).

11. The father was further cross-examined about bruises he had received and a smashed wall in his house.  The father’s answers were, to my way of thinking, believable.

12. The father confirmed that X is very conscious that he asks questions and she defends her mother to him.  He complained that the mother treats X like a 16 year old, as her own mother had treated her.  He said “this is history repeating itself”.

13. The father was cross-examined about his income and finances and his answers, in my view, were evasive.  He said that child support would never happen.  He said he had done his tax returns and makes less than $5,000 a year.  He said he operates under a trust and obtained a refund last year.  He said the trust is a family trust.

14. The father confirmed that he told the children, “I’m ten out of ten and she is seven out of ten”.  When cross-examined about his remarks to Dr T, he confirmed that at that time he had seen women in two groups, either bad like his mother or saints like his grandmother.  He denied that the paternal grandmother, the maternal grandmother and the mother were scared of him, although he confirmed that his own mother has an indefinite Intervention Order against him.  The father was cross-examined about the maternal grandmother, whom he accused of promiscuity and accordingly, did not wish to have time with the children.  He said he had reported her to the (country omitted) Embassy and also to DHS and the school principal.

15. When cross-examined about X’s warts, the father confirmed that he thought that the mother allows men to have oral sex with the children. He confirmed that there is a current Intervention Order against him in favour of the mother and the children.  He confirmed he had told the children that “any man who forces you to kiss them, spit in their face”.  He went on to say that the mother’s new partner, Mr R, is an uneducated (country omitted) (occupation omitted) and that the people around the mother are also uneducated.

The Father under cross-examination by the Independent Children’s Lawyer

1. The father was taxed with his failure to tell the Independent Children’s Lawyer about B.  He admitted he had not done so.  B was born on (omitted) 2013.  On 9 January 2014, the Children’s Court made a supervision order.

2. It was put to the father that the DHS concerns were family violence, the father’s criminal history and alcohol, and he agreed.  He had sent a message to Ms S’s brother and the mother and Ms S went to the police.  The police came at 1:00am and he was drunk.  Ms S told the DHS he was drinking.  The police called him in but he did not go.  A supervision order was made for nine months but the time was not supervised after two months.

3. The father has confirmed he undertook 18 sessions of the Men’s Behaviour course this year but did not tell the Independent Children’s Lawyer about it.  He first mentioned Men’s Behaviour in 2011 and an order was made in May 2012.  He was on the waiting list for over a year.

4. The father confirmed that he took to drinking last year after the new child was born.

5. When it was put to him that he was obsessed by sexual abuse, he said this was absolutely false.  He said he would go overseas when he was in a relationship with the mother and became stressed.  He got cheap flights but it was not true that these were sex trips overseas.  He denied domestic violence against the mother and said he was never charged.  He denied kicking her when she was pregnant with X and had not otherwise assaulted her.  He said, however, he had had 15 Intervention Orders.

6. He said he had told DHS everything that his own mother had subjected him to, including having sex in front of him.  He was having ongoing trauma therapy.  He said, “I’ve still got demons inside me.”  He said he had started trauma therapy after the Men’s Behavioural Change group, starting on 7 August 2014 on a fortnightly basis.  This was with Relationships Australia in (omitted).  He confirmed he had not told the Independent Children’s Lawyer about this until last week.

7. When he was cross-examined about the matters recorded by Mr K, including his continual denigration of the mother in front of the children, the father’s answers were evasive.  He said there are still problems with the mother. He said he asked the children about the mother’s partner.  He said he understood he should not talk about Court proceedings and said he tried to cut X off.

8. When taxed with what he had told Dr T and Dr K in 2013 and being intense and rigid and focused on his own views, the father replied that this was last year.  He wanted to get back at the mother.  He had changed since the birth of his child.  He said that the Court was worried about Ms S.  Ms S told them about the drink and got upset.  He said there were fights over the birth certificate.  He said he now handles stress better and was not seeking overnight time now.

9. The father confirmed that there was no possibility whatever of agreement with the mother.  He confirmed he had put in a communication book his observations about sexual abuse.

10. When cross-examined about the warts on X’s face, he said he thought she had had sex and that the mother let this happen.  He said, “All these people around her are not good people.”  He said he wanted Mr K present for changeover to cover him.  He conceded he had a bad criminal history and had three periods in jail between the ages of 17 to 21.

11. He confirmed that in May 2012, he had been ordered to undertake drug and alcohol tests and started with Mr W but stopped when he started doing his courses.  He had not told the Independent Children’s Lawyer.

12. He said Ms S had moved back in with him in the last four weeks.  There were some ongoing issues about B but these were not a problem.  He said he was scared the children would have to grow up too quickly and blamed the mother for this.  He said that he spoiled the children but less so now that he has them more.  He said he is already getting X to study in his three hours’ time with her.

13. The father confirmed that, following the cessation of this cross-examination, there was nothing he wished to clarify.

The evidence of the mother

1. The mother confirmed her affidavits as true and correct with one alteration.  She confirmed that, contrary to her earlier assertion that her family was free of criminal records, one of her brothers does have a criminal history.  She confirmed that she deliberately omitted this information because she was fearful of the way the father would use it.

2. When questioned about the recent bullying of X at school, the mother confirmed that X had made the complaints of being poked in the buttocks and kicked in the genital area.  She confirmed that she would speak with Ms T.  She confirmed she would speak to Ms T or the school principal and that she had also spoken to Ms I, the classroom teacher.  They have spoken to X and told her to report bullying.  She said she had not spoken to the principal about bullying.

3. She confirmed that she had not told Mr K about this bullying at 4.30 pm on the day when they were transferred to the father.  Mr K later told her that the father had contacted the school.

4. The mother went and saw the school principal the next day and the school principal told her about the father’s call the night before.  He had alleged that X had been sexually assaulted and confirmed that the father talked about the mother and her family and associated alleged violence and drugs.

5. The mother confirmed that she had not been aware of DHS involvement with B until today and was concerned about this.

6. When questioned about overseas travel, the mother confirmed that the children do not have current passports.  They are Australian citizens.  The mother was born in (country omitted) and, in the future, would like to visit (country omitted) and (country omitted), where she has one uncle and some cousins.  Her immediate family are all here and she has one aunt in (country omitted).  She says the father will never agree about passports so that he can control her and that he still continues to control her.

7. The mother said she was fearful of unsupervised time.  She said that the father would always endeavour to hurt her through the children and would stop at nothing.

8. I would interpolate and say that, while the mother clearly believes that this is so, I do not accept that that is the father’s motivation.  His motivation, quite clearly, is the genuine love he has for his children.

9. The mother said there was no possibility of good communication with the father and her.

The mother under cross-examination by the father

1. Cross-examination commenced with a question about the huge criminal record of the mother’s brother Mr D.  The mother conceded that she had not put this in her first affidavit because she was fearful of how it might be used.  She said she had told the truth in her second affidavit and was not a liar.  She had made a wrong decision.  She said Mr D was involved in drugs but she was not aware that he had committed armed robbery.

2. The mother denied that her Uncle Mr P had been denied entry to the (country omitted) as an undesirable.  She said her Uncle Mr T had no criminal convictions and not assaulted anybody as far as she was aware.  She said she was not aware of Uncle Mr T’s occupation and had not had contact with him for 12 months.  She understood him to be involved with (omitted).  She said she did not know if he was president of the (omitted) .  The mother denied that Uncle Mr T had ever threatened the father about X.

3. The mother confirmed that she has warm relationships with her family and said the first she knew about Uncle Mr T and the (omitted) was on the news.

4. The mother repeated her assertions that the father stalks her and said he was obsessed with her.  She confirmed, however, that he had not been charged with assault or stalking and, indeed, faced no criminal charges at all in relation to her.  She confirmed that she did not like the father and was scared of him and that she lived with her paternal and maternal grandmothers.

5. When questioned about the paternal grandmother, the mother said she did not believe the paternal grandmother permitted the father to be abused.  She was not aware that the man who had abused the father had been convicted.  She said that she believed the relationship between the father and his mother was volatile and said that he became abusive and wanted to control her but she resisted.

6. The mother was questioned about the father of the paternal grandmother and said that he was sick from the war and committed suicide.

7. The mother confirmed that her own mother grew up with her father.  The mother said she was not an alcoholic and did not leave her mother at an early age.

8. When it was put to her that there was a pattern of absent fathers in her family, she said there was no such pattern.

9. She further confirmed that a DNA test on X took place because the father had swabbed X without her knowledge.

10. The father put it, perhaps rather bizarrely in the circumstances, that if passports were to issue, she could go to (country omitted).  The mother confirmed she had no intention to live overseas and that her family live here.  She has no family land in (country omitted) and is not resident in (country omitted).  The maternal grandmother is not a (country omitted) citizen and does not have a (country omitted) passport.

11. The father cross-examined about the incident of recent bullying of X at school.  The mother said this was inappropriate conduct but no sexual misconduct took place.  She is now just putting the matter aside.  She stated it was the father who stated that X was touched in her private area.

12. I should interpolate again and say that the father became extremely agitated during this section of the evidence and was shouting at the mother when he was putting questions about the possibility of sexual assault of X at school.

13. The mother was cross-examined about the provision of school photos to the father.  Her answers, in my view, were believable.  Her answer, however, as to how many days X had recently missed school were, in my view, evasive.

14. It should be noted that the father’s manner when cross-examining the mother was aggressive and overbearing.

15. When questioned as to whether the children loved the father, the mother was extremely hesitant to answer.  In the end, she said that she thought the children have a kind of love for him.  She said, under the circumstances the father had created, it was better they not see him.  She said X has said that she does not want to see the father, but did not think that X says what she wants to hear. 

16. The mother denied discussing her solicitor with X and said that the father discussed his lawyers and solicitors with her.  She said she told Mr K this was inappropriate.

17. The mother said that if no time was ordered for the father, this was appropriate for their safety.  She said she believed the father manipulates the children and tries to turn them against her.  She sees that the children will grow up and blame the mother for things that the father has been responsible for.  She said, “You will do whatever it takes to get the children from me.”

18. She said had taken the children recently to the Independent Children’s Lawyer but had not coached them.  The children told Ms Z (the Independent Children’s Lawyer) that they did not want to see the father anymore.  She said she only goes on what the children say to her.

19. The mother confirmed that she had taken X to Queensland but said she had not told her to keep it secret.  She said she took X to Brisbane because her brother had broken his neck.  X missed one day off school and it was necessary to take her, because to leave both children with the paternal grandmother would be too much.  When questioned why Ms M had not reported the alleged erection incident for two months, the mother said she was in a state of shock when she learnt about it.  She could not remember the date.  It took her more than 24 hours to take it in.  She said she had not discussed it with Ms M but had reported the matter to the DHS.  She denied “cooking anything up” with Ms M.

20. The mother confirmed that there are four bedrooms in the house where she lives.  She sleeps in one.  The children share another room.  She said the assertion in her first affidavit to the effect that the children have separate rooms was a typographical error.

The mother under cross-examination by the Independent Children’s Lawyer

1. The mother confirmed that her relations with the father had deteriorated recently.  X was telling her what was happening in visits and the questions and bullying, as the mother put it, that were put to her by the father.  She said the father is more affectionate to Y.  The father questions X about her and her family.  X is now more aware of things.  She said she was not critical of the father to X, but things had got worse in the last four to five months.  X says she does not want to go to see her father and cries and sobs when she says this.

2. She said that Y is becoming more aware of what happens as well and what is going on at visits.  She says that she asked Y also what happens on visits.  She said that the harm the children would undergo if they are with their father is the continual denigration by the father of the mother and her family.  She said the father hates her and her family and X is defensive of her.  X has tantrums around attending visits to her father, but is otherwise generally well behaved.  Exhibit A1 is X’s school reports which appear to be satisfactory.

3. She says the father has no boundaries and manipulate the situation to blame her and hate her.  She says the father wants to turn the children against her. 

4. She said the father has not genuinely changed.  The father asserts that the mother has prostituted herself for drugs, had sex with her father and uncles.  This was all absolute rubbish.  She said that the father is manipulative, that he knows that she is a good mother.  She said the father is an opportunist who will manipulate whether he is supervised or not.

5. The mother accused the father of acting out being affectionate to the children in front of the supervisor, but that he would harm the children sexually if time was unsupervised.  She said he was a sexual predator.

6. The mother said that the father had affairs with other women on the internet during the relationship with her, and that on one occasion she had received a phone call from a (country omitted) woman who claimed to have had an affair with the father.  She said that on another occasion the father had an affair with a woman at a petrol station.  She said he has no boundaries and will transfer this to the children.  She did not agree that the father is devoted to the children.

7. The mother says she has no sort of relationship with Ms M and had not discussed Ms M’s allegation with her.

8. The mother said that she does not feel safe at changeover and that the Intervention    Order expires next year in August.  She said the father has breached the current Intervention Order and has stalked her at her new address.  Tellingly, however, she said that this occurred when the father came and dropped off documents about the hearing.

9. She confirmed that the father has never been charged with breach of the Intervention Order, although she has reported all incidents to the authorities.  She said there were loopholes in the Intervention Order.

1. Mr K confirmed that at times during the whole of the visits X would challenge the father.  He denied that X had become more challenging in recent months.  He recalled the father saying if someone tried to kiss them they could spit in their face.  It was not clear what sort of a kiss the father was referring to.

Under cross-examination by the Father

1. Little of moment emerged from the questions the father put to the supervisor.  I note, however, that most of the time the children run towards the father’s house and appear to be happy to see him.  Mr K said he would have to seek advice if final orders were made about supervision in the form the father indicated he was seeking.

Findings about the credits of the witnesses

1. The lengthy extracts I have set out from the materials and the oral evidence give, I hope, a good flavour of what is before the Court.  I have already indicated a number of difficulties with the father’s evidence.  He was throughout substantial proportions of his time either in the witness box or when putting questions clearly extremely angry.  He was loud and overbearing.  One can only surmise, if the anger management course has been as successful as he says and his Men’s Behavioural Change group program also, what he must have been like before he undertook it.  A number of his answers were self‑serving, nonresponsive or unbelievable.  He was evasive about his income and finances. 

2. The mother’s evidence was generally given in a more composed manner and was in the main more believable than that of the father.  However I note that on any view of the matter she consciously perjured herself in her earlier endeavours to conceal the criminal activities of her brother.  Further, given that she and her own mother described the family as a close one, I find her alleged ignorance of her uncle’s criminal activities unpersuasive. 

3. Likewise, although she sought to downplay it, her dislike and fear  of the father was clear and it is plain that because she thinks that he is, so to speak, still likely to control and humiliate her, she does not wish the children to be a means to enable him to do this. 

4. As earlier indicated, the maternal grandmother, Ms A, was a very good witness whose demeanour was composed and thoughtful. 

5. The paternal grandmother, Ms B, was so emotionally distraught in the witness box that it is difficult to make much of her evidence.

6. All of the professional witnesses called were excellent.  I note that there was no application to cross‑examine either Dr T or Dr K.  I further note that the evidence given by Ms M, who was vividly fearful of the father, and that of Mr K was not effectively challenged in my view in cross‑examination. 

7. Ms H was a professional officer giving evidence within her area of expertise and was clearly not the subject of effective challenge.  The same goes for Mr G. 

Findings about the facts 

1. The father was the subject of a very difficult childhood.  The paternal grandmother was a clearly emotionally labile witness, and it was difficult to make much of the interchange between her and the father when he was cross‑examining her as both were so emotionally engaged.

2. I fully accept that the father was sexually abused as a child.  He deserves of course the greatest sympathy for such a terrible misfortune. 

3. Most unfortunately, although it is not a matter properly for criticism, the father did not get help about this sexual abuse.  Rather his life spun out of control and he committed a number of violent offences against the paternal grandmother and was incarcerated on three occasions.  The father’s antisocial behaviour clearly continued at least until he was 30. 

4. That father has a tendency to airbrush things out of his life.  He has on occasions given versions of the events which have omitted reference to his first marriage, even if it was a very short one. 

5. The mother comes from a closely knit family of what would appear to be predominantly (country omitted) origin (I appreciate she is half (country omitted) but her stepfather was (country omitted) and acted as a father figure in her life).

6. The mother was in a lengthy relationship with Mr M and it seems that she maintained a friendship with him even after it was over. 

7. During the time the father was with the mother the relationship was clearly tempestuous.  I accept the mother’s evidence that she refused to move in with the father because of concerns about the volatility of his personality.  I have no doubt whatever that he kicked the mother as he himself conceded this and he would have been violent within the extended meaning of family violence in the Family Law Act 1975 (“the Act”) throughout the relationship.  I have seen the father in Court over a number of days and have formed the clear view that he is a man of little self control, furious temper and overbearing nature.  All of his behaviour in Court was consistent with the allegations made against him in the mother’s affidavit material and consistent with those aspects of the professional reports that touch upon it. 

8. I accept that the father is morbidly jealous of the mother.  Some of his assertions border on the fantastic.  Nonetheless, I accept that the mother has been less than truthful about the criminal activities of her various relatives. 

9. While that is one aspect of the father’s criticisms that I am prepared to accept, I totally reject the assertion, outrageous as it is, that the mother has had sexual relations with her father and her uncles.  I totally reject the assertion that the maternal grandmother has had sex with Mr M.  I furthermore totally reject, as I note did Mr G, the ridiculous and offensive assertion that the mother permits and/or encourages both these two young girls to have oral sex with other parties, including by inference the mother’s new partner Mr R.  The warts upon X’s face and genitals come from a common condition for which treatment is available.

10. The father’s constant belittling of the mother and in the most extreme and outrageous terms is deeply concerning. 

11. I have no doubt that the children love their father and no doubt whatever that he adores them.  Contrary to his endeavours to play the matter down, however, the father continue to have difficulties with alcohol, a matter to which I shall return when I deal with the issues surrounding Ms S and B. 

12. I do not accept that the father has gained insight from the Men’s Behaviour Change Program he has undertaken.  The way he sought to portray it is that the father is now a changed man who reacts to his own mother’s behaviour with disappointment and not anger.  That assertion runs wholly contrary to his behaviour in Court.  It is immediately apparent that he is vengeful and discriminatory to both his own mother and the mother of his two children.

13. I reject the outlandish assertion that Ms M was in some way either intimidated, blackmailed by or in collusion with the mother.  Ms M was an excellent witness, who, as I have said, stood up very well to the bullying cross-examination of the father and did not retract her assertions about the X bath time incident.

14. A finding that the father was sexually aroused by the sight of his naked daughter is a significant matter. It is the sort of matter to which s.140 of the Evidence Act 1995 (“the Evidence Act”) applies. Very regrettably, and notwithstanding the anguish it will undoubtedly provoke in the father, I am constrained to accept Ms M’s evidence. She gave the evidence with evident embarrassment and it is unthinkable that she would have maliciously invented it. If the father had sought to explain this in some other way in denial, it might have been possible to accept some other explanation- however unusual. It is conceivable that in some fashion, the father was distracted and thinking some other erotic thought. But that was not his position. He simply denied the matter outright. I have no doubt that he had an erection when he was looking at his daughter. I accept Ms M’s evidence that his practice was normally to have the children get dressed more quickly. It is most unfortunate and regrettable to have to make this finding, but the father on that occasion, at least, became sexually aroused by the sight of his naked daughter.

15. It is clear from the DHS materials that the father abused Ms S when she went into labour.  He accused her of eating a pizza and thus causing the early delivery.  He refused to call an ambulance and she had to take a taxi to hospital.  The Department became involved and a Protection Order was ultimately made.  The father himself concedes that he was drunk when the police came to see him. 

16. The father did not tell Independent Children’s Lawyer or Mr K about any of this.  This breach, which I find was witting, is extremely serious.

17. For the father to assert as he did in his evidence that this was irrelevant, shows either a staggering lack of insight or a wilful endeavour to suppress the information.  It scarcely matters which of these constructions of the events is correct.  They would, in a sense, be almost equally alarming.  For what it is worth, the father is a man who knows about Court proceedings.  Regrettably, these proceedings have been underway since 2011 and unfortunately, he has plenty of past experience with the Courts, albeit most of it now relatively historical. 

18. I have self-evidently not dealt with every matter raised by the parties, but I would hope that these findings provide a sensible springboard with which to analyse the competing proposals of the parties. 

Submissions of the Independent Children’s Lawyer

1. Counsel referred to the further amended outline filed with the Court.  That had suggested that if the father did not pose a significant risk to the children, there should be two hours supervised until January 2015, increasing to four hours thereafter, together with time on special days. 

2. If the father was deemed to be a significant risk, there should be two hours per month on a supervised basis.

3. The Independent Children’s Lawyer noted that there was no certainty as to exactly what the father had done by way of courses designed to assist him. 

4. Counsel put it that the Independent Children’s Lawyer’s view had firmed up.  A further set of proposed orders was filed by leave on 17 September 2014.  These submissions propose sole parental responsibility to the mother.  It was noted that the parties were completely unable to communicate.  There were reasonable grounds to believe the father had engaged in family violence towards the mother and the submissions noted the continuous denigration of the mother by the father.

5. The submissions note most particularly as a matter of concern the failure of the father to reveal until the first day of trial that B had been the subject of DHS protection intervention.  In these circumstances, and noting the various difficulties the father still has, the Independent Children’s Lawyer has submitted that there should be supervised time for four visits a year at a contact centre or with a private supervisor at the father’s expense, spread out throughout the year, with one at Easter time, one in the middle of June, one at Father’s Day and one at Christmas.  Reference was made Summerby & Cadogen [2010] FMCAfam 109 at page 72 in this regard.

6. Counsel observed that despite undergoing his 18‑week course it was difficult to see genuine change in the father.  It was submitted the father needs more intensive counselling and noted that his own mother gave evidence against him.  Mr G had also said more intensive treatment was necessary.  No report or evidence had been received from Ms D, but there appeared to be only very few attendances with her.  This was not enough to say that the father’s longstanding issues had been substantially addressed to produce change.

7. The Independent Children’s Lawyer submitted that in addition to the four visits per year, the Court should make passport orders, remove the names of the children from the Airport Watch List, and discharge the appointment of the Independent Children’s Lawyer.  It was submitted that equal shared parental responsibility simply would not work, for the reasons set out in the written submissions.

Submissions by Counsel for the Mother

1. Counsel confirmed that the mother’s position had changed.  At the start of the proceeding she had adopted the position that the father should have no contact with the children, but now mirrored the position of the Independent Children’s Lawyer.  She submitted there should be no more than two hours four times per year at a contact centre.  It was submitted that the father would not abide by Court orders.  Counsel pointed to the relentless denigration of the mother by the father and the difficulties of coping with his behaviour experienced by Ms M and to a lesser extent Mr K.

2. The mother did seek passport orders and undertook to notify 20 days in advance the dates of travel and dates of departure.  The mother wants sole parental responsibility and does not want to have to inform the father about decisions.  It was submitted that the presumption as to equal shared parental responsibility was rebutted by family violence or alternatively was not in the children’s best interests.  It was submitted that any communication between the mother and father exposes the children to emotional harm.

3. It was noted that Dr T’s report about the mother noted her depressed and anxious mood and features of traumatisation and that the mother continues in one‑on‑one counselling. 

4. It was noted that the father had suggested in the communication book that the mother had sex with her own father and two uncles.  It was submitted that any woman would find it difficult to cope with these assertions.  This was especially so since the father infers that the mother will let this happen to the children.  He is convinced she will allow the children to be sexually abused.  In one application the father had even sought that the girls be medically examined to make sure they were not abused.

5. Counsel conceded that the impact of not seeing the father would confuse the children.  Nonetheless the mother wants the children and herself to be safe and wants to parent them appropriately. 

Submissions of the Father

1. The father said this has been a long and overwhelming case and he sought the orders he had prepared and filed on 16 September 2014.  He said he had proved that the respondent would lie to the Court.  She lied about her brother and his crimes.  She also lied about sleeping arrangements for the children.  The mother had said she had no contact with Ms M, but Ms M said there was.  The mother says she is from a tight‑knit family and would therefore know about her uncle’s criminal activity.

2. So far as the incident with the DHS is concerned he had brought all matters to their attention.  He conceded that he had told the DHS office to “get stuffed”.  He said that he had been to DHS (omitted) and complained about the officer. 

3. He said that DHS were now closing the case and Ms H got great support from him.  He said Ms H was in contact with Ms D from Relationships Australia in (omitted).

4. So far as the maternal grandmother was concerned there were two important questions.  First, she said that the girls need to see their dad.  Second, she said there was no current Intervention Order, because there had been no contact from him.

5. So far as his own mother was concerned he said “What can I say”.  There has been no contact for four years and no breach of the Intervention Order for over 10 years.  He said all the affidavits were based on circumstantial evidence.

6. The father said he agreed with both the reports of Dr T and Dr K.  He noted that Dr K had pointed out how Ms M delayed for two months before reporting the alleged erection incident.  He conceded that Mr G had not been told about the DHS attending in respect of Ms S and B.  Nonetheless, when Mr G came to his house he saw a lovely family environment. 

7. The father said that the disclosures made to Ms Z recently took place on a brief visit and the children were accompanied by their mother.  He queried whether they had been coached.  He pointed out that Ms Z had not seen him with his children. 

8. The father said he was a mess for a time.  He had spent $80,000 on his solicitors at the commencement of the proceeding and was still on a rollercoaster when he met Ms S.  He said then came B and he has now changed.  He said with the mother he was never really there.  He said he often breaks down in his sessions with Ms D.  He said he had no father and no role model.  He said he used to spoil the girls a lot, but Ms S told him to slow down a bit.  X was not used to this.  He confirmed that he sought to spend six hours each Sunday unsupervised.  He wanted to do practical things like go to the zoo and ride on bikes.  He did not seek overnight time. 

9. He said that the mother will lie and that he did not trust her at all.  He did not want to see the mother at changeover and would like changeover at Berry Street Contact Centre if practicable.  He wanted to go to Father’s Day at school and wanted to attend functions at school and be part of the children’s life.  He said he had proved beyond any reasonable doubt that the mother, the maternal grandmother, the paternal grandmother and Ms M’s material was not worth the paper it was written on.  He said that the photographs being Exhibit A1 showed what things were like at his house.  He said that anything less than the current time presently ordered would have a huge psychological impact on both children.

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

Application of the statutory pathway

1. The Court is first required to consider whether to apply the presumption that it is in the best interests of the children that there be an order for joint parental responsibility.  The father seeks that there be such an order and the mother and the Independent Children’s Lawyer oppose.

2. The presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent is engaged in abuse of the child or family violence (s.61DA(1) and s.60DA(2) or where the presumption is rebutted because the Court considers that an application of the presumption of the equal shared parental responsibility would conflict with the best interests of a child (s.61DA(4)).

3. In this case, there is no doubt in my mind that the father has, as earlier indicated, engaged in family violence.  The evidence, in my view, is clear and overwhelming.  The reasons I have already set out at some length above do not require repetition.  The father has engaged in family violence towards the mother.

4. Further, the evidence taken as a whole, (and indeed the evidence of both parents is clear), is that they are utterly unable to communicate with each other.  The communication book tendered in evidence shows all too numerous examples of this and it is not necessary, once again, to repeat the remarks I have earlier made about some of the material the father has felt it fit to include in it.

5. The father, both in materials filed in the communication book, in his affidavit and in his oral evidence and in everything he has said about the mother to third parties such as the family report writer, has made the most extraordinary and, as the Independent Children’s Lawyer’s written submissions say, vile remarks about the mother.  He continues to cling to a very sincere but utterly misconceived belief that the mother has all the grossly off putting qualities he ascribes to her.  He genuinely believes that the mother prostituted herself for drugs, had sex with her intimate family, and even worse, thinks that the mother has suborned the children to perform acts of oral sex with men, including it would appear, the mother’s current partner.  The father refers to the mother’s current partner in the most unnecessary and derogatory terms.

6. As the Independent Children’s Lawyer rightly submits, there is absolutely no conceivable way that the parties would be able to exercise their shared parental responsibility in the manner required by s.65DAC.

7. Accordingly, I find that the presumption for equal shared parental responsibility is rebutted comprehensively.  Not only has the father engaged in family violence towards the mother, but the other issues I have described above comprehensively compel the conclusion that it is not in the children’s best interests that there be such an order.

8. As the Full Court said in paragraph 65.10 of the decision in Goode & Goode:

   “When the presumption of equal shared parental responsibility is not applied, the Court is obliged to consider what arrangements will best promote the child’s best interests, including, if the court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents.

   These considerations would particularly be so if one or other of the parties were seeking an order for equal or substantial and significant time but, as the best interests of the children are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.  The child’s best interests remain the overriding consideration.”

9. Here, no party seeks either equal time or substantial and significant time within the meaning of the Act. It therefore becomes a question of considering the children’s best interests by reference to the matters in s.60CC of the Act.

Section 60CC(2) the primary considerations

1. The first consideration set out in s.60CC(2) is the benefit of the child having a meaningful relationship with both of their parents. The children love the father and the father adores them. He has prosecuted his case with great vigour and determination and I have no hesitation in saying, not for the first time in this decision, I accept that he is utterly devoted to them in his own mind. Ordinarily one would say, given the relationship he has with the children and particularly Y, that it would be in the children’s best interests unequivocally to have a meaningful relationship with him. In this case however that observation needs to be approached with some caution.

2. The father demonstrably and very significantly lacks insight and restraint.  There is this very disturbing incident described by Ms M.  There is the father’s incapacity to realise that his constant and disgraceful denigration of the mother is not in the children’s best interests.  It seems all too likely that the steps necessary to maintain the children’s level of contact with their father at a level he would regard as appropriate will continue to expose the children to the detrimental effects of the father’s combat in relation to the mother and her family and any partner with whom she may form a relationship. 

3. It is clear from the reports of both Ms M and Mr K that X is already old enough to be compromised by this aspect of her time with her father. Given his complete incapacity to move forward and away from his criticisms of her, the maintenance with the relationship between the father and the children is rendered problematic by his own lack of insight and conduct.

4. This takes us entirely appropriately to the second criterion in s.60CC(2) to which I am required by s.60CC(2A) to give greater weight. It is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. There is of course the latent risk that the father might misconduct himself in some sexual way with X. Clearly that is abuse and family violence. Moreover, family violence has an expanded definition contained in s.4AB of the Act. It means “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (family member) or causes the family member to be fearful.”

6. Examples given in s.4AB(2) include assault, stalking, and repeated derogatory taunts. There is no question that the father has assaulted the mother. I cannot find that he has stalked her although the mother’s evidence about this appeared to be given with conviction. The particular example to which she deposed did not seem to me to fit that definition. Where there is even less room for doubt however is that the father has repeatedly offered derogatory taunts to the mother. He continues to do so.

7. The primary considerations therefore tend against the father. 

The additional considerations in s.60CC(3)(a)

1. The children are seven and five years old respectively.  Any views expressed by them therefore must be approached with this very important qualification in mind.  The children have purportedly told the Independent Children’s Lawyer recently that they do not wish to spend time with their father.  I do not accept that that expression of view is tainted in the fashion that the father suggests.  The Independent Children’s Lawyer is an extremely experienced practitioner and there is no reason to suppose that she is sufficiently lacking in skill or insight accurately to elicit information and report.

2. Nonetheless the children’s views as I say must be approached with caution not just because of their age.  It is clear that their mother would do what is within her power to inhibit the children’s relationship with the father. 

3. Furthermore, the reports of both Mr K and Ms M show that the children, particularly Y, do appear to love their father.  I note however that the relationship with X has become increasingly conflictual because the father persists in denigrating the mother to her.

Section 60CC(3)(b)

1. Taking the evidence as a whole there is no question but that the children have an excellent and loving relationship with their mother.  She has been their primary carer all their lives.  Their relationship with the father I have just traversed. 

2. The children also have an excellent relationship with both their grandmothers, both of whom have lived with them for periods of time. The paternal grandmother still does.  Although the paternal grandmother presented as emotionally fragile (perhaps scarcely surprisingly given the nature of the questions her son put to her) there is no reason to doubt that she is an effective assistant to the mother in the care of the children and there is no reason to doubt that the children love her also.

Section 60CC (3)(c)

1. The strenuously contested nature of this case speaks for itself.  The mother has as I say essentially been the primary carer of the children throughout their lives.  The father has not had nearly so much time with the children but has sought every opportunity to obtain time with them.  Although there was a protracted period of time following separation that the father did not see the children, I do not in the scheme of things regard this as a matter of any moment.  The father was clearly distraught at the end of the relationship, not least because of his delusional concerns about Mr M and other matters.  I do not think he ever consciously abandoned the children.

Section 60CC (3)(ca)

1. The mother has always looked after the children.  The father’s conduct in this regard is woeful.  He adamantly refuses to pay child support.  He has sworn as to very limited finances but this sits oddly with his assertion that he said he spent $80,000 at the commencement of the proceeding.  I have no doubt that he will manipulate his circumstances to ensure he never pays child support and no doubt that his actual income is greater than he said it was, although I cannot quantify it.  His assertions that any money paid by way of child support would be wasted on drugs is, like so many of his assertions, outlandish.

Section 60CC (3)(d)

1. No one is seeking that the children be separated from the mother, save that the father seeks that he spend six hours with the children unsupervised every Sunday and further time on special occasions.  Although ordinarily this is a very significant criterion, in the particular circumstances of this case it has less work to do.  The real issue as the case now stands is whether the father spends six hours per week unsupervised, three hours per week supervised or the regime contended for by the Independent Children’s Lawyer.

Section 60CC (3)(e)

1. There is no particular practical difficulty or difficulty related to expense of the children spending time with the father.  Despite his allegedly limited income he appears well capable of paying for the supervised time that he has obtained to date.

Section 60CC (3)(f)

1. The mother is clearly well able to care for each of the children and the two grandmothers are likewise well able to do so to the extent that it is necessary or otherwise occurs. 

2. The father’s capacity to provide for the needs of the children, including their emotional and intellectual needs, is more unclear.  All those who have interviewed or observed the father seem to agree that he is capable of meeting their simple material needs such as clothing, food and the like.  The difficulty, however, is his lack of insight into their emotional needs.  Given his longstanding and deeply held views about the mother and her family (and his own mother) and his incapacity to shield the children from them, his capacity to cope with the children’s emotional needs must be said to be extremely compromised.

Section 60CC (3)(g)

1. Neither of these parents present as wholly optimal.  The mother’s past history has included a series of failed relationships, not least with the father.  Having two children with a man to whom you are insufficiently committed even to live with permanently must necessarily attract some measure of question.  Nonetheless, as I have said more than once, I roundly reject the criticisms of the mother advanced by the father.  She is not promiscuous, incestuous, a drug taker or a prostitute and she does not abuse alcohol.  She, out of a misplaced sense of family loyalty and/or defensiveness, has sought to underplay the clearly violent and criminal nature of a number of her family members, but that is the only significant criticism that can be advanced of her.

2. The father is subject, regrettably, to a number of criticisms.  The professional witnesses have uniformly commented on his lack of insight, lack of self control and obsessive behaviour.  The photographs annexed to the mother’s affidavit sworn 23 January 2014 showing the father in the company of what can only have been prostitutes, and the behaviour indicated therein, clearly not taken when he was particularly young, shows a distasteful, disturbing sort of behaviour.  He is as the Independent Children’s Lawyer submits, profoundly misogynist.  For him, women are either saints or prostitutes. 

3. He is a man of average intellectual capacity as Dr K found but his lack of insight is extremely disturbing.  He is thoroughly prone to blaming everybody but himself for any difficulties he encounters.  Much of the father’s difficulties may well emanate from the dreadfully unfortunate childhood he had and the appalling sexual abuse inflicted upon him.  He deserves every sympathy in that regard.  But there is simply no escaping that for whatever reason his personality is not that of a rounded and mature adult but a deeply flawed one.

Section 60CC (3)(h)

1. This is irrelevant.

Section 60CC (3)(i)

1. This matter is important but has really largely been dealt with in the above matters.  The mother’s attitude to the child and the responsibilities of parenthood is unproblematic.  The father’s attitude to the children is entirely praiseworthy in as much as he clearly loves them devotedly.  His attitude to the responsibilities of parenthood is less satisfactory.  I have already dealt with his refusal to contribute to the children’s financial wellbeing. 

2. I would also say that having observed him over some time in the witness box there is in his attitude toward the children and his attitude as a parent a worrying sense that he is visiting upon the children the things that he thought, correctly, were wrong in his own childhood.  Furthermore a man who expresses himself about the mother of his children in the terms that he has can scarcely be said to have demonstrated a proper attitude towards parenthood, given that respect for the other parent may reasonably said to be a relevant matter.

Section 60CC (3)(j)

1. This is important but I have already dealt with it.

Section 60CC (3)(k)

1. There are multiple Intervention Orders either now or in the past.  This is important but nothing more needs to be said about it at the moment.  I take it into account.

Section 60CC (3)(l)

1. These parties desperately need this litigation to end.  The litigation has been underway for over three years.  In the case of Y it is the only state of affairs she has ever known.  Both these young children deserve to grow up from now on without litigation between their parents.  The orders I propose to make will be final orders.

Section 60CC (3)(m)

1. There is a matter which I could probably have set out under one of the above headings but which is of very considerable significance.  Like the Independent Children’s Lawyer I am profoundly disturbed by the failure of the father to reveal to anyone, until effectively he had no choice, the intervention proceedings relating to Ms S and his new daughter B.  Contrary to the picture he tried to paint initially, things have not always been well between him and Ms S.  Ms S made reports of family violence which lead to the DHS and Children’s Court intervention to which I have referred.

2. The father’s failure to reveal this, and when challenged about it to assert that it was irrelevant, speaks yet further volumes.  His failure to mention it was in my view more probably than otherwise witting.  He is intelligent enough to realise that it would be an embarrassing revelation.  In my view it is more probable than otherwise that he deliberately suppressed it.  Even if however, contrary to that view, his suppression of this very important material was not as it were deliberately dishonest, the lack of insight that even an innocent failure to reveal it would indicate is extremely disturbing.  The father abused Ms S for going into early labour because she ate a pizza.  Such an outlandish assertion requires no further comment.

3. It is not necessary to re-rehearse the material ultimately revealed by the Department of Human Services.  The father’s capacity to control his anger, even allowing these events took place before he did his men’s behaviour change course, is deeply troubling.  This is all the more so since in my observation the father has certainly, if he has changed, not changed nearly enough.  He remains angry and lacking in self-control.

Conclusion

1. Taking all these matters into consideration, and bearing in mind particularly the matters in s.60CC(2)(b), the result is all too clear. The Independent Children’s Lawyer seeks that the father’s time be restricted to four visits a year. This time should be supervised. The mother submits it should be for two hours and no more. It will involve the virtual excision of the father from the childrens’ lives.

2. While I fully accept the submission of the Independent Children’s Lawyer that reducing the father’s time in this way will leave him distraught, and that distress will be wholly genuine, most unfortunately there is no alternative in the children’s best interests.  The evidence and the considerations resulting from that which I have set out above, lead inexorably to the conclusion that the children’s best interests will be served by making the orders that the Independent Children’s Lawyer seeks. 

3. I will limit the time to two hours per quarter as the mother seeks. These will necessarily be fleeting and emotionally charged occasions. They should not go on too long.

4. The orders sought by the Independent Children’s Lawyer as to travel (including passports) are clearly appropriate. There is no risk whatever the mother will abscond with the children.

5. There will be orders accordingly. I have decided the times of the visits myself. The parties are not in any way likely to be able to agree. 

I certify that the preceding three hundred and thirty-three (333) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  5 December 2014