LANGDON & DODD

[2015] FamCA 407

FAMILY COURT OF AUSTRALIA

LANGDON & DODD [2015] FamCA 407

FAMILY LAW – CHILDREN – Best interests – competing proposals for parenting orders for three children of the marriage aged nine, eight and six – serious allegations of sexual abuse by the father of the children’s half-sister who is now aged 15 – father charged, however trial in County Court discontinued by the Director of Public Prosecutions – whether the father is an unacceptable risk of sexually abusing the three children of the marriage – whether the father should spend unsupervised time with the children – father found to be an unacceptable risk – orders made for supervised time only.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
Johnson & Page (2007) FLC 93-344
Slater & Light (2013) 48 Fam LR 573

APPLICANT:

Mr Langdon

RESPONDENT: Ms Dodd

INDEPENDENT CHILDREN’S LAWYER: Alex McCormack

FILE NUMBER: DGC 446 of 2012

DATE DELIVERED: 1 June 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 6–7, 10–14, 17–20 November 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Peter O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McCormack & Co Solicitors

Orders

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for the children of the marriage, W Langdon born … 2005, J Dodd born … 2006 and H Langdon born … 2008 (“the children”).

3. The children live with the mother.

4. The children spend supervised time with the father for up to 4 hours once per fortnight on a Saturday at times and a location as nominated by the supervisor and which is agreed by both parties until such time as the eldest child reaches the age of 12 or such earlier time as agreed in writing between the parties.

5. The time spent pursuant to the previous paragraph:

   (a)shall be supervised by O Community Services or such other supervisor as is agreed between the mother and the father or failing agreement, a supervisor nominated by the Director of Court Counselling at the Family Court of Australia at Melbourne;

   (b)the cost of supervision shall be borne by the father; and

   (c)the mother is responsible for transporting the children to the supervisor.

BY CONSENT IT IS ORDERED THAT:

1. The mother and father shall communicate regarding the children, via email and in the event of an emergency, the parents communicate via text or mobile telephone directly with each other.

2. The children may contact the father by telephone at any time in accordance with their wishes and the children may contact the mother by telephone at any time in accordance with their wishes when spending time with the father.

3. The father may contact the children via the mother’s mobile telephone during reasonable times that they are not in his care. 

4. Each parent shall advise the other of any illness or accident suffered by the child or children, other than of a minor nature, whilst in their respective care as soon as practicable. 

5. The parties shall authorise the medical or other practitioners involved in the treatment of any of the children to communicate with the other parent and both parties must advise the other parent of the medical and other practitioners managing the illness or accident of the child or children as soon as practicable.

6. The mother shall provide to the father the name and address of the usual general practitioner of the children.

7. The mother shall authorise the father to receive all school notices related to the children and the father to provide the children’s school with his name and address.

8. The father may attend all school events to which families are invited subject to the terms of any intervention order.

9. The Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 446 of 2012

Mr Langdon

Applicant

And

Ms Dodd

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding concerns competing proposals for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The three children of the marriage (“the children”) are W aged nine years, J aged eight years and H aged six years. The applicant father is also the step-father of Y who is the half-sister of the children and the child of the respondent mother from a previous relationship. An Independent Children’s Lawyer represented the children’s interests. The proceeding was transferred from the Federal Circuit Court to this Court on 19 December 2013.

2. A central issue in the proceeding concerns Y, who is now aged 15 years.  On 27 January 2012, when she was aged 12, Y made allegations that her step-father (the father of the children) sexually abused her some years previously, around the time she was in Year 2.  Y also complained of inappropriate touching over clothing and an incident when he had exposed his penis to her at a time more proximate to the time of her complaint. These allegations were denied by the father when he was interviewed by police and he has consistently denied them ever since.

3. The father was indicted on two charges of incest, three charges of committing an indecent act with a child under 16 and one charge of attempted incest.[1]  In the indictment, these offences were alleged to have occurred in 2008.  However, at the special hearing in the County Court, the indictment was amended to the year 2007.[2]  At the committal hearing in the Magistrates’ Court, the mother was cross-examined about Y’s complaints and the father was committed for trial.  At the County Court, the Director of Public Prosecutions (“DPP”) discontinued the prosecution in November 2013 after Y was cross-examined in a pre-recorded audio visual hearing (“special hearing”) over two days.  

   [1] Exhibit 2.

   [2] Exhibit ICL-B (Transcript from the special hearing) at 4–5.

4. It is the mother’s case that Y’s allegations are truthful and that a finding should be made that the father sexually abused Y.  In the event that such a finding cannot be made, the mother seeks that the father nonetheless be found to pose an unacceptable risk to the three children of the marriage.

5. The mother proposes that the father continue to spend supervised time with the children in accordance with interim orders made in the Federal Circuit Court on 31 October 2012.  Those orders provide for the children to spend strictly supervised time with the father for up to two hours each fortnight on a Sunday at times nominated by the supervisor.  There is a preference expressed in those orders for the venue to be at the home of the paternal grandparents and this is where the father has spent time with the children in the intervening period.   O Family Services have supervised those arrangements.

6. The interim consent  orders also provide for the paternal grandparents to spend time with the children once per month between 12 noon and 4.00 pm on a Sunday and that two hours per month of that time occur after the conclusion of the father’s fortnightly supervised time periods.  There is a restraint on the father attending for this time.

7. The father’s case is that the allegations against him are entirely fabricated. There is some inconsistency in terms of precisely what he asserts.  The lack of coherence in his argument centres particularly on the motives for the false allegations.  In part, the father blames the mother for causing Y to make the allegations against him.  In the father’s account, the mother’s role varied from active collusion to unwitting influence.

8. On the one hand, he claims that the mother influenced or colluded with the child to make false allegations because the mother believed the father was having an affair. On the other hand, he asserts that the child was influenced by the mother because she had heard the mother discussing her own sexual abuse.

9. The father also relies upon some evidence that the mother asked Y leading questions, for the proposition that the complaint made by the child to her mother was false. At the same time, the father depicts Y as a cunning and manipulative child who held a grudge against him and concocted the allegations in order to get rid of him, precipitated by an argument which occurred the night before the allegations were made.  Of course the father’s argument, of necessity, really amounts to speculation on his part for Y’s motives because he maintains the allegations are false.

10. It is also the father’s case that the mother failed to facilitate his relationship with the three children and continues to do so.

11. The father ultimately proposes that he spend time with the children in accordance with the proposals of the Independent Children’s Lawyer.

12. At the commencement of the hearing the Independent Children’s Lawyer did not have a view about the parenting orders which might be in the best interests of the children.  However, at the conclusion of the trial, the Independent Children’s Lawyer proposed that the father spend unsupervised time with the children with a number of conditions.

13. At the conclusion of the trial, the Independent Children’s Lawyer and the father proposed that the parents have equal shared parental responsibility for the children.  The mother proposed that she have sole parental responsibility for the children.

Background

1. The parties met at a meditation class in 2004 and began a relationship.  At the time, the child Y was five years old.

2. The parties commenced cohabitation in 2004 and separated for the first time, in March 2006.  The child J was born during this separation period and has a different surname from her siblings (that of her mother). In or around the beginning of 2007[3] the parties reconciled and were married in April 2011.  The parents disagreed on the exact date of the marriage[4] but it was agreed that a marriage took place in April 2011.

   [3] The father in his outline of case document states that it was April 2007 whilst mother in her affidavit sworn 11 September 2014 deposes that the parties reconciled in January 2007. 

   [4] The mother’s evidence was that the date of the marriage was … April 2011 while the father’s evidence was that it was … April 2011.

3. The parties separated on a final basis on 27 January 2012, when Y told her mother that she had been sexually abused by the father.  Y was interviewed by police on the same day and the interview was recorded.[5] That day, the father was charged by Victoria Police, as outlined previously.

   [5] Exhibit ICL-A (VARE interview).

4. The father is now aged 41 years and deposed[6] that he is a sales representative but that he is “employed on a casual part time basis, having been unable to find full time employment”.    

   [6] Affidavit of the father filed 29 October 2014.

5. The father has re-partnered and lives in Suburb N with his new partner, Ms T, and her three daughters who, at the time when Ms T affirmed an affidavit on 24 August 2014, were aged eight, six and five years.  The father and his partner commenced cohabitation after the County Court trial was discontinued in November 2013.  

6. The mother is aged 37 years and is engaged in home duties.  She has not re-partnered and lives in Town U with the children and Y. 

7. On 16 February 2012, when the criminal charges were not yet resolved, the father commenced proceedings in the Dandenong Registry of what was then the Federal Magistrates Court, seeking final parenting and property orders by way of filing an Initiating Application and a Notice of Risk of Abuse.  On 22 March 2012, the mother filed a Response. 

8. In January 2012, the mother obtained an interim intervention order against the father, wherein she and the four children were named as affected family members. On 8 May 2012, a final intervention order was made until further order. This order was made with the consent of the father, without admission,[7] and lists the mother and the four children as affected family members. By consent, this intervention order was amended by further order of 13 November 2014, to explicitly make it subject to any order of the Family Court of Australia on the condition that the father does not commit family violence in doing so.[8]

   [7] Affidavit of the mother sworn 9 September 2014, Annexure “A”.

   [8] Exhibit ICL-C.

9. The matter proceeded before Federal Magistrate Hughes (as her Honour then was) and a number of interim hearings were conducted.  On 26 March 2012, Federal Magistrate Hughes ordered (among other things) the appointment of an Independent Children’s Lawyer.

10. Final property orders were made by consent on 5 March 2013, leaving only parenting matters on foot. 

11. Interim parenting orders were made by Federal Magistrate Hughes on 31 October 2012 providing for the children to spend supervised time with the father for up to two hours fortnightly on a Sunday.  A preference was expressed for the father to spend time with the children at the home of the paternal grandparents.  A supervised contact centre or O Community Services was to be utilised for the purposes of changeover.  The orders also provided for the children to spend time with the paternal grandparents monthly on a Sunday in the absence of the father.  By consent, the orders stipulated that the father was to undergo a psychosexual assessment by an expert nominated by the Independent Children’s Lawyer.

12. On 19 December 2013, orders were made by Judge Hughes transferring the matter to the Family Court of Australia and requesting that the matter be placed in the Magellan List.  However this did not occur as Registrar Field deemed the matter inappropriate for the Magellan List due to investigations of the alleged sexual abuse having already been concluded by both the Department of Human Services (“DHS”) and Victoria Police. 

Issues

1. The parties agreed that the following issues required determination in the trial:

   ·whether on the balance of probabilities, to the standard set out by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”), Y has been sexually assaulted by the father;

   ·if the Court is unable to make a finding as to whether or not the abuse occurred, whether the father poses an unacceptable risk to the children;

   ·if the Court finds that the abuse did not occur, whether the mother is in any way responsible for the allegations being made by Y;

   ·whether the parties should have equal shared parental responsibility for the children or the mother should have sole parental responsibility; and

   ·the time that the children should spend with the father and any conditions to be imposed on that time.

Evidence

1. The documents relied upon by each party are listed in Annexure A.  The father, the mother, the paternal grandmother, the father’s partner, the maternal great aunt (Ms B), Ms G (the family report writer), and Dr E, consultant clinical and forensic psychologist, were cross-examined.  The expertise of Ms G and Dr E was not challenged.

2. In the course of procedural hearings, I ordered that the rules of evidence in the Evidence Act 1995 (Cth), which ordinarily do not apply in child-related proceedings,[9] would be applicable in relation to the issues of:

   (1)        whether the father sexually abused the child Y; and

   (2)        whether the mother was responsible for Y’s allegations. 

   This was in light of the seriousness of the allegations and the consequences of making adverse findings.

   [9] Family Law Act 1975 (Cth) s 69ZT(1).

3. A number of Exhibits were tendered by the parties and in particular the following exhibits were tendered by Counsel for the Independent Lawyer:

   ·Exhibit ICL-A: DVD audio visual recording and transcript of Y’s first interview with the police on 27 January 2012 (VARE interview);

   ·Exhibit ICL-B: Transcript of the cross-examination of Y at the special hearing in the County Court on 12 and 13 March 2013;

   ·Exhibit ICL-E: Transcript of the cross-examination of the mother at the committal proceeding on 21 December 2012;

   ·Exhibit ICL-F: Mother’s statement to police dated 30 January 2012; and

   ·Exhibit ICL-G: Father’s Record of Interview with police on 27 January 2012.

4. The audio visual recording of Y’s interview with the police (Exhibit ICL-A) and the audio visual recording of the father’s Record of Interview with the police (Exhibit ICL-G) were viewed in Court.

5. It is not possible to comprehensively discuss in these reasons every aspect of the evidence, documentary and oral, in the trial.  I have taken the totality of the evidence into account.  If particular evidence is not mentioned here, it should not be assumed that I have disregarded it.

Standard of proof

1. When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities.  Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:

   a)the nature of the cause of action or defence; and

   b)the nature of the subject matter of the proceeding; and

   c)the gravity of the matters alleged.[10]

   [10] Evidence Act 1995 (Cth) s 140.

2. Dixon J explained the application of the standard in Briginshaw (supra):

   [t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences[11].

   [11] Briginshaw & Briginshaw (1938) 60 CLR 336, 362.

The Allegations of Sexual Abuse

1. Firstly it is necessary to outline the allegations that were made against the father to put the trial into context.  Some of the allegations were historical, concerning events that allegedly occurred several years earlier; others were more proximate to the time of Y’s complaint.

2. Y first made the allegations on 27 January 2012.  On that day, she was interviewed by police at N Police Station and the interview was recorded (“the VARE interview”).[12]  She was 12 years old at the time of interview.

   [12] Exhibit ICL-A.

3. Ultimately, the father was indicted on the six charges detailed above.  Five of the six charges concerned the historical allegations.  The indictment specified that the relevant acts had occurred in 2008.  From information gleaned from the transcript of the special hearing in the County Court (“the special hearing”), an application was made to change the year in which these offences were alleged to have been committed and the date was changed to 2007.  The final charge of attempted incest referred to events that allegedly occurred in 2011. 

Summary of the VARE interview conducted 27 January 2012

1. The police conducted an audio visual recorded interview with the child Y on 27 January 2012 which was the same day that she complained to her mother of the father’s conduct.  The child stated in her interview with police that the alleged abuse had “been going on for a few years”.  She thought she had been in Year 2 when it began, though she couldn’t recall how old she was at the time.  When asked specifically what the father had done to her, she said that he had “been raping me”, “touching me in places where I don’t feel comfortable” and that he had “licked me in places where I don’t feel comfortable” and “done things that I didn’t really like, like touched me with his hands and other parts of his body parts … Like, with his body parts touching mine.”

1. Y was asked to describe the first incident that she could remember.  She said that she thought she had been reading a book and he was kneeling down next to the bed.  She thought that he had “starting licking me first” and that he had licked his finger and “stuck it down there”.  She said that he had “popped his thing into my downstairs body part” and that she had then told him that she was getting cold, he put her pants back on and she continued reading.  The interviewing police officer asked her to describe everything, step by step, from the moment she chose the book she was going to read.  She stated that she could not remember much “’cause I was young and, yeah, all I remember was him touching me, licking me, doing things he shouldn’t be doing downstairs.”

2. Y said that “last year and the year before he hasn’t been doing this stuff, he’s just been touching me”.

3. The interviewing officer again asked Y for detail of the earlier event. She said:

   OK. I think he started sucking his finger and putting it down there and pushing hard. I remember him licking in circles and just normally licking it and I remember him trying to shove his thing into my thing, I think. I don’t know how to describe it. I think try and make a baby or something, I don’t know. Yeah, that’s when I said, Stop, I’m cold, no. And then at the end when we finished reading the book I said, Goodnight, and I think that’s when he tried to tongue-kiss me and that’s, I gave him a hug and then he tried to kiss me on the lips, which I didn’t want, and, and then he managed to get me head round and kisses me on the lips and tongue-kissed me and then said, Goodnight, and then I think he went, I don’t really remember much, and I think I was crying in bed.

4. When asked what part of her the father was licking, Y said “the front part down below” and then clarified that she was referring to the front part of her vagina. 

5. Y then went on to describe how the father had “licked his finger and put it on the nerve spot”.  When asked where the nerve spot is, she replied, “I think it’s where the girls have their period.”  She explained that, when his finger was on her “nerve part”, he rubbed it up and down and in circles and pressed hard on it.  Y also said that the father “used to rub my nipples in circles with his finger”.  She thought that this was also when she was in Year 2.

6. Y then stated that the father had “put his private part down on my vagina … trying to get in the hole that makes a baby or something”.  She said that “he tried to shove it in there and that hurt too”.  She said that “It was cold and wet” because he “sucked on his finger and put it on his thing to make it wet and popped it in my vagina.”  She then clarified that he had only tried to get it in, but wasn’t able to.  She was asked how this felt and she said, “It felt really uncomfortable and cold and wet and it hurt.”  Later in the interview, Y clarified that by “his thing”, she meant the father’s penis.  She was asked to describe his penis; she said she had not seen it at all but that “It felt yuk and cold and squishy and wet and uncomfortable and it hurt when he tried to do that.”

7. Y was asked how she knew about “the hole that makes a baby”.  She said that she had had “knowing and growing” classes in Years 5 and 6 and she and her mother had had a discussion about pregnancy when she was in Year 3, during which her mother had shown her books about pregnancy “and how to do it all”. 

8. Y then went on to describe an incident that allegedly occurred in 2011 when her mother was “at the doctor’s or something”.  She said that this incident happened in the bathroom when she was changing her earrings and the father was helping her clean them.  She referred to cleaning her ear and earrings with Dettol in the sink. She stated:

   He helped me clean and he had his dressing gown on, his black dressing gown which comes up to his knees and his thing was poking out stiff and he was helping me clean it and I kept looking away ’cause he tried to, I think he tried to get close that’s why I kept moving back and, yeah, I remember him helping me clean my earrings and I asked him, trying to distract him, instead of, like, standing up, like, Is this clean and off, and all that and he’s like, Yeah, I think it is, and all that.

   She went on:

   I think [J], my sister, I think called for something. I don’t know what happened but that’s when he put it away, did his dressing gown up and that’s when I started cleaning and I think I said, Thank you, God. And then that’s when I put my earrings in and then I had to ask him again, Is this one clean enough, and then he did it again, his thing came out all stiff and, yes.

9. She was asked whether this all occurred on the same day and she responded that it had.  She stated that this occurred in the bathroom of their home and again clarified that when she spoke about the father’s “thing”, she meant his penis.

10. Returning to the details of the first incident described, the interviewer asked Y to further elaborate on the “tongue kiss” she had mentioned previously. Y said, “He just, like, he, like, moved it back and forth, like, back into his mouth and then into mine and into his and into mine, licking it all around and, yeah …”

11. Y stated that she had stopped reading stories at night and, since then, “he hasn’t been doing that type of, like, putting his penis onto my vagina and all that. He’s just been touching me but with clothes on, everything on.”  When asked to describe such an incident, Y said that he touched her “down the bottom” when they were playing a tickling game.  She also said that the father sometimes “squeezes my bottom” and that he had “touched me on my vagina … he touched it or squeezed it a little bit.”  She described another occasion when she gave him a hug and he “wiped his hand on my boobs”.

12. The interviewer asked Y to talk about what had happened that day to make her decide to tell her mother the truth.  Y said that her mother had asked her why she was reluctant to hug and kiss the father and Y began to cry.  She said that her mother then asked, “Has he touched you anywhere or anything?”.  She stated that she didn’t want to tell her mother because she didn’t want her to get hurt and “didn’t want us to be homeless”.  However, she told her mother and her mother was the first person she had told about any of this.

13. The interviewer asked if there was anything further that Y could recall.  Y stated that she thought that during the reading incident the father had pulled down his pants to reveal his penis and then put her hand on it.  She said that she moved her hand away and he pulled it back again, after which she put her hand beneath her body and he pulled his pants up.  She stated that she had not seen his penis, “It just felt yuck and squishy”.  She described his penis as “floppy” at this time.

14. Near the end of the interview, Y was asked to tell the interviewer about her relationship with the father.  She replied, “I think ever since he’s been doing things to me, I haven’t loved him at all.  I don’t really like him.  I don’t see him as my real father”.

The applicant father

1. The father was cross-examined by the mother and counsel for the Independent Children’s Lawyer.

The father’s evidence about his relationship with the children, W, J and H

1. The father deposed that during the marriage he had an excellent relationship with the three children of the marriage and was thoroughly involved in their schooling and extra-curricular lives. He deposed that he wishes to re-establish this relationship while they are young and provide a positive role model to them. [13] 

   [13] Affidavit of the father sworn 29 October 2014 at paragraph 3(a)

2. Following the allegations made by Y in 2012, the father deposed that the mother has failed to facilitate his relationship with the children and the paternal grandparents.

3. The general tenor of the supervised contact report of O Community Services dated 2 November 2014 (“the O report”) was the visits have been progressing well and that the children enjoyed the time with the father.  The report states that:

   Overall the children have settled in well with these arrangements.  [H] the youngest was a little apprehensive on the first occasion but soon settled. 

   All 3 children are eager and excited to be spending time with their father and their grandparents.[14]

   [14] Exhibit 6 : Supervised contact report of O Community Services dated 2 November 2014, page 2.

4. However, the report did note that the only ongoing concern during the father’s supervised time with the children is the children’s reaction to his new partner.  The report notes that:

   The way the situation was introduced to the children by the father was very concerning and inappropriate and the Supervisor did intervene.  But the children had already heard their father tell them that [Ms T] was his girlfriend, he lived with her and they would come and sleep over.  She would be their mum.

5. The father was assessed by Dr E as “highly accomplished in sporting, educational and employment pursuits.” Dr E stated that he is an “educated and intelligent man” of “above-average intellectual capacity.” He has competed in martial arts competitions and teaches both advanced and beginner students. 

6. The father consistently and vehemently denied that he had sexually abused Y.  He participated in a Record of Interview with police on the same day that Y had been interviewed by the police, at which time he denied all of the allegations.[15]

   [15] Exhibit ICL-G (27 January 2012.

7. The father had various explanations and theories as to why the child Y originally made, and has not retracted, the allegations against him. These were as follows:

   ·Y had a history of lying and manipulation.

   ·The mother colluded with Y to make false allegations.

   ·Y had been influenced by conversations she overheard about sexual abuse within the maternal family as well as sexual education she had received from her mother at a young age.

   ·Y hated him and wanted to get rid of him.

8. Each of the father’s explanations will be discussed in turn, followed by a discussion of the remainder of his evidence and cross-examination, as well as my assessment of him as a witness.

The child Y’s alleged history of lying and manipulation

1. The father deposed that Y had a history of lying.[16]  He also deposed that Y was unable “to distinguish between truth, lies and secrets”.[17]  As evidence of this, the father points to the fact that Y understands that the Tooth Fairy, Santa Claus and the Easter Bunny are not real, but each year pretends that they are. When cross-examined by the mother, the father conceded that Y did this in order not to spoil special times of the year for her younger siblings.  Nonetheless, the father persisted in emphasising, “But in doing so, is she not lying to the other children?” 

   [16] Affidavit of the father filed 29 October 2014 at [4(b)].

   [17] Affidavit of the father filed 29 October 2014 at [26(g)].

2. When cross-examined by counsel for the Independent Children’s Lawyer, the father was pressed to provide examples of Y’s alleged history of “telling lies”.  The father said, “Any time she was in trouble, there was always an excuse, no matter how far-fetched”.  When asked to provide specific instances of this, the father gave the example of her lying about having broken a light in the lounge room, where he had seen her throwing something moments before.  Counsel for the Independent Children’s Lawyer asked whether she might simply have tripped over, to which the father replied, “Highly unlikely”.  The father then gave the following further two examples of Y lying to get out of trouble:

   ·Y had been told not to rock on the chair in her bedroom.  Eventually, the back legs of the chair broke.   Y claimed not to have been rocking on the chair.

   ·Y “[g]ot busted kneeing the dog in the head”.  She claimed that she had tripped and the dog tried to jump on her.

3. The father went on to state that Y “got into major trouble in school”.  When urged by counsel for the Independent Children’s Lawyer to give more detail, he said that she had been “answering back to teachers, had detention and things in school”.  However, he could recall no further detail other than that she had been talking in class and had a general disregard for her teacher and other adults.  Counsel for the Independent Children’s Lawyer suggested that Y did not sound too badly behaved, on this description, and the father conceded that “she wasn’t throwing rocks at peoples’ heads” or anything of that sort, and that there were no chronic or constant issues at school that he could recall.  

4. The examples proffered by the father about Y being in trouble at school were not significant and I do not accept that Y was a trouble maker at school.  The father’s evidence on this point is an exaggeration to bolster his case and tarnish Y’s credibility.  

5. Y’s alleged history of lying, particularly to get out of trouble, was connected in the father’s case to the argument that took place between he and Y the night before the allegations were made.  It is agreed between the parties that an argument took place that night, though the question of how the argument unfolded is contested.

6. The father’s version of events is that he was at the kitchen table with J and Y who had been finishing her dinner.  The mother was upstairs in the bathroom with the other children.  According to the father, J went to give Y a hug, Y bumped her and said, “[J], I’m eating”.  The father’s evidence is that J looked “shattered” and he then had words with Y, telling her that her attitude “sucked”.  He stated that later, in the bathroom upstairs, he called her “no love [Y]”.  The father stated that he told Y that he was sick of her attitude and sent her to her room.

7. Cross-examined about the mother’s version of the events in the bathroom that evening, the father denied that he had said to Y, “You better take that look off your fucking face or I’m going to punch you in the face”.  He denied that Y was crying and that the mother had to get between them.  He also denied that when the mother intervened, he complained to her that Y would not give him a kiss and cuddle good night.  He maintained that he had called her “no love [Y]” because of her attitude towards J.

8. The father claimed that he spoke with the mother in the lounge room directly following the argument, at which time he suggested that Y go and live with her grandfather in Queensland.  He asserted that Y could have overheard this conversation because of the close proximity of her bedroom to the lounge room. 

9. The father argued that because Y had lied to get out of trouble before, she lied this time in order to avoid going to Queensland.  Indeed, the father deposed that Y’s allegations the day after the argument “would have been part of her plan to have her mother to herself and to stay in Victoria”.[18]  The father’s idea that Y formulated this premeditated plan to dispose of him accords with his perception of Y as a “highly manipulative” child.  He deposed that “[Y] tried to manipulate her mother so that [the mother] and I argued … [Y] was determined to have me removed from her life as she didn’t want to have any restrictions placed on her behaviour”.[19]  When asked during cross-examination for examples of Y’s manipulative behaviour, the father said, “The way that [Y] could manipulate her mother any time there was an argument or something where [Y] got in trouble for. Then, before I knew it, then she’d be off sooking to mum about whatever has happened”.

   [18] Affidavit of the father filed 29 October 2014 at [4(b)].

   [19] Affidavit of the father filed 29 October 2014 at [4(j)].

Collusion by the mother and the child Y

1. The father claimed that either the mother actively colluded with Y, essentially putting her up to making the allegations, or tacitly but deliberately assisted her in making them.  The father proposed several possible reasons for the mother to do this.  The father depicted the marriage as “rocky” even prior to the wedding in 2011, and certainly thereafter.

2. In spite of the marital difficulties he described, the father conceded that, prior to separation, they had been inspecting properties because the mother wanted to live on an acreage.  They saw their bank manager in order to determine how much money they could borrow and, according to the father, were confident that they would be able to borrow the money to purchase a new property.  Extracted below is the cross-examination by the Independent Children’s Lawyer on this point.  While rather a long excerpt, it details each of the father’s suggested motives for the mother to participate in Y’s alleged deception:

   As at the end of 2011, it was quite possible that you could’ve given [the mother] what she craved, an acreage in the country?---Yes.

   Ok. And she had no way of getting what she craved independently of you.
   ---No.

   Right. So it would’ve been in her interest to keep the marriage alive and going, would it not?---Unless I – something happened and I died of a heart attack or something, in which case then I had life insurance, which meant that the house would’ve been paid for. She also would’ve then had all of my super, which would’ve given her another $150,000 on top of - - -

   Ok, so short of you, a youngish healthy man, dying, it would’ve been in [the mother’s] interest to keep this marriage going, wouldn’t it?---Yes.

   There was no reason for her to end it was there?---Or unless – like when we split up originally, then I – this was all separated, then she had, basically, child support coming through, single parent’s pension – she was on almost as much by herself as what we were when we were together. Including for the first 10 or 11 months with my paying all the house loans, car loans, everything else as well child support, as well as the extra income she was getting as a single parent.

   So you’re saying that she would’ve believed that if you’d been off the scene, you would’ve been paying child support, the mortgage – what, into the very distant future? Forever? Both child support and the mortgage? And the single supporting mother’s benefit?---No because it depends if you’re talking about me being in jail, no. But then again if you’re talking about me – I’ve had a lot of chest pains …

   Getting back to the state of the marriage, ok, you stated at one point that [the mother] colluded with her daughter in this because she wanted to be out of the marriage, is that correct?---Yes.

   What benefit would it have been to her to be out of the marriage, after what you’ve told us about the acreage, going to the bank for a bank loan, that sort of thing? What benefit would it have been to her to stop the marriage?
   ---Apart from the fact that, well, she actually approached my mother and thought I was having an affair, so there’s one for you straight away. …

   Ok, let’s explore the affair option. When did [the mother] – did she say to you ever “I believe you’re having an affair”?---She’d asked me several times in the previous 12 months prior to the separation …

   How would her being worried or concerned or suspicious of you having an affair, why would that make her, do you think, want to end the marriage?---Easy – to get rid of me. Before I go and try and do something else in this way, if you’ve admitted me into a poor light, you can not only get away, you can also make sure you can keep me away from the kids. …

   Don’t you think you’re pulling a long bow here in relation to this? Think about what you’ve just said, ok?  It appears that financially it is in her interest to keep the marriage going. She’s suspicious about you having an affair, at best, ok?  Now you’re saying that somehow, despite the fact that it’s not going to be in her financial interest to end the marriage, she will end the marriage to keep you away from the kids.  That’s the reason.  Is that what you’re saying?---Yes.

   That was her reason – to keep you away from the kids?---That or not to send [Y] – not to send [Y] away to live with her grandfather in [Queensland].

   …

   You’re saying that she would deliberately put [Y] up to tell a lie to the police about the sexual abuse allegations so that [Y] won’t be sent back to her grandfather in [Queensland].  Is that what you’re saying?---If she hasn’t – if she hasn’t been directly behind the actual allegations being made, she has certainly been a party to them.

   In what way do you say she has been a party to the allegations?---I will point those things out, I have pulled out all of – from the – you’ll find out where there’s numerous things where her and [Y’s] do not match, where they even state – and have changing versions of their own stories.

   Ok, but, to be clear now – I mean, you’re making an allegation that she put [Y] up to this – is that right? Is that the allegation you make, she put [Y] up to this?---That or at least has been a party to the fact. …

   So let’s be clear – you’re saying she put her up to it or – and/or – or she assisted [Y] in [Y’s] actions.---Yes.

   To what end? What purpose?---To make sure that there was no worry that, yeah, I would push on this thing about sending [Y] away.

   Are you saying that she would’ve organised [Y] going to the police, with the risk of court action, cross-examination – a girl of 12 – just to stop her being sent away to [Queensland]? Are you serious?---Or to get rid of me.

   Are you serious?---To get rid of me, yes.

   Why get rid of you?---Because if you get rid of me, then, basically, she has full control of the children again. And I can’t do anything – I can’t do anything to send [Y] away. And that is - - -

   …

   So, are you seriously saying you can nominate a motive for [the mother] setting her daughter up to this and playing a part in it?---The only other one – the only other motive you’d have is the fact that, with her Aunt [Ms B], whether she’s sort of told her about how great it is as a single woman – “you don’t need him” – because it was clearly obvious that she never – she didn’t like having men around and, yes. She may have told [the mother] “you’d be better off without him”. That I can’t tell you.

   So this is a woman, [the mother], who was married to someone before you, the fellow who was the father of her child, and she was left as a single mother – you’re saying she needed to be told what it was like as a single woman by [her aunt Ms B]?---No.

   She knew didn’t she?---Yes.

   Ok. Any other motive you can nominate?---Not that I can think of, no.

1. This cross-examination demonstrates that the father’s theories about the mother’s motive for colluding with Y are dubious at best.

Influence

1. The father alleged in his affidavit material that, during a visit by the children’s maternal great aunt, Ms B, during the summer holidays after Christmas 2012, Y had overheard a discussion between the mother and Ms B about sexual abuse within the maternal family (specifically, the abuse of Ms B and the maternal grandmother by their stepfather).  The father’s evidence was that he had been playing on the floor with the child H at the time and J and Y were seated nearby watching a DVD, within hearing of the conversation.

2. On this same occasion, it was the father’s evidence that the mother told Ms B about her own childhood sexual abuse at the hands of her brother. When asked by counsel for the Independent Children’s Lawyer in cross-examination why he did not intervene, the father claimed that, he did not signal to the mother about the inappropriateness of the conversation because “there were already issues between us and things were not going well”.

3. The father further deposed[20] and reiterated during cross-examination that Y had on many occasions overheard the mother discussing her own sexual abuse.  He deposed that Y had “eavesdropped for many years on the conversations that were going on with adults”.[21]  Counsel for the Independent Children’s Lawyer pressed the father for an example during cross-examination, leading to the following exchange:

   And you’ve got here “listening in to our conversations” – “throughout the relationship, [Y] had a history of telling lies and listening into our conversations”.  What detail can you provide to the Court about that?
   ---The fact that, even when we’ve been talking about things – or, she’s actually started to laugh at something because she’s heard something.  Or she’s actually – she’s actually been foolish enough to even then comment on something that was said in one of our conversations that we were discussing.  She would sit there and pretend to be watching TV or playing with her toys and then come out - - -

   Are you talking about a conversation you’re having with [the mother] in the same room as the child?---Or we’ve gone off into the kitchen to actually have the conversation and she’s sort of followed around into the family room just sitting down here – I’m looking at these toys – trying to hear on what’s actually being said.

   Ok. Well you can see where she is. It’s not as though she’s hiding behind a pillar or anything like that – eavesdropping.---Yes.

   Any examples of her being eavesdropping in that way?---Hiding just around the corner at my grandparents’ house when we’ve been at the – my parents’ house, sorry – when we’ve been at the kitchen table.  And hiding just around the corner of the actual kitchen area.  Sitting there, listening in, claiming she was just sitting there reading a book, but the play room is down the opposite end of the house. So she’s come out and she’s sat there, leaning against the wall, directly around the corner.

   But how old would she have been then?---Ten.

   Well, is it surprising that a 10-year-old girl was listening in to her parents’ conversations, if they’re just there talking in front of them? Is that so surprising?---But she’s there to try and listen in on adults’ conversations.

   [20] Affidavit of the father filed 29 October 2014 at [4(c)].

   [21] Affidavit of the father filed 29 October 2014 at [4(c)].

4. The father’s attempts to depict Y as an eavesdropper seemed to have two purposes.  The first, and most obvious, purpose was an attempt to illustrate that she could have overheard the mother, or the mother and Ms B, discussing their childhood sexual abuse and been influenced by these conversations.  The second, more implicit, purpose of this narrative was as part of the father’s general portrayal of Y as a sneaky child.

5. It should also be noted that the father deposed that the mother had educated Y about pregnancy when the latter was in Year 3, by showing her “books about sex and how to have sex”.[22]  This appears to have been based on Y’s own evidence at the special hearing.

   [22] Affidavit of the father filed 29 October 2014 at [4(c)].

The child Y’s alleged hatred for the father

1. During cross-examination, the mother asked the father why a 12-year-old girl would fabricate allegations of sexual abuse.  The father’s explanation was that Y “hated me and wanted to get rid of me.”

2. The father attributed Y’s negative feelings towards him to a comment he made to her during the parties’ first period of separation in 2006.  He deposed[23] that he visited the mother’s home in order to spend time with the child W.  The mother was present at the time, along with some of her friends, all of whom were “saying hurtful things and making it as difficult as possible whilst I was having time with my son [W]”.  During the visit, Y apparently approached the father and said, “Hello Daddy,” to which the father replied, “I’m not your father – somebody else is”.  In his affidavit filed 29 October 2014 at [18(b)], the father writes:

   I deeply regret the comment that I made, however I cannot take back what was said at the time and [Y] has obviously never forgotten it. [The mother] and her friends would stand around making smug comments during my visits with [W]. I was never even allowed to interact with him with his toys, so I was forced to bring along toys during my visits so I had something to play/interact with him.

   [23] Affidavit of the father filed 29 October 2014 at [18(b)].

3. During cross-examination, counsel for the Independent Children’s Lawyer asked the father about this event.  The father reiterated that he deeply regretted saying this to Y but insisted that he did so “more because of [the mother] and her cronies”.  When asked about the effect of the statement on Y, the father replied that she “walked off” and he didn’t see her again.  Counsel for the Independent Children’s Lawyer asked if she had been upset; the father responded that he did not see as he was preoccupied with W.

4. The father deposed that, from the time the parents reconciled in 2007, the relationship between Y and himself was “turbulent”,[24] and connected this turbulence to the hurtful comment he had made to her.

   [24] Affidavit of the father filed 29 October 2014 at [23(a)].

The effect of the mother’s concerns on the children

1. Counsel for the Independent Children’s Lawyer asked the father to consider the mother’s position, assuming that she truly believes that the father sexually abused her daughter Y.  Counsel for the Independent Children’s Lawyer then asked the father about his perception of the effect on the mother of the children having unsupervised time with him in this context. 

2. The father agreed the mother might be worried and that this might cause the children stress, but said “being the primary carer of the children, would she not then have such a good relationship with her children that she will be able to find out if anything is – untoward is going on?”  Counsel for the Independent Children’s Lawyer then asked the father what measures might be put in place, regardless of the outcome of the trial, to reassure the mother that her children would be safe in the father’s care.  The father responded that the children could be independently assessed on a three or six monthly basis.  The father stated that he was prepared to pay the cost of this counselling, though he conceded that he may only be working part-time in the future. He also conceded that ongoing counselling over a period of 12 years might be a burden, but emphasised the benefits of having an independent counsellor speak with the children on a regular basis.

3. The father also suggested that the mother’s concerns might be quelled to some extent by the fact that he intended to have “one or more adults around … for my own protection” most of the time.

4. The father also relied on a protective behaviour course that W and J had already completed and proposed that H might undertake a similar program.

ISSUES REGARDING THE FATHER RAISED BY THE MOTHER

Pornography

1. During her cross-examination of the father, the mother questioned the father about pornography that he had on his desktop computer at the matrimonial home, during the relationship.  The mother asked the father about the number of pornographic videos on the computer at that time, to which the father replied that he believed the number to be less than 500, though he stressed that this was only an approximation.  The father denied that any of the videos related to child pornography, rape or death.  He insisted that if there were such titles on his computer, the police would have found them and “had a field day”.

2. The mother then sought leave to tender evidence in the form of a report by an alleged computer expert detailing a recently-completed analysis of the father’s desktop computer.  The person who completed the analysis did not swear an affidavit and was not available for cross-examination.  The father had not seen this report until the time of the cross-examination, although it was referred to in the mother’s affidavit material.  The father objected to the report being admitted into evidence on the basis that the police had already checked the computer’s central processing unit and, in light of the charges he was facing, would presumably have laid further charges against him if child pornography had indeed been in his possession. 

3. The report was not admitted into evidence but, at the request of counsel for the Independent Children’s Lawyer, the mother was given an opportunity to cross-examine the father by reference to the titles from the report in order to obtain his response as to whether he had any knowledge of them.  

4. It must be emphasised that there was no evidence about the nature of the analysis and the mother conceded that she was not asserting that the person who undertook the analysis actually viewed any of the impugned titles. The content of any files cannot be assumed on the basis of the titles.  

5. The mother then read to the father some 15 “titles of concern” from among the 700 videos that were found on the father’s central processing unit some of which did include words such as “child porn”, “rape” and “death”.  The father denied all knowledge of these titles and could not say whether or not he had viewed them. The father’s explanation for the presence of these titles on his central processing unit was that he was sometimes given CDs by people at work and would copy them in their entirety without necessarily viewing them.  When asked by the mother which of the titles he had viewed, the father replied, “I can’t tell you which ones I’ve viewed and which ones I haven’t.  I often got them from people at work and may not have viewed them”. 

6. For clarity and to avoid all doubt, having had the benefit of hearing all the evidence, in light of the father’s denials of knowledge of the titles in question, coupled with the deficiencies of the evidence on this issue already mentioned, I place no weight on this aspect of the mother’s case.

Possession of weapons

1. The father conceded that he possessed not more than 50 weapons and that he did not have a licence for any of them.  He maintained that some of these were ornamental swords on display in the house during the marriage, while others were in a cupboard in the garage, string tied together.  He conceded that after he was charged in relation to Y’s allegations, the police seized the weapons, which have not been returned to him. The father stated that he had not been charged with any offences regarding the weapons and had not sought to have the weapons returned.

2. The relevance of the weapons was peripheral to the issues in this case and really only formed part of the narrative of events which occurred when the police became involved.  This is not a factor which I have taken into account in determining the issues.

Alcohol

1. Another peripheral matter raised by the mother was the father’s alcohol consumption. The mother deposed that the father had a “serious drinking problem” before they separated and that the father had misled professionals in reporting that his consumption of alcohol was only moderate. The father denied these allegations. In her affidavit material the mother produced bank records from January 2011 until January 2012 when the parties separated. She deposed that the total amount spent on alcohol during that period was $4,473.98.

2. The father disputed that he had consumed all the alcohol purchased and stated that some of the alcohol was purchased for entertaining at home and for gifts.  It was unclear whether the mother’s case was that the father was a risk to the children because of his level of alcohol consumption.  For the sake of completeness there was insufficient evidence to make any finding about the father’s consumption of alcohol and it is not relevant. There was no evidence that the father was under the influence of alcohol at the time of the conduct complained of by Y.

Assessment of the father

1. The father clearly feels vilified by the accusations against him.  Whether that feeling is justified cannot be determined here.  Nonetheless, he seemed to believe that the current proceedings would entirely vindicate him; his preparation for the case (including, for example, the creation of several documents detailing inconsistencies in statements of the child Y and the mother between the committal hearing and the special hearing, which will be discussed further below) and indeed his appearance in the witness box manifested this misguided notion.  Unfortunately, his crusading came across as obstructive; instead of directly answering questions, the father often provided excuses and was non-responsive until pressed, at other times he responded tangentially in a  self-serving manner.

2. The father had a tendency to focus selectively on evidence which suited his purposes.  For example, he consistently referred to the O report and supervisor[25] as supporting his propositions but refused to acknowledge that the report is also critical of him at times and  complimentary to the mother.  

   [25] Exhibit 6.

3. The father meticulously compiled documents which he asserted highlighted detailed inconsistencies between the evidence given by the mother and Y, both in their own accounts at different times and between one another’s evidence.[26]    The father’s detailed preparation of his case is to his credit.  However, as explained to the parties during the trial, these documents are not actually evidence in this trial.  The father’s documented alleged inconsistencies  were given exhibit numbers during the trial for identification only.  Whether the inconsistencies alleged were in fact inconsistencies, and what those inconsistencies went to proving, were a matter for argument.

   [26] Exhibit 1, Exhibit 4, Exhibit 5.

4. Many of the inconsistencies relied on by the father in these documents are, in my view, insignificant. An example relied upon by the father, is the fact that Y when asked about the title of the book she had been reading when the incident happened in her bedroom, gave evidence that she was reading a Tarzan book.  Y said this during the special hearing, and during the VARE interview.  However the father pointed to notes of the police informant which recorded “Beauty & Beast, Aladdin, Hercules”.  Without explanation of the notes of the informant, this may not be an inconsistency but even if it is, I do not regard it as significant. Submissions about inconsistencies which concerned counsel for the Independent Children’s Lawyer are discussed later.

5. Less complimentary to the father is the way in which he consistently attempted to represent the child Y as a liar and manipulator.  As has been illustrated in the discussion of the father’s evidence above, he could not provide any examples that did not have relatively benign explanations.  Y was only 12 years old when the allegations were made and, even if it were accepted as the father deposed,[27] that she was “very mature for her age”, she was nevertheless the child in their relationship.  This aspect of the father’s case did not reflect well on him. 

   [27] Affidavit of the father filed 29 October 2014 at [4(j)].

6. In addition, the instance of the father “taking responsibility” for his actions was ultimately a denial of responsibility.  Most notable is the father’s expression of regret for making the hurtful and rejecting comments to Y during the first period of the parents’ separation.  Both in his affidavit filed 29 October 2014 (at [18(b)]) and during cross-examination, the regret was qualified by the suggestion that the mother was responsible for causing him to make the remark.

7. In cross-examination, the father was generally not prepared to make any concessions unless confronted directly with material which contradicted his assertions.  Despite having read the O report,[28] the father was not prepared to accept that the child W had been upset on a number of occasions because of the attendance of the father’s new partner and her children.  In cross-examination, he was not prepared to agree with any of the references in that report, about W’s distress.  The father lacked insight into the reasons why W might be upset about the father’s new partner.  He remained fixed in his notions that the children should adjust to his arrangements.  He appeared inflexible and was not child-focused. 

   [28] Exhibit M1 p 9 [3]

8. A further example is that the father was not prepared to concede that the mother had been prepared to encourage the children’s relationship with him.  This was despite his concession that the children had provided him with many homemade gifts for Christmas, Easter and on Fathers’ Days since separation.  Cross-examined by the mother as to the reason why the mother would spend time making gifts for him with the children, he responded “because the kids would have pestered you”.

9. The father insisted that the mother had failed to facilitate the time that he had spent with the children over a period of almost two years because the children had been absent on two occasions and he believed that a medical certificate was not provided for one of those occasions.  Despite references in the O report to the children travelling on two buses in order to spend time with him, the father was not prepared to accept this might be a reason for any difficulties.  He reluctantly conceded that the mother had agreed to him spending “make up time” with the children when there had been delays caused by bus timetable problems.  Until pressed, he was not prepared to accept that the mother communicated with the supervisor about travelling delays and that this information was provided to him whenever there was an issue.

10. The father argued that the mother does not facilitate his relationship with the children and takes every opportunity to undermine that relationship. However, he conceded in cross-examination that between November 2012 when the supervised visits commenced and November 2014 when the Family Court trial commenced, the children had only missed two of the allocated visits. He also admitted that when visits had to be rescheduled due to the O supervisor’s other commitments, the children had always attended the rescheduled visits.

11. The father also alleged that the mother does what she can to make his visits with the children as unpleasant as possible, giving the example that she restricts what the children can eat and do during his time. During cross-examination, the mother put to the father that two of the children suffer from travel sickness and that any restrictions she suggests to the O supervisor at changeover are intended to avoid them being ill on the journey home, which takes more than an hour on very bumpy roads. The father refused to acknowledge this possibility, insisting that the children had never suffered from travel sickness while he lived with them. He stated that for children to suffer from travel sickness more than 50 per cent of the time was just not believable and argued that if it is the case, then it is probably due to what the mother is feeding the children.

1. The father has not demonstrated the same commitment to facilitating the relationship with the mother, having regard to what he has told the children about their “new mother” or words to that effect referring to his partner of just over 12 months.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The orders I propose to make, which reflect the proposals of the mother, will not significantly change the children’s circumstances save that they will allow for an additional two hours of time with the father.

Section 60CC(3)(e): the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Because the risk to the children is unacceptable, supervision is required.  Any orders for supervision, as proposed by the mother, would impose an expense on the father if supervision is required by an agency.   I am not satisfied that the paternal grandparents alone would offer sufficient protection for the children having regard to the paternal grandmother’s response to the allegations and her alliance with the father and his new partner. There was no evidence from the paternal grandfather.  Accordingly, any time between the father and the children is required to be supervised by an agency.  Whilst no submissions were made specifically about this expense or practical difficulty, I have carefully considered any expense involved and note that the present arrangements have involved supervision by an agency for a considerable period of time.

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

1. I have serious reservations about the father’s capacity to provide for the emotional needs of the children.  A clear example was his introduction of his new partner to the children as their “new mother” or words to that effect.  Despite the fact that his own mother has subsequently discussed the inappropriateness of this remark with him, he was reluctant to concede this in the trial and in the reports from the supervising agency.

2. In contrast the mother has sensitively managed an extremely difficult separation, at all times placing the children’s needs above her own.  Her conduct during the trial was an outstanding example of her capacity to bring rationality and courtesy to a harrowing experience in emotional circumstances.  Her attitude and response towards the father’s case that she had brought about the making of false allegations by Y in order to end the marriage, was remarkable.  Despite the overwhelming evidence that but for the allegations made by Y, the mother did not intend to end the relationship or that she had anything to gain from the end of the relationship, the father persisted in this theory.

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

1. The mother has demonstrated an extremely responsible attitude towards the children and parenthood in difficult circumstances.  She has financially supported the children.

2. The father has deposed that he has paid minimal child support because he lost his job “as a direct result of the charges” and because he was being counselled for about one year.  He deposed that he intends to pay child support as soon as he starts earning a regular income.

3. The father has demonstrated a commitment to spending time with his children in difficult circumstances.  With the exception of the circumstances of my finding of unacceptable risk, in reaching my conclusions I have not placed any weight on any suggestion that the father is not a responsible parent.

Sections 60CC(3)(j): any family violence involving the child or a member of the child’s family

1. There is no finding of any family violence involving the children or Y.

Sections 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person 

1. There is an intervention order which has been made by consent between the parties.  I do not draw any adverse inferences against the father from the making of this order because it was made by consent without admission of the allegations as to the need for the order.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The orders made here will not necessarily lead to finality for the parties because where allegations of this type are made and criminal proceedings are discontinued there will always remain unanswered questions.

2. In particular, the father will continue to feel aggrieved by the process and there is a ripple effect brought upon the entire family and extended family.

3. Having had the opportunity to observe the mother, I am satisfied that she possesses the sensitivity and sense of balance to fairly approach the task of managing the future arrangements for the children to spend supervised time with the father.  Hopefully with the assistance of professional advice, the mother will manage the inevitable issues which will arise for the children in their relationship with the father as they mature. 

4. There is a real issue about the viability of long-term and indefinite supervision which the mother conceded.  The mother’s concession about this is recorded in these reasons.  There were no submissions or proposals made about the long term viability of supervision.  To make no provision for the future other than ongoing supervision will inevitably lead to further proceedings which would not be in the best interests of the children.

5. Accordingly I have addressed this issue in my conclusion.

Section 60CC(4) and (4A)

1. Section 60CC(4) and (4A) of the Act applied at the time these proceedings commenced but have since been repealed. I have considered the extent to which each of the parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children and to communicating and spending time with the children. The father’s role in decision-making, communicating and spending time with children has been severely limited because of the criminal proceedings. I have rejected the father’s assertion that the mother has failed to facilitate him spending time with the children or communicating with them for the reasons previously outlined.

2. The mother has fulfilled her obligation to maintain the children in difficult circumstances.  As previously noted, there was little evidence about the father having contributed to the financial support of the children since separation.  I accept the evidence of the father that there have been repercussions for him in his employment as a result of the criminal charges and that this has affected his capacity for work.

3. I have taken into account the circumstances which have occurred since separation as previously outlined.

The presumption of equal shared parental responsibility

1. Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. Section 61DA of the Act provides that I must apply a presumption that it is in the best interests of the children that the parties have equal shared parental responsibility. There is no suggestion of family violence and I have made no finding that the father abused Y or any of the children.

3. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.  It is on this basis that I find that the presumption has been rebutted on all the evidence which satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.

4. The family consultant recommended that in the event of a finding that there was an unacceptable risk to the children in the care of the father, that the mother have sole parental responsibility for the children.  She also recommended that in the event of such a finding, any time the father spends with the children would require formal supervision and this time should entail a period of no less than two hours each alternate Saturday at the home of the paternal grandparents or as agreed between the parties.

5. I am satisfied that the presumption is rebutted by evidence that it is not in the children’s best interests for the parties to have equal shared parental responsibility.  I have found that the father is an unacceptable risk to the children on the basis of all of the evidence in the trial.  After the complaint made by Y to the mother there have been protracted criminal proceedings which included a committal proceeding in the Magistrates’ Court and two days of cross-examination by way of the special hearing in the County Court.  Despite the discontinuance of the prosecution of the father, Y has continued to maintain the truth of her allegations and has not retracted her account.

6. It became abundantly clear during the course of the trial that both the father,

   
   

   his partner and the paternal grandmother blame Y for the breakdown of the relationship between the parties and the restriction on the father’s time spent with the children.  It is apparent that the attitude towards Y is one of hostility.  This attitude towards Y is unlikely to abate following the conclusion of the trial.  The children are living with the mother and Y.  Any negative interaction between the father, Ms T, the paternal grandmother and Y, in all likelihood, will have a deleterious impact upon the children.  The risk of this occurring is inevitable but more likely, for example, when the entire family is involved in school activities or sporting events.

7. I accept the evidence of the mother that she would find it extremely difficult to consult with the father concerning issues relating to the children in these circumstances.  She was not confident that the use of email would resolve disputes.  This is not unreasonable having regard to the strength of the mother’s conviction that Y’s allegations are truthful.  The mother has been involved from the outset with Y’s account of the conduct of the father and the extended criminal legal process which ensued.  The mother has had the opportunity of observing Y’s interview with police, reading the transcript of her cross-examination in the County Court and viewing the police interview of the husband.  None of these things have given her cause to doubt the veracity of Y’s allegations.

8. As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with their mother and father. I am at liberty to determine directly which parenting orders are in the best interests of the children.

Conclusion

1. This is a finely balanced case where the focus has been on the allegations made by Y but the best interests of the children are paramount.  The dilemma is that the allegations are very serious, have not been retracted and were made by a 12 year old.  On the other hand the ramifications for the children of spending limited time with the father are significant.  Taking into account the difficult finely balanced facts, I have found that there is an unacceptable risk to the children in the unsupervised care of the father.  I am satisfied that it is in the best interests of the children to err on the side of caution by requiring supervision when the children spend time with the father.

2. I am not satisfied that any steps which might be taken to reduce the risk such as living with a protective adult or subjecting the children to ongoing counselling would be in the children’s best interests having regard to all the evidence before me. 

3. On the available evidence, I am not satisfied that there is a protective adult to support the father’s case and I have referred previously to the inadequacies of Ms T.  I reject the paternal grandmother as a supervisor or protective person having regard to her alliance with the father.  There was no evidence from the paternal grandfather.   I am satisfied that at the present time it is in the best interests of the children for the father to spend supervised time with the children in accordance with the arrangements which are already in place but have allowed for an extra two hours each alternate Saturday.  Properly conceded by the mother, this cannot go on forever.

4. Regrettably no party put a proposal regarding the long term future for the father spending supervised time with the children.  Doing the best I can and taking into account the evidence about the counselling undertaken by J and W, I consider it in the best interests of the children to make provision for the father’s time with the children to be supervised until such time as W reaches the age of twelve. The children are likely to be protective of each other.  In these circumstances, of necessity, my determination of an appropriate age is somewhat arbitrary but the alternative would be ongoing supervision which, in all probability, is not viable.  To allow for the unforeseeable vicissitudes of life, I have provided for the supervision to cease at an earlier time if the parties agree in writing.

5. For the reasons previously outlined and on the recommendation of the family consultant, I consider it in the best interests of the children that the mother be vested with sole parental responsibility.

6. The father sought that if he was unsuccessful in his proposals, that the paternal grandparents spend time with the children in accordance with the arrangements which had been consented to in interim orders.  Because the paternal grandparents were not a party to the proceedings and made no application in their own right to spend time with the children, it is inappropriate for any such orders to be made.  There is no reason why the paternal grandparents cannot spend time with the children when the father is spending time with them as they have done in the past.

7. Counsel for the Independent Children’s Lawyer proposed that the children have counselling at school.  There was evidence from the mother and the family consultant that W might be assisted by counselling.  I accept the mother’s evidence that she was in the process of arranging that counselling.  There is no evidence that the children, other than W, are in need of counselling but I am confident that the mother will address this if necessary having regard to her attention to the children’s needs in the past. Accordingly I find that there is no necessity for such an order to be made.

8. The parents agreed to a proposal of Counsel for the Independent Children’s Lawyer that there be mutual non-denigration orders made, but there is no evidence of the need for such orders.   I consider that such orders are difficult to enforce and might only invite further litigation and conflict in this complex situation.  It is important to bring an end to litigation.  Accordingly I find that there is no necessity for such orders to be made.  

I certify that the preceding five hundred and three (503) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 1 June 2015.

Associate:  

Date:  1 June 2015

ANNEXURE A

Documents relied upon by the applicant father:

·Amended Initiating Application filed 7 March 2014, amended further to reflect his final orders sought in his Case Outline of 8 September 2014;

·Affidavit of the father filed 29 October 2014;

·Affidavit of Ms T filed 26 August 2014;

·Affidavit of Ms L filed 26 August 2014;

·Affidavit of single expert witness Dr E filed 28 April 2014;

·Affidavit of Associate Professor D affirmed 24 June 2012 annexed to affidavit of the father filed 29 October 2014; and

·Report from O Community Services dated 2 November 2014.

Documents relied upon by the respondent mother:

·Amended Response to Amended Initiating Application filed 25 March 2014;

·Case outline of the mother filed 10 September 2014;

·Affidavit of the mother sworn 9 September 2014; and

·Affidavit of Ms B sworn 1 November 2012.

Documents relied upon by the Independent Children’s Lawyer

·Summary of Issues in Dispute filed 4 April 2014

·Family Report dated 6 August 2014