LAVERY & LAVERY

[2012] FamCA 126

FAMILY COURT OF AUSTRALIA

LAVERY & LAVERY [2012] FamCA 126

FAMILY LAW - CHILDREN – best interests – the nature of the children’s time with the father

FAMILY LAW - CHILD ABUSE – allegation of sexual abuse – finding of unacceptable risk

FAMILY LAW - ORDERS – that the father’s time with the children be supervised

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

M & M (1988) 166 CLR 69
In the Marriage of B & B (1993) FLC 92-357
Donaghey & Donaghey (2011) 45 Fam LR 183
N & S & the Separate Representative (1996) FLC 92-655
Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holding Pty Ltd and Others (1992) 110 ALR 449
W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-325
O’Keefe & O’Keefe [2009] FamCA 382
LC & TC (1998) FLC 92-803
Browne v Dunn (1893) 6 R 67
In the marriage of Rice & Asplund [1979] FLC 90-725

APPLICANT: Ms Lavery

RESPONDENT: Mr Lavery

INDEPENDENT CHILDREN’S LAWYER: Rigoli Lawyers

FILE NUMBER: MLC 9723 of 2009

DATE DELIVERED: 16 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 December 2011 – 22 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gates

SOLICITOR FOR THE APPLICANT: Rigoli Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Swart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

IT IS ORDERED THAT

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the children C LAVERY (“C”) born … March 2008 and L LAVERY (“L”) born … March 2009, subject to the orders below.

3. The said children live with the mother.

4. The children spend time with the father as follows:

   (a)       from 9.00am to 5.00pm each Saturday;

   (b)from 9:00am until 2:00pm on Christmas Day in 2012 and each alternate year thereafter and from 2:00pm until 7:00pm in 2013 and each alternate year thereafter;

   (c)for a period of 3 hours on each of the children’s birthdays and the father’s birthday as agreed between the parties and failing agreement from 3:00pm until 6:00pm;

   (d)on Father’s Day from 10.00am until 5.30pm; and

   (e)as otherwise agreed in writing between the parties.

5. Changeover pursuant to paragraph 4 hereof take place at W Contact Centre, with the cost to be shared equally, and when that service is not available, at the Suburb V McDonalds Restaurant, or otherwise as may be agreed in writing between the parties.

6. Within 14 days from the date of these orders, the mother and father make application to W Contact Centre for changeover assistance in accordance with paragraph 5 of these orders.

7. The mother may notify the father 14 days in advance and suspend time as follows:

   (a)       on one Saturday each school term holiday period; and

   (b)for two Saturdays (not being Christmas time days) in the summer school holiday period.

8. The children’s time with the father is to be supervised by any of the following:

   (a)       the father’s partner Ms E;

   (b)       the father’s sister Ms A;

   (c)       the paternal grandmother Ms G; or

   (d)       such other person as may be agreed in writing between the parties.

9. The father be restrained from consuming illicit drugs or alcohol for 24 hours prior to or during his time with the children.

10. That save and except in the case of an emergency the mother provide the father with not less than 7 days notice in writing of any therapy or counselling proposed for C and L or either of them.

11. The mother be entitled to enrol the children in kindergarten and school and notify the father of any proposed change of kindergarten or school and details of same 30 days in advance save that the mother not be required to provide the father with the address or any information identifying the children’s kindergarten.

12. The father be entitled to receive all school notices, letters, reports and photographs at his request and expense by arrangement with the school and that the mother provide the father with copies of notices and reports from the children’s kindergarten save that she be permitted to block out or delete any information that would identify the address of the kindergarten.

13. That the father and the mother be restrained from changing the children’s names and from allowing them to be known at school and in their other activities and records by any family name other than LAVERY without having first obtained an order of this Court or with the consent in writing of the other party.

14. Each parent notify the other of any serious illness, accident or hospitalisation of the children and provide details of the treating medical professionals and each parent be entitled to communicate with the treating medical professional.

15. Each parent notify the other of his or her contact details for email and telephone and forthwith provide details of any change of email address or contact details and that each party establish and maintain an email address for the purposes of giving effect to this order.

16. Not less than 60 days prior to any proposed overseas travel the mother provide the father with a detailed itinerary of the proposed travel including proof of return flights and telephone numbers and times at which the children can be contacted by the father during that period of overseas travel.

17. That upon L attaining the age of 5 years and not more than 3 months after he has done so or such earlier date as may be agreed the father and the mother make and attend an appointment at Relationships Australia for the purposes of discussing the necessity for ongoing supervision of the father’s time with the children and that a copy of these reasons for judgment be made available to Relationships Australia prior to the parties’ attendance at the appointment.

18. The mother and father be restrained from:

    (a)discussing any aspect of these proceedings in the presence or hearing of the children or permitting others to do so; and

    (b)denigrating one another in the presence or hearing of the children or permitting others to do so.

19. The Independent Children’s Lawyer forward a sealed copy of these orders together with these reasons for judgment to the appropriate Officer at the Department of Human Services.

20. All extant applications be otherwise dismissed.

21. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9723 of 2009

Mr Lavery

Applicant

And

Ms Lavery

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. C was born in March 2008 and is now three, almost four, years of age and her brother L was born in March 2009 and is now two, almost three, years of age.

2. C and L have a half sister T LAVERY (“T”) who was born on 6 April 2006. T will be six in April.

3. The mother, Ms Lavery, and the father, Mr Lavery, moved into shared accommodation in March 2006, a matter of weeks before T’s birth and commenced a relationship in July 2006. Both the father and the mother describe the father as assuming a parental role with respect to T from birth. In the course of cross-examination the mother described the father as “treating her [T] as if she was his.”

4. The father and the mother became engaged in October 2006 and were married in August 2007. They separated on the first occasion on 17 May 2008, a matter of months after C’s birth. They reconciled in mid August 2008 separating finally on 8 October 2008 when the mother was approximately five months pregnant with L.

5. The circumstances at or about the time of  the first and the final separation assumed some significance in the course of the hearing as both the father and mother made allegations about the behaviour of the other which they say is relevant to the matters I am required to determine. I will refer to those circumstances later in these reasons.

6. Following the first separation the mother moved with both T and C to the unit at her mother’s home. The father would visit T and C at her mother’s home, she said on a weekly basis. It is clear that during this period the parties resumed their relationship reconciling in or about August 2008 when the mother was approximately two months pregnant with L. The mother gave evidence that T missed the father during this period of separation and was happy to be with the father when they reconciled.

7. The parties separated finally in early October 2008. The mother remained in the former matrimonial home until early November when, following the incident when she said the father assaulted T in the bath, she once again moved to her mother’s home.

8. In late December 2008 the mother moved with T and C to a Crisis Centre in Suburb Q. The mother stayed at the Crisis Centre for three months before moving to transitional accommodation in Suburb Y while she awaited the outcome of her application to the Ministry of Housing for permanent accommodation. Initially the mother’s evidence was that until March 2009, when she moved to rented accommodation in Suburb Y, the father visited the children at the crisis accommodation on a “few occasions” however during cross-examination she gave evidence that the father first started spending time with T and C overnight when she was living at her mother’s home. Whilst the mother’s evidence was somewhat uncertain, it was clear that by the time L was born the father was regularly spending time with both T and C from after work on Friday until Sunday night before dinner each alternate weekend. The first time the father spent time with L other than at the mother’s home was on the weekend after the Queen’s Birthday weekend when he took all three children to his parents’ farm. In July 2009 the mother, who as a child was herself a victim of sexual abuse, made arrangements with the father to care for all three children for a week to enable her to take a Victims of Crime funded holiday in Indonesia. The mother’s evidence was that at this time she trusted the father to care for all three children notwithstanding that L was only a few months old at that time.  

9. The mother obtained an interim intervention order following an incident on 17 July 2009 during which she deposed that the father “physically attempted to intimidate” her and threatened to “smash” her. The father deposed that he was assaulted by the mother.  Following this incident the voluntary arrangements the father and mother had made for the children to spend time with the father broke down as a result of which, on 29 October 2009, the father issued an application in the Federal Magistrates Court of Australia seeking orders for equal shared parental responsibility, and that all three children live with the mother and that they spend time with the father each alternate weekend and on specified special occasions.

10. On 7 December 2009 Federal Magistrate Hughes made orders by consent in the Federal Magistrates Court of Australia which inter alia provided that all three children spend time with the father from 5:30pm Friday to 5.30pm Sunday. The matter was otherwise listed for final hearing on 14 May 2010.

11. Following an incident at the childcare centre on 7 April 2010, when T was observed by a child care worker exposing her genitals to two other children at the centre, the mother contacted Ms O, who was treating T at that time, and on her advice reported the matter to the Department of Human Services (“DHS”).

12. The mother’s evidence was that on 15 April 2010 T made allegations of sexual abuse by the father. The following day the mother again contacted Ms O and her solicitor and on 22 April 2010 T was interviewed by Footscray SOCAU. On the advice of both her solicitor and DHS, the mother unilaterally suspended the father’s time with all three children.

13. On 13 May 2010 Federal Magistrate Hughes transferred the matter to this Court for inclusion in the Magellan list of cases. It is these allegations of sexual abuse of T that are central to this case and to the question of what, if any, time the father should spend with C and L.

14. Orders were made on 21 July 2010 which provided for the father to spend supervised time with C and L.

15. The allegation of sexual abuse by the father made by T, as reported by the mother, was the first of a number of allegations made by T to the mother, to family and friends and to various professionals from whom she was receiving therapeutic assistance. Following a further incident on 30 December 2010 and T’s further statements to the mother and Ms CC, a member of the congregation of the mother’s church, the mother again suspended the father’s time with the children because of her concerns that the children were not being adequately supervised and T was interviewed again by Footscray SOCAU on 13 January 2011. T did not make any disclosures during the course of either of her interviews at Footscray SOCAU.

16. The allegations of the sexual abuse of T and C are extremely serious and have been the focus of both the evidence and final submissions of the parties, however they are only a part of the complicated history of these parties, their relationship and its impact upon all three children. This includes allegations of sexual abuse of the mother by the father, competing allegations of both physical and verbal abuse, allegations of drug and alcohol abuse and a long history of conflict to which the children were exposed both during the relationship and after separation.  

17. All of these are issues that require careful consideration in determining what is in the best interests of these children and what orders should be made with respect to C and L.

BACKGROUND
The Father

1. The father Mr Lavery was born in 1982 and is 29 years of age. He is in a relationship with Ms E. He and Ms E live in a bungalow on the property owned by his parents at Town EV.

2. The father is employed as a tradesman earning approximately $800 net per week. Ms E is employed and studying for a diploma in her field.

The Mother

1. The mother Ms Lavery was born in 1986 and is 25 years of age.

2. The mother commenced a new relationship during 2011 and is due to give birth to a child with her new partner in April 2012.  They have no immediate plans to live together. Mr SE, the mother’s new partner, is not an Australian resident and it is her evidence that he is currently required to work in rural Australia before he can obtain the necessary visa which would allow him to take up residence with the mother.

3. The mother is engaged in home duties and is a part time student studying for a diploma in counselling. She lives in rented accommodation with the three children.

4. The mother is herself a victim of sexual abuse. She told Ms H, the Family Report writer, that she was sexually abused by her brother in law between the age of seven and 16 and that he was tried and convicted for that abuse. It was her evidence that the reason she and the children moved to the crisis centre in Suburb Q was because of his impending release. She deposed to being first diagnosed with post traumatic stress disorder in 2002 and again in 2010.

5. Since separation the mother has sought and received support from a wide range of support services to deal with childhood issues of neglect and abuse, the sexual, verbal and physical abuse by the father during the relationship and general family matters including parenting and financial issues. The mother is also involved her church, attending church on a regular basis and receiving ongoing support from the pastor and other members of the congregation.

6. She continues to receive assistance from her psychologist, her general practitioner, and a pregnancy support worker through a community health service and has been allocated to a family support worker. The mother also receives support from her father and step mother in Queensland and the members of the congregation at the church she and the children attend.

7. T receives assistance with literacy and numeracy and her interaction with other children. It is reported by the mother that her behaviour fluctuates.  She has continued to attend appointments at CAHMS and it has been recommended that she be referred to a school psychologist. She also has a paediatrician who is carrying out further assessments.

T

1. T’s biological father is Mr K. The mother was not in a relationship with Mr K at the time of T’s birth. T’s surname was changed from the mother’s maiden name to Lavery with Mr K’s consent in February 2008.  Mr K’s contact with T following her birth was sporadic. He would spend time with T either with the mother present or at his mother’s home. T did not spend any time with Mr K on his own until Easter 2008. Sometime between May and August T stayed overnight with Mr K for the first time and was reported to have had some difficulty separating from the mother. After that overnight stay, Mr K continued to see T either at the mother’s home or at his mother’s home, however there was no regular arrangement. The mother had concerns about the effect of the inconsistency of Mr K’s involvement with T and, prior to Christmas 2010, on the advice of his mother, Mr K decided that as he could not maintain a consistent relationship with T he would not see her at all. He did give T a Christmas present that year which was delivered by his mother, but did not contact T on her birthday and has not had contact with T since making that decision. The mother described T as being curious about why Mr K does not want to see her and her evidence was that T had asked “doesn’t he like me”.

Documents Relied Upon

1. On 12 August 2011, Registrar Mestrovic ordered inter alia that for the purposes of the trial proceedings and for the purposes of filing affidavit material and orders sought the mother be treated as the applicant.

2. The mother relied upon the following affidavits and witnesses:

   ·Her case summary filed 14 December 2011

   ·Her further amended response filed 22 November 2011

   ·Her trial affidavit filed 11 January 2011

   ·Her affidavit filed 30 September 2011

   ·Her affidavit filed 31 May 2010

   ·Affidavit of Ms Z filed 30 September 2011 (not required for cross-examination)

   ·Affidavit of Ms MM filed 27 July 2010 (not required for cross-examination)

   ·Affidavit of Ms OO filed 12 January 2011 (not required for cross-examination)

   ·Affidavit of Ms CC filed 13 January 2011 (not required for cross-examination)

3. The father relied upon the following documents:

   ·His amended application filed 22 November 2011

   ·His affidavit filed 22 November 2011

   ·Affidavit of Ms E filed 22 November 2011

   ·Affidavit of Ms A filed 22 November 2011   

   ·Affidavit of Ms E filed 28 June 2010

   ·Affidavit of EE filed 5 July 2011

4. The Independent Children’s Lawyer (the “ICL”) relied upon the following affidavits and witnesses:

   ·The Case Outline and Summary of Argument filed 9 December 2011

   ·The Family Report of Ms H dated 24 September 2010

   ·The Family Report of Ms H dated 21 October 2011

   ·Affidavit of Ms R filed 7 February 2011

   ·Affidavit of Ms LL filed 22 November 2011

   ·Affidavit of Ms O filed 29 November 2011

   ·S91B Department of Human Services Report dated 25 June 2011

   ·Evidence of Ms B and exhibits

   ·The affidavit of Dr S filed 30 September 2011 annexing her Report dated 21 March 2011 and the further Report dated 14 April 2011 (exhibit “ICL-5”)

1. Although the affidavit of Dr S was filed by the mother she was called by the ICL as her witness.

The Proposals

1. At the conclusion of the proceedings I was provided with two sets of proposed orders by the ICL dependent upon my findings as to risk. It was the ICL’s submission that it was open to me to find that T had been sexually abused and that the father was the perpetrator. It was further submitted that I should find that the risk of the children spending unsupervised time with the father would be unacceptable and that in summary I should make orders that the children spend supervised time with the father in summary as follows:

   (a)       each Saturday from 10am until 6pm;

   (b)from 9am until 2pm Christmas day in 2011 and each alternate year thereafter and 2pm until 7pm in 2012 and each alternate year thereafter;

   (c)for a period of  3 hours on each of the children’s birthdays and the father’s birthday as agreed and failing agreement from 3pm to 6pm;

   (d)       on Father’s day from 10am until 5.30pm; and

   (e)       as otherwise agreed.

2. It was the ICL’s submission that the children’s time with the father be supervised by the father’s partner Ms E; the father’s sister Ms A, the father’s mother Ms G, or such other person as may be agreed. She proposed that changeover take place at the W Contact Centre, with the costs to be shared equally and, in the event of the contact centre not being available, at Suburb V McDonalds. She also proposed that the mother be restrained from bringing T into the restaurant area during the changeover.

3. The ICL proposed that the mother have sole responsibility for the children subject to certain conditions which included orders restraining the mother from changing the children’s names without either the consent in writing of the father or order of this Court. Although it was not the subject of any evidence the possibility of overseas travel and the need for orders with respect to the issue of passports for the children was also raised by Mr Gates on behalf of the mother and addressed by way of submissions by Miss Swart on behalf of the ICL. It was ultimately agreed by the parties that the mother would be permitted to obtain passports for the children subject to an order that she provide the husband with an itinerary for any proposed overseas travel 60 days prior to that travel.    

4. The mother’s case was opened on the basis of two alternative sets of orders depending upon whether or not the Court made a finding of unacceptable risk. 

5. However in final submissions the mother’s primary position was that it was open to me to find, and that I should find, that T had been sexually abused by the father and that his time with the children should be reserved save and except that he be permitted to send them cards and gifts. In the event that I were to determine that the children should spend time with the father, the mother adopted the proposals of the ICL in general terms, save and except as follows:

   ·In the event of the parties reaching any agreement to vary the arrangements for the father to spend time with the children that agreement should be in writing;

   ·I should not make orders restraining the mother from bringing T to changeover;

   ·That rather than restrain the mother from changing the children’s names I should order that in the event of the mother wanting to change the children’s names she make an application to the Court; and

   ·That the mother should be required to disclose her address and keep the father informed of any change to her address or that she be required to disclose details of the kindergarten the children are attending.

6. The father’s primary position was that the time he spends with the children should not be supervised however he also submitted that, in the event that I made orders requiring supervision, he was happy with the orders proposed by the ICL. 

Legal Principles

1. The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) relating to children are set out in s60B(1) of the Act as follows:

   The objects of this Part are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying those objects are outlined in s60B(2). They are that unless it would be contrary to the best interests of a child:

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s60CA). In determining what is in that child or children’s best interests the Court must consider both the primary and additional considerations set out in s60CC(2) and (3) of the Act. The analysis of those statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.

4. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s61DA). The presumption is rebuttable if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility.

5. When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests to spend equal time with the parents (s65DAA(1)) and if not, whether it is in the best interests of the child to spend “substantial and significant time” with each of the parents (s65DAA(2)).

6. The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the child’s best interests and to make orders that will best promote that child’s best interests. This was clearly stated by the High Court in M & M (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ (at 76) as follows:

   Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance of or rejection of the allegation of sexual abuse on the balance of probabilities.

Unacceptable Risk

1. In In the Marriage of B & B (1993) FLC 92-357 the Full Court referred to the principles to be applied in cases involving allegations of sexual abuse and said (at 79,778) as follows:

   The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is: “that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

2. The ‘unacceptable risk’ test is therefore the standard used by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”(M & M (1988) 166 CLR 69, 78). In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in allowing access outweighs the possible benefit to them from that access.

3. Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M & M at 77 that: “In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”.

4. Thus a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered.

   It should be noted that the M & M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary” (M & M at 76–77). The overriding consideration in all custody and access decisions is the welfare of the child.

5. As referred to by Murphy J in Donaghey & Donaghey (2011) 45 Fam LR 183, at 189, the inclusion in the Act of the primary consideration that children be protected from harm does not alter the position enunciated by the High Court in M & M.

6. In N & S & the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714 Fogarty J, examining what is meant by “unacceptable risk,” said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

The Evidence

1. The relevant standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may taking 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.

2. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 Dixon J said as follows:

   Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The 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.

3. In Neat Holdings Pty Ltd v Karajan Holding Pty Ltd and Others (1992) 110 ALR 449 at 449–450 (citations omitted) the High Court said as follows:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of society do not ordinarily engage ion fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

4. It follows, given the serious implications of a finding that sexual abuse has occurred, that the Court should not make a finding that it has occurred unless satisfied to the highest standard.

5. I have considered all of the evidence and had the benefit of observing the appearance and the demeanour of the father, mother and those witnesses who were required for cross-examination. I make my findings having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

THE EVIDENCE
The Father

1. The father presented as a simple man, somewhat perplexed and dismayed by the allegations made against him and how he could meet or defend himself against those allegations. As each day passed and the professional witnesses gave their evidence and were cross–examined he appeared increasingly weighed down by that evidence.

2. He did however present as a loving and caring father who was desperate to spend time with his children, and whilst he denied that he had sexually abused T he was prepared to accept supervision of his time with C and L if I determined that to be in the their best interests.

3. There was nothing about his general demeanour, either in his conduct of the case, or in the course of his evidence, that would lead to me to conclude that I should not accept his evidence.

4. There was a certain naivety about the husband’s evidence. An obvious explanation for the statements made by T and her sexualised behaviour was that she might have been exposed to pornographic material. It was alleged by the mother that the father not only had pornographic DVDs and magazines but that he had left the DVDs in the DVD player where T might have seen them, and the magazines by the bed, again in circumstances where T might have seen them. Whilst this might have been a reasonably plausible explanation for T’s behaviour and her statements to the various witnesses, the father denied the mother’s allegations. One might anticipate that a less than honest witness might seize upon what might be considered to be an acceptable explanation. The father’s evidence that he had not applied any cream for nappy rash was another example of this.

5. It was submitted by Mr Gates on behalf of the mother that I should view the father’s blanket denials and in particular his denial that he had sexually abused T in the context of his other evidence, and, in particular, what Mr Gates submitted were significant inconsistencies in the father’s evidence and that of his partner Ms E.

6. The father was cross-examined about what were said to be a number of those inconsistencies in his evidence. Having said that his affidavit sworn 22 November 2011 was true and correct, the father then indicated that there were a number of mistakes, and that part of his affidavit was taken from his earlier affidavit, and he had not read it in detail before he had sworn it. These errors included his evidence that he was 28 when in fact he was 29.

7. In paragraph 49 of that same affidavit the husband deposed that he had not seen the children since an incident on Christmas Day 2010.  It was put to him that this was a glaring error, which he readily conceded.

8. It was also submitted that, in so far as the father had not put matters to the mother in cross-examination, I should accept the mother’s evidence. In the case of LC & TC (1998) FLC 92-803 at 85-014 the Full Court held that the rule in Browne v Dunn (1893) 6 R 67 does not apply where the witness is on notice that their version of events is contested. The concept of putting those matters to the mother which he said contradicted her evidence was explained to the father. This is a concept which is not always understood by a litigant in person, and I do not conclude that, in so far as the father did not put each and every matter to the mother, that I should accept her evidence. It was at all times clear that the mother’s version of events was contested by the husband.

The Mother

1. The mother presented as an articulate and forthright young woman concerned for the welfare of her children, albeit somewhat affected by her own life’s experience. Perhaps as a direct result of her own experiences, she also presented as someone who is very reliant on the professionals from whom she receives support and assistance.

2. It is clear from the mother’s evidence that, until her conversation with T in April 2010, she did not associate, or in so far as it was suggested, rejected the suggestion, that T’s sexualised behaviour, which on her own evidence did not occur until L’s birth, was a result of the fact that she had been sexually abused or that the father might be the perpetrator. It was also clear however that, notwithstanding that her case was initially put in the alternative dependant upon my finding as to whether or not there was an unacceptable risk, there is now no room for any doubt in her mind that T has been sexually abused by the father.

3. Having observed the mother giving her evidence, I am satisfied that her belief that the father has sexually abused T is genuinely held.  It does not mean however, as genuine as that belief may be, that T has not, however unwittingly, been influenced by the very strength of that belief. This is a matter that I will address in greater detail later in these reasons.

4. The father, in the course of his evidence, suggested that the mother might have coached T in some way. On the other hand, he did not suggest that T’s sexualised behaviour was fabricated, conceded that the mother accepted what T told her and was from my observations of his evidence appropriately concerned about the allegations and T’s welfare. It was submitted by Mr Gates that the timing of the father’s allegation was somewhat sinister. I do not find it so. From my observations of the father and his evidence this was just another example of the level of anxiety and dismay he felt about the allegations made against him.

5. The mother also gave evidence and made concessions in her evidence which did not necessarily reflect well upon her and which one might not expect of a less than honest witness. One such example was her evidence that she discussed the allegations of abuse in front of the children. Another example was her evidence about the frequent arguments in the children’s presence and in particular her evidence about the incident at McDonald’s on the 13 August 2011.  

Findings as to Credit

1. It was submitted by Mr Gates on behalf of the mother that I should have very grave reservations about the father’s evidence. However this is not a case in which I could make a definitive finding that either the father or the mother is not telling the truth overall. There are a number of significant areas where there evidence is in conflict and there are aspects of their evidence about particular issues which I prefer and other issues and aspects about their evidence about which I have reservations. Where their evidence is in conflict this may be explained, particularly with the passage of time, by their different interpretations of events and their desire to present their case in a particular light, rather than because one of them is deliberately lying.

1. In so far as it is suggested that there were inconsistencies in the husband’s evidence or that of Ms E, I do not consider those inconsistencies to be either forensically significant, nor I am satisfied that they are the result of a deliberate attempt to mislead.

The allegations of sexual assault of the mother

1. The mother alleged that the father “would sexually assault me when I was unable to give informed consent to sexual activity by digitally raping me and penile raping me whilst I was asleep.” The mother gave oral evidence and was cross-examined in relation to these alleged assaults by both the father and the ICL, albeit that the father’s questions were essentially to suggest that the incidents described by the mother had not happened. The incidents alleged by the mother were denied by the father in his affidavit, and in cross-examination he put to the mother that the sexual abuse “never took place”.

2. The evidence given by the mother of these alleged incidents was detailed, including a description of where she was living at the time, what she was wearing, who was in bed first, the father’s actions and both her reaction to his behaviour and his reaction to her complaints about his behaviour. This included her description of having told the father that next time he did something like this she would kick him out of bed, and her evidence that she had in fact done so. She gave evidence that she had complained to her General Practitioner, Dr N, “numerous times” about the father’s behaviour. She annexed to her affidavit a copy of Dr N’s clinical notes dated 29 April 2008 in which he notes under the heading ‘History’: “Husband digitally and penile rapes her weekly while she is asleep”. Whilst the father denied these allegations, on the balance of probabilities I accept the mother’s evidence.

3. Although, as suggested by Mr Gates on behalf of the mother, the father’s conduct is concerning, there is no evidence that would support a finding that the father’s conduct necessarily demonstrates any propensity to engage in the sexual abuse of a child other than the evidence of the Family Report writer Ms H in cross-examination that it would be one aspect of the father’s behaviour that would have to be taken into account in any assessment of the likelihood of the father having sexually abused T or the risk of him sexually abusing either C or L. 

The allegations of drug and alcohol use

1. The mother’s evidence was that she had used recreational drugs, ecstasy, speed and marijuana in her teens, the last time being in 2004. She further deposed to, on occasions, having drunk excessively up until the separation in October 2008.  She deposed that since then she has stopped binge drinking, and became a born again Christian in December 2008. I accept her evidence in that regard.

2. The mother also alleged that the father had used drugs regularly leading up to and during the relationship. It was her evidence that he would “use marijuana a few times a week against my wishes, mostly bongs and occasionally joints”. She also alleged that that she had found a glass pipe in the kitchen cupboard after separation and that, when confronted, the father denied it was his and said that the pipe belonged to one of his friends. She told the Family Report writer that the father’s alcohol and drug use contributed to his “aggressive behaviour in punching holes in walls”.

3. The father admitted having used marijuana occasionally during the relationship. As previously noted, at the time of swearing his affidavit he deposed to having not used marijuana for more than two years, whereas during cross examination his evidence was that it was closer to four years. Whilst his evidence was inconsistent, as his affidavit repeated evidence from his earlier affidavits, I did not consider that inconsistency to be necessarily significant.

4. The mother’s evidence with respect to these allegations was more generalised than her evidence in relation to the allegations of sexual abuse. I am not satisfied on the balance of probabilities that the father last used drugs when he said he did, however I am also not satisfied that his drug use was as excessive or as serious as was asserted by the mother.  I do however find that the father’s drug use was a source of some conflict.

5. There is also no evidence which would support any finding that the father’s drug use either contributed to, or in some way should lead me to conclude that it is more likely that the father sexually abused T or that there is presently an unacceptable risk to C and L as a result of the father’s use of drugs.   

The allegations of family violence and conflict

1. The mother, in her trial affidavit, deposed that the father “repeatedly subjected me to domestic violence…He was verbally and emotionally abusive to me on an almost daily basis.” It was reported by Ms H, the Family Report writer, in her report dated 24 September 2010 that she was unable to interview the father and mother together as the mother asked that “…she not even sight [the father] as she is afraid of him and feels intimidated by him.” The father and mother were interviewed separately for the same reasons for the purposes of the second Family Report.

2. The mother described a number of specific incidents, including the father on two occasions during arguments putting his fist through the walls of the house, damaging the door of an outdoor fridge and the exterior plaster walls of a pergola, on 16 May 2008 repeatedly slamming her head into the door frame of the bedroom door; and on 17 July 2009 the father raising his voice, putting his fist up to her face and threatening to “smash” her. She also described in general terms abusive and intimidating behaviour including yelling and swearing and the father trying to control her and how she disciplined T. Her evidence was that the father amongst other things would, in an aggressive tone, call her a “slut” and tell her “she fucking deserved” the things that had happened in her life.

3. The father denied that he had put his fists through the walls, however he conceded that there had been constant arguments with raised voices and swearing which occurred in the presence of the children.

4. The mother, to her credit, was frank about the part she played in the arguments with the father and what is abundantly clear is that there was an enormous amount of conflict between these parties.

5. The first of a number of incidents which were the focus of much of the evidence in the case was the incident on 16 May 2008, which led to the initial separation. It was common ground that the mother had been out to a night club with friends, leaving T and C at home with the father. It was also common ground that she did not return home until the early hours of the morning. It was the father’s case that he was woken up by C crying and then realised that the mother was not home. He said he had not objected to the mother going out but, as he had to work the following day, had asked the mother to be home in time to give C her early morning bottle. He deposed that the mother was intoxicated when she arrived home and that they started to argue. When he picked C up to settle her he said the mother continued to argue with him, was hysterical and proceeded to scratch him with her finger nails. In her attempt to hit the father he said she hit C before running out in to the street dressed only in a pair of tracksuit pants. The father tendered photos showing scratches to his face and upper body.

6. The mother admitted that she had arrived home in the early hours of the morning but denied that she was intoxicated. It was her case that she found the father sitting on the edge of the bed feeding C and that he appeared to be under the influence of either drugs or alcohol. She deposed that he started yelling at her. She admitted that she had scratched the father but that she did so because he was slamming her head into the bedroom door frame.

7. It is common ground that the police attended and that mother was taken to a police station where she was locked up for four hours and charged with being drunk and disorderly. The mother’s case was that she was hysterical as a result of the father’s assault upon her and not because she was either drunk or under the influence of drugs and that she was ultimately not required to attend court to answer the charges against her.

8. The mother’s evidence was that after leaving the police station she immediately went to a medical centre to take a drug screen and to have her injuries assessed. The mother gave evidence that her head was sore for almost four weeks, however she also conceded in cross examination that there were no visible marks to her head.

9. Another incident which was considered by both parties to be significant was the incident on 17 July 2009. The father had agreed to care for all three children for seven days to enable the mother to travel to Indonesia on a Victims of Crime funded holiday.  She deposed that she could not remember what the conversation was about, but that the father “became aggressive and angrily began raising his voice and swearing at me” and that he then physically attempted to intimidate her by putting his fist up to her face and threatening to “smash” her. Her evidence in cross examination was that the father became upset when she raised an issue to do with his new partner. This allegation was denied by the father who said that the mother hit him twice in the face and scratched him. The mother described T as being upset as a result of once again witnessing them arguing. 

10. Both the father and mother gave evidence that they called the police but that they did not attend. The mother’s evidence was that the father remained outside her house for about an hour and continued to threaten her. The father’s evidence was that he remained outside waiting for the police but denied any inappropriate behaviour towards the mother. The mother also said that she contacted the Women’s Legal Service and her domestic violence worker and that she applied for and obtained an interim intervention order as a result of this incident. The mother said that she did not proceed with her application to obtain a final order because she could not obtain legal aid to do so.

11. There was also an incident on Christmas Day 2010 when the father had made arrangements for C and L to spend Christmas Day with his family. He deposed that the wife verbally abused his partner Ms E calling her a “fat whore” and a “fat slut” and called the father a “drug addict”. When asked about this incident the mother said that she was late and that the father had told her off for being late. She said that Ms E involved herself in the argument.  It was conceded that that incident took place in front of the children. The mother agreed that she got very worked up but that the argument was not one sided. She said she felt bad for the children and later that day she apologised to the father for her behaviour but received no apology from either the father or Ms E.

12. There was a further incident at changeover at McDonalds on 13 August 2011. The father asserted that the mother asked him for the communication book and that when he told her he had forgotten it she became agitated and verbally abused him in front of the children. The mother’s evidence was that she did, amongst other things, accuse the father of being a paedophile and called him a scum bag because of his “smart arse tone”. When asked why the situation got out of hand she said it was like every other argument between them. The husband’s evidence was that he applied for an intervention order on 16 August 2011, a result of this incident.

13. The mother’s evidence in relation to this incident highlighted the strength of her conviction that the father had sexually abused T and her certainty that the children are at risk in his care. She also described how angry it made her to see the father and to have to deliver C and L to him each week not knowing if they would be safe.

14. The photos of the father’s injuries, and the lack of any visible sign of injury to the mother’s head, and fact that the police took the mother to the police station where she was locked up for four hours, lends some weight to the father’s version of the incident which occurred in May 2008, however I cannot say that on the balance of probabilities that I prefer either the father or the mother’s versions of any of those incidents insofar as there is a dispute as to their evidence. What I do find, however, is that there was a significant level of conflict, and that not withstanding that the mother said she was in fear of the father, so much so that she would not be in the same room as him for the purposes of the preparation of the Family Report, she clearly did not go out of her way to avoid arguments or confrontation with the father. To the contrary, the evidence suggests that she could and did on occasions confront him and engage him in a way that would almost inevitably lead to heated arguments.

15. On 5 August 2011 the mother applied to the local Magistrates Court for a further intervention order after the father engaged a private investigator to watch her, which she considered to be a further attempt by the father to intimidate her. On 30 October 2011 the father consented to an intervention order in the mother’s favour without admissions and withdrew his application for an intervention order which he said he could not afford to fight.

Physical abuse of T

1. The mother’s case was that, during the relationship, the father would discipline T inappropriately.  She gave evidence about two particular occasions when she said the father physically abused T. The first of those incidents, which was denied by the father, was alleged to have occurred in early 2007 when T was approximately one year old. The mother described the father losing his temper with T and holding her up and shaking her vigorously. She said he told her he had shaken T because he was sick of her screaming and sooking and wanted to shut her up.

2. The second and perhaps more significant incident was in November 2008,  shortly after the parties separated on a final basis, when the mother alleged that when T was in the bath being treated for head lice she asked the father to assist her. The mother alleged that the father, having lost his temper with T, put his hands around her neck and pushed her down into the bath with great force, screaming and swearing at her and telling her to sit down. It was her evidence that T, who was approximately two and half at the time, was distressed and crying and that it took quite some time to calm her down. The mother also gave evidence that T was still complaining about soreness around the neck area about an hour and a half later. According to the mother there were red marks, but not bruising, and the red marks were gone in about an hour and a half. The mother rang her mother who rang child protection and she was subsequently contacted by DHS who advised her to leave the former matrimonial home, where she was at that time living with the children, and to cease all contact between the father and the children.

3. The father denied the allegations and it was his evidence that he held T down to assist the mother but that there was no great force. He said that he put his hands on her shoulders, not around her neck. His evidence was that there was a short period following this incident that he did not see the children, but that thereafter he resumed spending time with both T and C. This is consistent with the mother’s evidence about when the father commenced overnight time with the children.

4. The mother gave evidence that T still talks about this incident. When asked the words T used, she said that T had said to her just the other day “...do you remember that time when daddy [abbreviation of the father’s first name] put his hands around my neck and strangled me...”   Whilst T may have been upset by this incident, given the fact that the mother readily concedes discussing issues with respect to the children in their presence I am not satisfied that, insofar as she still brings it up, this is because of the degree of trauma she experienced. The way in which T now describes this incident does not in my mind sit comfortably with the fact that she was only two and a half at the time.

5. In my view this incident again highlights the fact that both parties are now interpreting events from their own perspective and in the context of the ongoing litigation.  In this case what I am left with is two versions of the same incident rather than two totally different stories. It is to a large extent a question of what conclusion I draw from that evidence rather than a question of believing or not believing one or other of the parties.

Allegations of sexual abuse of T

1. The very thought that an adult might sexually abuse their own or any other child is abhorrent. Whilst the question of whether or not that abuse occurred is subservient to the determination of what is in that child’s best interests, determining those best interests in the context of risk necessitates a careful analysis of the allegations of abuse, in this case primarily the statements made by T and the allegations and observations of her behaviour. 

First Statement to the Mother

1. The mother’s evidence was that during November 2008 T “developed very aggressive behaviour, wanting to break things, hurting animals, screaming and acting strangely around people”. T was referred to the Hospital 1 Pre-School Development Clinic for an assessment. It was not until early 2009 that the mother was able to obtain appointments for T after which she attended 5–6 sessions. As the mother had moved, T was referred to the Hospital 2 Child & Adolescent Mental Health Unit. In October 2009 the mother moved again and T was referred to the Hospital 1 CAHMS unit at Suburb HH.

2. The mother’s evidence was that in early 2009 T began exhibiting sexualised behaviour including opening her legs and showing her genital area and attempting to insert a toothbrush inside her vagina.  Whilst she considered this behaviour “very odd and disturbing” she said that she knew T was having difficulty coping with the breakdown of the marriage and did not associate T’s behaviour with the father or anything he might have done. There was a history of behavioural problems in the mother’s family and she thought this might explain T’s behaviour. This was despite suggestions made to her by the maternal health nurse during a home visit that T might have been sexually abused.

3. T was originally diagnosed by the Hospital 1 Pre-School Clinic as having a Severe Externalising Behaviour Disorder. T has since been diagnosed by Ms O, a psychologist employed by the Hospital 1 Integrated Mental Health Program based at Suburb HH, as suffering from a Post Traumatic Stress Disorder.

4. Ms MM, the group leader in T’s room at the F Child Care Centre in Suburb V, described T as “displaying at lot of negative interactions with the other children in the room as well as with her caregivers in the room.”

5. She also described walking into the bathroom at the childcare centre on 7 April 2010 where she found T and two boys on the toilet. She described T as “at the toilet with her pants down. One of the boys was bent down with his head and was looking at [T’s] genitals. [T] was exposing herself using both hands to part her genitals for the other child to see. [T] was laughing and smiling…”  Ms MM also deposed that on 12 April 2010 she was approached by a co-worker who told her that during afternoon tea the children were discussing parties and that T told everybody “I’m having a sex party and only boys are invited.”  Ms MM was not required for cross examination by either the father or the ICL.

6. The mother’s evidence about the incident on 7 April 2010 was that when she arrived at the childcare centre to collect T she was handed a note by Ms MM telling her what had occurred approximately half an hour before her arrival. T was standing next to her when she read the note and the mother’s reaction was one of total shock. T was too scared to speak because Ms MM’s first reaction, for which she had apologised, was to yell at T, as a result of which the mother said T was “very clammed up because she thought she was in big trouble”.

1. The mother took T out to the car park where she reluctantly told her what had happened and the mother then told her that she needed to go back into the childcare centre and repeat what she had said to Ms MM.

2. The mother rang Ms O at the Hospital 1 Suburb HH CAMHS Unit from the car park and advised her of the incident at the childcare centre and on her advice informed DHS. The mother’s evidence was that CAMHS advised her to not tell T off and to make her comfortable to talk about it if she wanted to. The mother also spoke to her solicitor.

3. Ms MM, her co-worker as a witness, the mother and T then sat down together and Ms MM told T she needed to repeat what she had told her mother. The mother asserted that T refused to repeat what she had told her because she had been told off and was scared.

4. The mother’s evidence was that, when Ms MM told her what had happened, she knew straight away that something had happened to T, the implication being that she knew T had been sexually abused. That, in her words, “the nurse was right” referred to the fact that the infant welfare nurse had suggested that T’s sexualised behaviour might be the result of her having been sexually abused.

5. The mother and T then went home and the mother rang one of the pastors from her church and asked he and his wife, who is the mother’s mentor, to make a house call. When they arrived, the mother, the pastor and his wife sat down at the table with T and, in the mother’s words, tried to “make sense of it”.

6. The pastor, his wife, and the mother spoke to T for approximately 20 minutes. During that conversation the mother asked T whether J, one of the boys in the toilet with T,  had “touched her Minnie” and she said “yes he did and then he tried to put his doodle in there” and the pastor asked T whether anyone else had ever touched her private parts.  The mother’s evidence was, at first, that T said ‘no,’ which the mother then clarified on the basis that T talked about J and that she did not believe that T understood the distinction between what had happened that day and whether anyone had touched her at any other time. The mother’s evidence was that it was the adults that did the talking as T had clammed up. The mother said that T would, although not often, bring up the incident when J touched her Minnie.

7. When asked whether there were any discussions about what had occurred at the child care centre on 7 April 2010, and 13 April 2010, when T was overheard referring to a “sex party,” the mother acknowledged that she and the kindergarten teacher discussed with T on numerous occasions the need to keep her private parts private to prevent it happening again.

8. The mother’s evidence was that she told the father at handover about the incident at the childcare centre. The children were present at the time or “not far away”. The father looked shocked and asked a few questions including words to the effect “where would she have got that from” to which she replied she didn’t know.

9. It was on either 14 or 15 April 2010 that the mother described what is referred to as the first of T’s disclosures. Whilst putting T to bed she asked the mother “is my Minnie still sore?” meaning, the mother said, is it still red, and wanted the mother to have a look. Her evidence was that at that time this was a regular topic of conversation, as T had had a number of infections which her doctor said was a result of her not wiping herself properly when she went to the toilet, and that she had regularly applied cream.  The mother asked T why she was asking her if her ‘Minnie’ was still sore and she then said, “Daddy [abbreviation of the father’s first name] scratched me very hard in the Minnie”.The mother then asked her to demonstrate to her what she meant and T pulled back the blanket and showed her with her fingers a back and forth action. The mother said she understood because the father’s hands were very coarse and his hands were like “sandpaper down there”. The mother asked her when this had happened and T replied “the other day,” which the mother took to mean the weekend when T was with the father. It was the mother’s evidence that T’s behaviour had been normal when she returned from the father’s care on Sunday.  

10. When C and L started spending time with the father pursuant to the orders made 21 July 2010 T was reported to be upset that she could not accompany them and said to the mother “Daddy won’t hurt my Minnie no more Mum, I promise”

The Second Statement to the Mother

1. On 30 December 2010, approximately an hour after putting the children to bed, the mother said she overheard the children talking and in particular T saying to C “Put your finger hard in my Minnie [C], in the hole, [C] stay still, open your legs [C] and let me put my fingers in your hole and put your other finger in my bum.”

2. The wife deposes that she said, “[T] don’t touch [C’s] private parts and she can’t touch yours.” She then took the girls into the lounge and told them that no one is allowed to touch their private parts except mum, and told T that C was telling her no but she kept going. T responded “But Daddy [abbreviation of the father’s first name] put his fingers in my minnie and I said stop and he kept going.” The mother further deposed that T also stated that “I touched Daddy [abbreviation of the father’s first name]’s doodle when he wee’d” and that “Daddy [abbreviation of the father’s first name] took me to his friend’s party and there were drunk people there and his friend touched my Minnie in the toilet and people were sleeping on the floor”.

Statement to Ms OO

1. The wife then called her step-mother Ms OO to share her concerns about T’s behaviour. Ms OO described the mother as being in “a distressed state”. She deposed that the mother had told her that she overheard T asking C to touch her vagina and her bottom. It was her understanding that whilst she was on the phone to the mother T asked to be allowed to speak to her. The mother’s evidence was that whilst she had put C to bed T was still up. She remembered telling Ms OO that T was there and although T was present she was able to use words that T would not understand and confirmed that this was similar to the way in which she spoke to Dr S. When Ms OO raised the topic with T, she deposed that she gently said to T “you know you should not touch [C]” to which T replied “[Abbreviation of the father’s first name] did it to me” adding “[Abbreviation of the father’s first name]’s friend did it to me at the party”. Her evidence was that she then said to T “when [abbreviation of the father’s first name] did that to you, did it hurt. Because it will also hurt [C]”.   

2. Ms OO was not required for cross-examination by either the father or the ICL.

The Third Statement to the Mother

1. On the 4 January 2011 the mother deposed that whilst all three children were in the bath she told C not to touch L’s private parts and removed her from the bath. She witnessed C put her open mouth on L’s penis. Later that evening after the children had been put to bed she could hear that the children were awake and when she went in to check on them found T with her pyjamas and underwear pulled down, on her knees bent over with her bottom in front of C rubbing her anus and telling C to touch it. The mother took the girls out of the bedroom and had much the same conversation with them that she had had some five days prior. T then said for the first time that “Daddy [abbreviation of the father’s first name] had a newspaper with pictures of somebody touching mine” When the mother explained that the picture would not have been her Minnie she said “Yes, Daddy told me they are”.

Statement to Ms CC

1. At about 7.35pm that same day Ms CC, a member of the congregation of the church attended by the mother, telephoned the mother to see how the children were. Her evidence was that the mother was very distressed and told her about the incident between T and C. T came to the phone after the mother put the phone down. Ms CC said to her “Hello, [T], its [Ms CC’s first name], how are you? [T] replied “Good”. Ms CC then asked her “Are you OK” to which she replied “Yes”. Ms CC then said to T “Mummy has just told me what just happened, you are not going to do that again are you?” T said “Yeah, but I was doing that because Daddy [abbreviation of the father’s first name] and his friend showed me a picture in a newspaper and it was me in the book and people were touching my Minnie.”

2. At 4.00am that morning T woke up and walked into the mother’s room asking if she could use the toilet. She then asked if she could sleep in the mother’s bed and as she lay in bed said to the mother “Sorry for thinking about touching minnies Mum. I’m not going to look at pictures of people touching minnies no more”.

3. Ms CC was not required for cross examination by either the father or the ICL.

Statement to Ms R

1. T was referred for assessment at the child abuse section of Hospital 1 on 11 December 2009 when she exhibited sexualised behaviour following L’s birth.  The mother was sent a letter offering her an initial appointment on 22 December 2009 but the mother chose not to pursue counselling at that stage due to the cessation of the problem behaviours. T was re-referred for assessment by the mother on 8 April 2010 following the incident at the childcare centre. The mother was interviewed on 18 November 2010 and 7 December 2010. T was observed on the first occasion at her childcare centre on 22 December 2010 and thereafter attended seven sessions with Ms R.

2. Ms R’s evidence was that whilst she remained open to the possibility that T might make further disclosures in relation to sexual abuse, that would be unusual. Her role was to try and understand T’s behaviour rather than to investigate the allegations. In cross-examination she said:

   … I do make a point — every time I see a child, I will let them know why they’re there, and I will say to them that children that come to see me have said that — either they’ve said that something has happened to them, or they’ve had to touch somebody’s private parts, or somebody has touched their private parts, so it’s open. And I would have said to [T] — and I will have to look to clarify, but — and to be certain, but I would have said that, “Mummy has told me that you said that Daddy [the father’s first name] touched you”.

3. When asked if it was her mandate to accept that the allegations were true she responded that “...we’re open to the allegation being true.” And she agreed with the proposition that it was inherent in discussions with the child that it was accepted that what the child said was true

4. During the session with Ms R at the child abuse section of Hospital 1 on 6 January 2011, whilst T was finger painting with glue, she began to rub her three middle fingers in the glue in a very quick manner and thrusted her hips forward and backing in a rocking motion saying “faster, faster, faster”. Ms R’s evidence was that T’s actions had a “sexualised nature” about them.

Statement to Ms Z

1. On 10 January 2010 Ms Z, a friend of the mother, offered to drive the mother to an appointment with her lawyer and to look after T during that appointment.

2. When Ms Z arrived to pick them up the mother told her that “there have been a couple of incidents between the two girls, [T] and [C], fighting, and further disclosures of abuse.” When she asked, by whom, the mother responded that it was her ex-husband Mr Lavery.

3. Ms Z then deposed that T entered the room and, smiling, said words to the effect that “Daddy [abbreviation of the father’s first name] touched my Minnie” and “weed in my hand”.

4. Ma Z was not required for cross-examination by either the father or the ICL.

Second Statement to Ms R

1. During the session with Ms R on 13 January 2011 T was reported to have spontaneously disclosed that “daddy [the father’s first name] touched my Minnie” and went on to disclose that the father had shown her pictures of “people touching minnies”. She also told her that “she could touch minnies but I’m not going to anymore”. T disclosed in this session that the alleged sexual abuse happened in the bathroom at the father’s home where he allegedly “touched my Minnie and I touched his doodle and then he wee’d on my hand. Here I did it like this”. T then proceeded to show Ms R with hand gestures what had occurred using “her left hand to make a pulling motion and then put up her right hand next to her left hand.” Ms R observed that she had never encountered that behaviour before, and that the assessments that the mother conducted, and T’s behaviour as reported by the childcare centre, strongly suggested that T had been sexually abused.  

2. I was impressed by Ms R’s professionalism and expertise. Her evidence was considered and thoughtful and she readily conceded that her starting point was to accept that what the child was telling her was true. Notwithstanding her professionalism and the way in which she gave her evidence, that evidence must be viewed in the context of her role and, more importantly, her acceptance of the fact that T had been sexually abused and that the father was the perpetrator. This is critical to any assessment of her evidence.  

Statement to Ms O

1. Ms O is a registered Clinical Psychologist employed by the Hospital 1 Integrated Mental Health Program, … team. T was referred to this service on 1 December 2009 by the Hospital 2 Child and Adolescent Mental Health Service after the mother moved to a new address. T was referred because of her behavioural difficulties. A referral was made to the child abuse section of Hospital 1 at the same time, however the mother declined the offer of an appointment by the child abuse section at that time. T was seen on the first occasion on 6 January 2010 for an initial assessment. The assessment was completed on 17 March 2010 and T was found to have met the DSM-IV-TR criteria for a diagnosis of Post Traumatic Stress Disorder. Although her sexualised behaviour suggested that she may have been a victim of sexual abuse, at this time T had not made any disclosures suggesting that such abuse had occurred, and whilst she could not for the purposes of treatment ignore the issue of sexual abuse, she did not see it as her role to investigate that possibility.

2. Ms O, in her report describing her work with T, said as follows:

   “…we work with what [T] brings to the sessions and, in the context of the reason for request of this report, disclosures made by [T] regarding sexualised behaviour have not been a focus of our therapeutic treatment”. It was her evidence that it was not her role to investigate whether T had been sexually abused and that T’s sexualised behaviour might be an indicator of sexual abuse, it did not necessarily lead to the conclusion that there had been abuse.

3. During a session on 12 January 2011 T volunteered “when I go to bed I just cry” and when asked by her co-therapist why she said “Because dad comes in and he just sleeps next to me and he just wees in the bed”. It is Ms O’s evidence that “..it did sort of seem to happen at the same time as she went to [the child abuse section of Hospital 1] and made statements there and then the statements came in to our session as well…”

4. Ms O referred to a further session in February 2011 which she said she remembered well because T hadn’t talked much about this type of thing in her earlier sessions, Ms O said:

   …the context being that after that session with us was when [T] then, in her session at [the child abuse section of Hospital 1], made disclosures then, and at that time we were obviously liaising with the [child abuse section], obviously having a mutual client …. And although, as I said, typically we do non-directive work at that time because everyone, you know, was aware that she was going off to see [Ms R] at the [child abuse section]. We did talk to her about that when she next came to see us, that we would actually say to her that we had talked to [Ms R] and that [Ms R] had told us what she had told [Ms R].

5. In that session T started talking about how when she is in the toilet she starts flying, at which time Ms O said to her “that [Ms R] had told us that she had told [Ms R] that it had happened in the toilet with Daddy [abbreviation of the father’s first name], and then she said — yes, ‘When I’m in the toilet I just fly, and when I was in the toilet with Daddy [abbreviation of the father’s first name],…I sat on his lap and touched his doodle and he touched my mini , and he stuck it in real hard and it hurt.’”

6. I observed Ms O to give her evidence with care and consideration. It was her view that T had been sexually abused, however she said she had not formed a view as to the person responsible, leaving that to the appropriate investigative bodies. The difficulty with that proposition however is that DHS, who were investigating the allegations of sexual abuse, substantiated that abuse on the basis of the statements made by T to Ms R and Ms O. It was clear from her evidence that although it was not the usual practice in therapy to deal directly with the allegations of sexual abuse she had raised the issue with T and accepted that T had been sexually abused.

Allegations with respect to C and L

1. The mother described C as having developed aggressive behaviour: biting; throwing things; and hitting people. On 30 December 2010 C was involved in the incident with T and on 4 January 2011 was reported by the mother to have put her open mouth onto L’s penis when all three children were in the bath together.

2. The mother’s evidence was that on 16 February 2011, on the recommendation of Ms B, the Child First Protection worker, she put C on the waiting list at the child abuse section of Hospital 1 for assessment and therapy.

3. C was seen by Ms LL, a social worker at the child abuse section, in the presence of the mother, on 30 June 2011. In her report Ms LL referred to the referral notes and in particular the mother’s allegation that C had told her the father had “hurt her Minnie” or “touched her Minnie” and that the mother was unsure whether this had occurred or whether C was just “copying her sister”. When asked by Ms Swart as to the reasons for the assessment, she referred to there being two reasons for the referral “the first reason pertained to concerns that mum had, …in relation to [C] having been abused or at risk of being abused by her father,” and that, second, “there was some concerns around some sexualised behaviour” involving C.

4. She also gave evidence that after she received the referral for C, but before meeting with either C or her mother, Ms LL talked to Ms R about her impression of the family and that it was Ms RR who indicated to her that the mother “had observed some sexualised behaviour between [C] and her two siblings on two occasions”.

5. Ms LL’s evidence was that when she asked the mother on 30 June 2011 to describe C’s behaviour and the context of that behaviour in relation to the incident with T on 30 December 2010 the mother described it as “being like a fun game with lots of silly laughing and private play, as distinct from,… other types of sexualised behaviour that are more frightening and aggressive for children.”

6. Ms LL considered that T and C’s behaviour as reported to her was beyond what she would expect of normal childhood exploratory behaviour, but in so far as C was concerned she had less concerns as it was a one off occurrence. She did not recommend any ongoing treatment for C at the child abuse section because the alleged disclosure of sexual abuse was being investigated by DHS and because of her age and developmental level, her limited language skills and the limited extent of the alleged sexualised behaviour.

7. Ms LL’s evidence was measured and she was careful not to step beyond her role or area of expertise.

8. Apart from his involvement in the incidents with T and C there were no specific concerns raised with respect to L.

Department of Human Services

1. There was a long history of involvement by DHS with the family both in relation to allegations of ongoing domestic violence and the children’s exposure to the domestic violence, and in relation to the sexual abuse allegations. In accordance with the protocol in Magellan cases, DHS prepared the report dated 25 June 2010 summarising the Department’s involvement with the family. That report was prepared by Ms P. She did not give evidence in the case.

1. The implications of such a finding would be significant not only for the father and for T but also for C and L.

2. Having regard to all the evidence and the submissions made by the parties I am not satisfied on the balance of probabilities that T has either been sexually abused or that if she has been sexually abused the father is the perpetrator. Whilst the evidence of Ms R, Ms O, Ms B and Ms H was that they believed that T had been sexually abused or that there were strong indicators that would suggest she had been sexually abused there is a large forensic step between those opinions and a finding based upon the evidence firstly that it has occurred, and secondly that the father was the perpetrator.

3. The fact that T had made eight statements to different people, including professionals was seen as significant by the mother, however I do not believe that the number of statements and the fact that some of those statements were made to professionals necessarily leads to the conclusion that therefore the sexual abuse must have occurred.

4. Accepting that T made the statements attributed to her and behaved in the manner described by the mother, the professional witnesses and the lay witnesses, I however agree with Ms H that the statements she made and her behaviour must be viewed in a context. There are a number of features of the case which I consider relevant:

   ·T was 2 years and 6 months when the mother and father separated finally. As a result of that separation she lost her only real father figure;

   ·This was also a time of significant disruption in her life. C was born a matter of 7 months before separation and L was born in March 2009 some 5 months after separation;

   ·The mother reported to Ms H that she and the children had moved seven times between first leaving the father in May 2008 and the end of October 2009.These moves had resulted in T attending a number of child care centres;

   ·T’s contact with her father [Mr K] was sporadic;

   ·During this time the mother also had a falling out with her family, except for her father and his new wife in Queensland, which meant that T no longer had any contact with her maternal grandmother and the mother’s siblings who had until that point of time been involved in her life;

   ·T was also a witness to significant conflict between the father and the mother both during the relationship and after separation.

5. I am satisfied that all of these issues had the potential to impact on T’s behaviour and I cannot in those circumstances be satisfied that the alleged sexual abuse is the only explanation for that behaviour, including her sexualised behaviour.

6. There are also features of this case which relate to the statements made by T, the evidence of the witnesses with respect to those statements and how they have been interpreted, and the conclusions which have been drawn as a result of those statements which have lead me to conclude that I could not and should not make a finding that T has been sexually abused. They include:

   ·That it is the mother who was the initial and primary source, although not the only source, of information about T’s sexualised behaviour;

   ·T was only four years old when she made the first statement describing the father as having “scratched her very hard in the minnie”;

   ·That the allegations are based to a significant extent on the statements made initially to the mother;

   ·The fact that the mother is herself a victim of sexual abuse and it is clear from my observations of her evidence and the evidence of Ms H that she is very sensitive to, and concerned about, the possibility that T has been sexually abused;

   ·That the first statement made by T followed the incident at the childcare centre when the mother reported that T was told off by Ms MM. Thereafter T was questioned by her mother, Ms MM and the pastor of the mother’s church and his wife. It was clear from the evidence that T was asked leading questions about whether anyone had touched her “minnie”. It was clear from the evidence of both Ms B and Ms H that direct questioning of children is problematic in terms of being able to rely upon what children might say in answer to direct questioning. The concern being that young children are easily influenced by the suggestions inherent in the questions they are being asked;

   ·It is also clear that there were further discussions to which T was either a party or which at the very least occurred in her hearing or presence on an ongoing basis after she made the first statement to her mother. Whilst the mother’s evidence was that she was careful about what she said and would speak obliquely and use words that she thought T might not understand it is also clear from the evidence of Miss S that T is an intelligent child and there is a very real likelihood that she understood those conversations. These conversations occurred prior to T’s further disclosures to the therapists and counsellors. I do not doubt that the mother was well intentioned but it was clear from her evidence that from the moment she was told about the incident at the childcare centre on 7 April 2009 she was convinced that T had been sexually abused and that the father was the perpetrator.  Even with the best of intentions I would expect T would have some appreciation of her mother’s feelings and her reaction to the allegations of abuse;

   ·As is often the case, the therapists assisting T have conducted that therapy on the basis that it is not their role to assess the veracity of the allegations and accepting that T has been sexually abused;

   ·There has been what I would describe as significant cross- pollination between the various counsellors and therapists;

   ·That the counsellors and therapists have raised the issue of sexual abuse directly with T inviting further disclosures from her;

   ·The father’s perspective is largely absent from the assessments of those treating or assessing T who now conclude that it is most likely that she has been sexually abused;

   ·DHS did include the father in its assessment however ultimately determined that the allegations should be substantiated on the basis that T had made two clear disclosures to two professionals in circumstances where those professionals were themselves working on the assumption that the abuse had occurred.

7. Whilst I do not propose to make a finding that T was sexually abused or that the father was the perpetrator, that of itself does not determine what is in the best interests of C and L and whether an ongoing relationship with the father would expose them to an “unacceptable risk”.

CHILDREN’S BEST INTERESTS
Principal Considerations

1. Determining what is in the children’s best interests requires consideration of the primary and additional considerations set out in s60CC of the Act. I have throughout these reasons assessed and evaluated the evidence with those considerations in mind and with a view to determining what is in the best interests of the children. In summary, my findings in so far as they relate to those considerations are as follows. 

2. Both of the primary considerations are relevant to my determination in this case and the tension between those two considerations goes to the very heart of the case. On the one hand there is the benefit to C and L of maintaining what is described by Ms H as a “positive relationship” with the father weighed up against the need to protect them from the physical and/or psychological harm of being exposed to abuse.

3. It is agreed by the parties that the children should live with the mother and she was observed by Ms H during the preparation of both her first and second report to have a warm and caring relationship with the children. She has maintained that warm and loving relationship with the children notwithstanding her concerns about the possible risk of sexual abuse and there is no evidence which would suggest that she is not capable of doing so on an ongoing basis.

4. In her first report Ms H observed the father’s interaction with C and T to be “…warm, spontaneous and playful…child focussed, inclusive of both children...” In her second report she observed that the children’s interaction with the father “...appeared to be warm, affectionate and spontaneous indicating that the children are comfortable with their father and appear to have a positive relationship with him.”

5. Ms H’s evidence was that it would be very difficult for the children not to see their father and that it was possible if not likely that they would feel a sense of rejection if they did not see him.  She gave evidence that it was highly likely that the children would end up thinking they were to blame which she thought “…would have significant negative consequences in terms of future emotional wellbeing and development and self-esteem and capacity to form positive trusting relationships.”

6. It was Ms H’s opinion, and I find that it is in the children’s best interests, to have a relationship with the father as long as they can be protected from any risk of harm.

Protection of the Children from Harm

1. Whilst I am satisfied that C and L will benefit from an ongoing relationship with the father, and that to prevent them from having that relationship may itself not be in their best interests, that must be weighed up against the risk that for them to do so would expose them to an “unacceptable risk” of sexual abuse.

2. In Donaghey & Donaghey (2011) 45 Fam LR 183, at 190 Murphy J quoted at some length what was said by the Honourable John Fogarty AM writing in the Australian Journal of Family Law (‘Unacceptable Risk – A return to Basics’ (2006) 20 Australian Journal of Family Law 249) which I found a helpful analysis of what is involved in the assessment of risk. He said as follows (at 254–5):

   .. the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.

   Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk every day. People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harm’s way. Most people try to avoid what they perceive to be risk; some willingly take on high risk activities.

   Risk involves two components; the degree of “likelihood’ of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.

   But at some point it usually becomes necessary for that person to make a judgement of the risk and whether it can /should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.

   Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).

   Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult….

   At times the courts and the legislature have attempted to give an indication of the content or quality of the risk — otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable.”

3. Whilst I am not able to make a finding that T has been sexually abused and that the father was the perpetrator of that abuse, I equally cannot find that T was not sexually abused or that even if she was sexually abused the father was not the perpetrator. In the face of the evidence of T’s sexualised behaviour, her statements and the evidence of the professionals (both as to the disclosures made by T and their observations) I am satisfied that the risk of sexual abuse of T by the father would be an unacceptable risk. The question is whether it follows axiomatically that if there is an unacceptable risk for T that C and L are also at risk.

4. Ms O gave evidence that, in her experience, stepchildren are more likely to be at risk of sexual abuse than biological children and that conversely the risk to a biological child may not be as great. Ms R, whilst qualifying her expertise, gave evidence that some perpetrators discriminate between their victims and some don’t but that she had not come across any research which would suggest that perpetrators would only assault their biological children or their step children. 

5. I am satisfied that in circumstances where I have found that there is an unacceptable risk of sexual abuse in relation to T that C and L are also at risk. Even though C and L are the father’s biological children that does not preclude the possibility that they might be sexually abused by the father. The question I must determine is whether or not that risk is unacceptable.

6. The father has been spending time with C and L on a supervised basis since the orders made by Senior Registrar Fitzgibbon on 21 July 2010. Apart from the evidence relating to C’s sexualised behaviour and the allegations she made that the father had touched her “minnie,” mirroring the words used by T, there is no evidence that would suggest that the children have come to any harm in the care of the father, supervised by his sister, mother or partner as is required by the orders. To the contrary, Ms H’s observations of the relationship between the father and the children suggest that the time he spends with the children has been a very positive experience for them.

7. The mother in her evidence suggested that the father’s time with the children has not always been supervised, however that is denied and I have concerns about the mother asking C direct questions with respect to this issue and on the balance of probabilities accept the evidence of the father, his partner, Ms E and his sister Ms A in relation to their supervision when the children are in the father’s care.

8. Ms B and her associate interviewed both the father’s partner and his sister and, notwithstanding their clearly expressed views that they did not believe that the father had sexually abused T, they were satisfied that they would act protectively in relation to C and L and provide the necessary supervision.

9. Ms E was on affidavit and was cross-examined. Notwithstanding the attack on her credit on the basis of her evidence about the incident on Christmas Day 2010, my general observation was that she was a truthful witness. She did concede when questioned about that particular incident that she may have involved herself in the dispute between the father and mother on that occasion. Significantly for the purposes of my determination in this case she was very frank about her view that she did not believe there was any chance that the father had sexually abused T. However it was my observation that she understood and took seriously her obligation to supervise the father’s time with the children notwithstanding her views about the likelihood of anything happening to the children.

10. Ms A, the father’s sister, was also on affidavit and was cross-examined. I am satisfied on the basis of her evidence that she understands what is required of her as a supervisor and takes that role seriously. I am also satisfied that she will take whatever steps might be required of her to protect the children should that be necessary.

11. Having heard their evidence and having regard to the history of the matter and the lengthy period during which they have acted as supervisors, I, like Ms B, am satisfied that they are appropriate supervisors and will act protectively if required to do so.

12. I did not hear from the paternal grandmother however she has been one of the named supervisors since the orders were made on 5 August 2011.

13. Considering all of the evidence in this case I am satisfied that, insofar as there would be an unacceptable risk to the children if they were to spend unsupervised time with the father, if their time with the father is supervised the risk is, in all of the circumstances of this case, acceptable.  However there is little doubt that in a case that requires ongoing supervision there needs to be careful scrutiny of whether spending time with the parent who may require that supervision can be in the child’s best interests.

ADDITIONAL CONSIDERATIONS (s60CC(3))
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. C and L are almost four and three respectively. It is clear from the evidence that they love their father and enjoy spending time with him, but given their ages, their wishes are not relied upon for the purposes of my determination.

(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii)  other persons (including any grandparent or other relative of the child);

(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. I reiterate that I am satisfied that C and L have a good relationship with both the father and the mother.

2. I am also satisfied that it would be detrimental to the children’s welfare if they were not able to continue spending time with the father. It was clear from the evidence of Ms H that not seeing the father would be likely to have “significant negative consequences in terms of future emotional well being and development and self esteem and capacity to form positive trusting relationships.”

3. I am also satisfied that although there are some concerns about T’s behaviour towards the other children there is nothing to suggest that they do not otherwise have a good relationship.

4. Whilst it is clear that T was initially upset and felt left out when C and L spent time with the father I am satisfied that the mother has been able to make the times she spends with T without the other children a positive experience for T. There is no evidence to suggest that the ongoing relationship between C and L and the father will have a detrimental effect on T, and even if there was such evidence I need to balance what I see as the advantages of that relationship with any possible disadvantage to T.

5. Miss Swart on behalf of the ICL submitted that I should make an order restraining the mother from bringing T into the restaurant area at McDonalds during changeovers. This was opposed by the mother on the basis that she is a single mother and with limited means and that she could not always make arrangements that would avoid the necessity of T accompanying her to changeovers. I am satisfied that it would not be practical in the circumstances of this case to impose that restriction on the mother.    

6. The children have an ongoing relationship with the mother’s father and stepmother in Queensland. Whilst there were allegations that the maternal grandfather may have sexually abused one of the mother’s sisters, I am satisfied that the even though the mother does not accept the truth of these allegations she would take appropriate steps to ensure that the children are not left alone with her father.

1. The children also have an ongoing relationship with the father’s family and his new partner. All of the evidence suggests, and I find that, these are positive relationships for the children.

2. Notwithstanding the nature of the allegations both as to sexual abuse and violence, and the obvious lack of trust between the father and the mother, I am satisfied that both the father and the mother have made an effort to facilitate the children’s relationship with the other parent and their extended families.

   I am satisfied, with some reservations which I will refer to shortly, that both the father and the mother have, in difficult circumstances, demonstrated a capacity to provide for the needs of the children.

3. The mother makes serious allegations as to the father’s drug and alcohol use. Although I did not make findings on the basis of those allegations I also did not accept the father’s evidence that he had stopped using drugs or that his drug use had been as he had asserted. In those circumstances I am satisfied that it is in the best interests of the children that an order be made that he not consume illicit drugs or alcohol for 24 hours prior to or during his time with the children as proposed by the ICL.

4. What is very clear in this case is that the father and mother have had some difficulty protecting the children from their ongoing conflict. I am particularly concerned that notwithstanding that these parties separated in late 2008 there is still significant conflict at changeover and they have both been the instigators of this conflict. I am satisfied that I should make orders which provide for changeover to take place at a neutral venue and an order that the parties be restrained from discussing these proceedings. I appreciate that the very nature of these allegations leads to heightened emotion, however I hope that with the conclusion of these proceedings these parties will be able to parent in a way that does not expose their children to the harm of ongoing conflict.

(e)  the practical difficulty and expense of a 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;

(f)  the capacity of: (i)  each of the child's parents; and (ii)  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 am satisfied that to either make orders which would prevent C and L spending time with the father or to change those arrangements to require that their time with the father take place at a contact centre would likely to have an impact on their emotional wellbeing both in the short and long term.

2. The evidence of Ms B on behalf of the DHS was that any time spent by the children with the father be supervised by the father’s partner, mother or sister and that supervision should continue until C and L were developmentally able to articulate if something were to happen to them.

3. Ms H’s said that she didn’t think it was “a simple question of age” but that “obviously children need to have developed sufficient language to be able to make some kind of disclosure”. Her evidence was that she had worked with children aged three and younger who had been able to verbalise to an adult in a clear way that they had been abused.

4. However she also opined that it was not simply a question of the children being developmentally able to make a disclosure of abuse, because it should not be up to children to protect themselves. It was on this basis that she recommended that if there was a finding that the children would be at risk then there should be ongoing supervision of any time spent with the father.

5. On behalf of the ICL it was submitted that I should make orders for supervision on an indefinite basis. It was the father’s case that any supervision should be for twelve months. C would then be five years of age and L would be four.

6. As a general proposition the courts are reluctant to make orders for supervision on an indefinite basis but can and should do so if that is determined to be in a child’s best interests. In O’Keefe & O’Keefe [2009] FamCA 382 at [140] O’Reilly J said as follows:

   The authorities as to long term supervision are clear in providing that whilst conceptually and in practical terms such may be undesirable, always the children’s best interests is the paramount consideration, such that in cases where the choice is between supervised time between a child and a parent, as opposed to there being no time, there are occasions on which, particularly if there is an established relationship between a child and a parent to be preserved, supervised time should be favoured, even if the order be for long term supervision (citations omitted).

7. In W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-325; a case in which Dessau J made orders that the time the father spent with his daughter be supervised subject to a review when the child attained the age of 8 years the Full Court considered the issue of long term supervision as follows (at 79-911):

   We appreciate that the decisions in these difficult cases have the potential for long–term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

8. I am satisfied that in these circumstances I should order ongoing supervision. I am satisfied that even at the ages of five and four respectively C and L should not be expected to protect themselves from the risk of abuse. I am also comforted by the evidence of Ms H that the proposed supervision would be a natural arrangement for the children and they would probably not even be aware that the time with their father was being supervised.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. There was evidence given by a number of the professional witnesses including Ms H as to the age at which one might expect the children to be sufficiently mature and articulate enough to report any inappropriate behaviour however the relevance of this evidence is limited in circumstances where I have determined that the time the father spends with the children should be supervised on an ongoing basis.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:…

1. This consideration is not relevant in the circumstances of this case.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child's family;

(k) any family violence 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. I have already addressed and made findings in relation to the question of whether the children or any family member has been involved in any family violence. There is clearly a history of significant conflict in this case which has without doubt impacted on the welfare of all three children. It is of serious concern. Notwithstanding that history and my findings I am satisfied that it is in C and L’s best interests that they continue to live with the mother and spend time with the father albeit, supervised time. The orders proposed by the ICL also address the issue of the children’s exposure to conflict by providing for changeovers to take place at W Contact Centre. Although that may not be an arrangement that can continue indefinitely I am hopeful that with the passage of time, given that the parties now appear to have some understanding of the impact that their conflict may have on the children, that in the future they will be better able to protect their children from that conflict.

(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. I am conscious of the need to make final orders and that insofar as I make an order that the time the children spend with the father be supervised on an ongoing basis I am inviting further litigation subject to one of the parties being able to establish a change of circumstances as envisaged in In the marriage of Rice & Asplund [1979] FLC 90-725.

2. Given my finding of an unacceptable risk to C and L if the time they spend with their father were to be unsupervised. The question is for how long should it be so supervised.  

3. Whilst Ms H made it clear that it should not be left to the children to protect themselves the evidence certainly suggests that there will be a time when the children will be better able to articulate any concerns they might have about any inappropriate behaviour which of itself could significantly reduce the risk of abuse and allow for the possibility of the father spending unsupervised time with C and L.

4. Although neither the mother nor the ICL proposed any review of the need for supervision, it was the father’s case that any supervision should only be for twelve months, I am of the view that there should be some mechanism for reviewing in the future what are final orders for supervised contact and propose to make an order to that effect. I am satisfied that it would be in the best interests of these children to make an order requiring the parents to attend Relationships Australia to discuss the ongoing arrangements for the father to spend time with the children and in particular the necessity for supervision of that time upon L attaining the age of five years or such earlier date as may be agreed upon by the parties.

(m)  any other fact or circumstance that the court thinks is relevant

Parental Responsibility

1. Whilst the father’s application sought an order for equal shared parental responsibility, in the course of the case he conceded that the mother should have sole parental responsibility for C and L. I am satisfied that even had he not made that concession an order that the mother have sole parental responsibility would in all of the circumstances of this case be appropriate and in the children’s best interests.

2. Whilst the father and mother have been able to facilitate their children’s relationship with the other parent there is still a degree of animosity and mistrust which in my opinion would undermine any ability they might have to co-operate in relation to the ongoing issues with respect to their children’s welfare and in those circumstances the appropriate order is an order that the mother have the sole parental responsibility. I do however, again on the basis of the concessions made by the parties, propose to make an order which would preclude the mother changing the children’s surnames without an order of this Court.

CONCLUSION

1. In all of the circumstances of this case I am satisfied that it is in the best interests of C and L to have an ongoing relationship with the father supervised by his partner Ms E, his sister Ms A , his mother Ms G or such other person that the father and mother may agree upon. I will adopt the orders proposed by the ICL which I am satisfied are in the children’s best interests and subject to the amendments proposed and agreed to by the parties. These include:

   ·The requirement that the mother provide the father with details of any proposed overseas travel not less than 60 days prior to the proposed travel;

   ·Requiring the parties to keep each other notified of any serious illness or injury;

   ·Providing the other with contact details including email address and telephone numbers; and

   ·The provision of or the entitlement to receive all school notices and be advised of any change of school. The mother opposed an order that she be required to provide the father with the address of the kindergarten. The father did not object to the mother withholding the address of the children’s kindergarten

2. Finally, I raised with the parties the possibility of an order that the 

   mother be required to notify the father in advance in the event that she proposed to involve C or L in any counselling or therapy. This was opposed by the father.  However I am satisfied that in circumstances where the mother has sought and obtained assistance from many agencies over a long period and in circumstances where she is so firmly of the view that T has been sexually abused by the father and that C and L are similarly at risk of abuse, it would be appropriate to make an order to that effect. That order will require the mother, save and except in the case of an emergency, to provide the father with at least seven days notice of any proposed new therapy or counselling for C or L.

I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 March 2012

Associate: 

Date:  16 March 2012