Mackay and Carsten and Anor
[2018] FCCA 2947
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACKAY & CARSTEN & ANOR | [2018] FCCA 2947 |
| Catchwords: HELD – Finding the Father has not sexually abused his 5 year old daughter – orders made for each mother to exercise sole parental responsibility with respect to their daughter and to notify the Father within 14 days of any important decision that is made – the daughters to spend time with the Father together on twelve occasions per year fully supervised by the paternal grandparents, who are to provide a detailed undertaking to the Court – the Father to undertake supervised urine drug screens in the week preceding his time with his daughters – the Father to continue therapeutic counselling and to continue attending upon his psychiatrist and provide his treaters with an irrevocable authority to advise the First and Second Respondent Mothers if he ceases treatment against advice. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 64B(2)(g) Evidence Act 1995 (Cth), ss.22 140, 142 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Goode & Goode [2006] FamCA 1346 U & U (2002) 211 CLR 238 |
| Applicant: | MR MACKAY |
| First Respondent: | MS CARSTEN |
| Second Respondent: | MS PATERSON |
| File Number: | MLC 9412 of 2016 |
| Judgment of: | Judge Bender |
| Hearing dates: | 6-10 August 2018, 14-17 August 2018 and 28 August 2018 |
| Date of Last Submission: | 28 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mallett |
| Solicitors for the Applicant: | Docherty Legal |
| Counsel for the First Respondent: | Mr Serra |
| Solicitors for the First Respondent: | J A Middlemis |
Counsel for the Second Respondent: | Ms Fisken |
| Solicitors for the Second Respondent: | Higgins Legal |
| Counsel for the Independent Children's Lawyer: | Ms Mansfield |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
The First Respondent Mother have sole parental responsibility for the child [X] born 2013 (“[X]”).
The First Respondent Mother notify the Father of any major long term parenting decisions made in relation to [X] within 14 days of the decision being made.
[X] live with the First Respondent Mother.
The Second Respondent Mother have sole parental responsibility for the child [Y] born 2009 (“[Y]”).
The Second Respondent Mother notify the Father of any major long term parenting decisions made in relation to [Y] within 14 days of the decision being made.
[Y] live with the Second Respondent Mother.
Upon the paternal grandparents MS D and MR C providing a written undertaking to the Court that they:
(a)will fully supervise all time between the Father and [Y] and [X];
(b)will not permit the Father to take [X] to the toilet;
(c)will not permit the Father to go swimming with [Y] and/or [X];
(d)will not permit the Father to be left alone with [Y] and/or [X] at any time; and
(e)will terminate time between [Y] and [X] and the Father and immediately return [Y] and [X] to their mothers’ care if the Father presents for time with [Y] and [X] in an aggressive or drug affected state:
[Y] and [X] spend time with the Father on the last Sunday of each month from 12:00 noon until 5:00pm save that [Y] and [X] will spend time with the Father from 12:00 noon until 5:00pm on Father’s Day instead of the last Sunday in August and such other and further time as agreed between the Father and each of the respective mothers in writing.
The Father’s time with [Y] and [X] pursuant to order (8) herein take place at the home of the paternal grandparents and be fully supervised by either of the paternal grandmother or the paternal grandfather.
On each Monday preceding [Y] and [X]’s time with the Father pursuant to order (8) herein, the Father shall undertake a supervised urine drug screen at Dorevitch Pathology or such other pathology provider that subjects such screens to mass spectronomy, and provide a copy of the results of same as soon as practicable to:
(a)the Independent Children’s Lawyer until the Independent Children’s Lawyer is discharged; and
(b)thereafter to the First Respondent Mother or her legal representative and the Second Respondent Mother or her legal representative.
In the event the Father complies with order (10) herein and all drug screen results are negative for illicit substances for a period of 18 months, the requirement the Father submit to supervised urine drug screens on each Monday prior to [Y] and [X]’s time with him pursuant to order (8) herein shall be discharged.
In the event the Father fails to undertake a supervised urine drug screen pursuant to order (10) herein or he produces a drug screen result which is positive for illicit substances:
(a)[Y] and [X]’s time with the Father shall be suspended until such time as the Father produces three consecutive clean supervised urine drug screens, such screens to be undertaken on the last Monday of each month and the results of such screens are to be provided to the Independent Children’s Lawyer until the Independent Children’s Lawyer is discharged, the First Respondent Mother or her legal representative and the Second Respondent Mother or her legal representative; and
(b)the requirement for the Father to undertake supervised urine drug screens shall continue until he has produced 18 months of clean screens from the date he failed to undertake a supervised drug screen or produced a drug screen result which was positive for illicit substances.
For the purposes of orders (10)-(12) herein and by way of clarification, a drug screen result that is positive only for dexamphetamine, amphetamine or any other legally prescribed drug or medication which the Father is taking, shall be taken to be a result that is negative for illicit substances.
Each of the paternal grandparents are requested to enrol in and complete a course nominated by the Independent Children’s Lawyer which addresses the impact of illicit substances, including how to identify where possible that a person is affected by illicit substances and provide proof of completion to the Independent Children’s Lawyer and to the legal representatives of the First Respondent Mother and the Second Respondent Mother.
The Father continue to engage in and receive treatment from Dr T, psychiatrist, or such other psychiatrist as nominated by Dr T, for the ongoing treatment of his adult ADHD and follow all reasonable directions in relation to attendance and treatment.
The Father continue to attend upon and receive treatment from Ms A, therapeutic counsellor, or such other therapeutic counsellor as nominated by Ms A and follow all reasonable directions in relation to attendance and treatment.
The Father do all things necessary to provide an irrevocable authority to Dr T and Ms A or such other treaters as nominated by them to notify the First Respondent Mother and the Second Respondent Mother in the event the Father ceases his attendance and/or treatment against their direction.
In the event the Father ceases his attendance and/or treatment with Dr T and/or Ms A or their nominees against their direction, the time that [Y] and ]A] spend with the Father pursuant to order (8) herein shall be suspended.
The Independent Children’s Lawyer provide Dr T and Ms A with copies of the reports of Dr M dated 13 November 2017 and 30 July 2018, the report of Dr O dated 28 May 2018 and this judgment for the purposes of assisting with the Father’s ongoing treatment.
The First Respondent Mother undertake counselling from a suitably qualified psychologist with expertise in family law matters to assist her to:
(a)manage any anxiety and distress that she has in relation to the orders of the Court or the findings contained within this judgment;
(b)understand the importance to [X] of allowing [X] to have a loving and meaningful relationship with the Father; and
(c)understand the impact on [X] if the First Respondent Mother fails to allow her to have a relationship with the Father and continues to expose [X] to her fears, anxieties and hatred of the Father;
and for the purposes of such counselling the First Respondent Mother provide the psychologist with copies of the reports of Dr M dated 13 November 2018 and 30 July 2018, the report of Dr O dated 28 May 2018 and this judgment.
The Father be permitted to receive at his expense all school reports, school photograph order forms and newsletters for [Y] and [X] that are normally received by parents.
The Father be at liberty to attend for parent-teacher interviews in relation to [Y] and [X] provided that such interviews can be arranged and take place after school hours and at a different time and date to that of [Y] and [X]’s mothers.
The Father be restrained from attending at [X] & [Y]’s schools during school hours, including for any sporting events or extra-curricular activities.
Each party shall advise the other of any serious illness or injury suffered by [X] and/or [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of [Y] and/or [X] and from allowing any other person to do so; and
(b)discussing these proceedings, or other proceedings in which the parties are involved, or the contents of any court related documents filed in these proceedings, with or in the presence or hearing of [Y] and/or [X] and from allowing any other person to do so.
The First Respondent Mother ensure that [X] know that her biological father is the Father in these proceedings and he be known as “Dad” or “Daddy Mr Mackay” (or similar) as opposed to “old Dad”.
The First Respondent Mother and the Second Respondent Mother are hereby restrained by injunction from discussing directly with or within the presence or hearing of [Y] and/or [X] the allegations made of sexual abuse or the suggestion that they might have been inappropriately touched by the Father and allowing any other person to do so.
The First Respondent Mother be restrained from taking [X] to any Centre against Sexual Assault (“CASA”) service.
The parties are authorised to provide a copy of these orders to [Y] and [X]’s treating medical practitioners and the principals of [X] and [Y]’s schools.
Pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) the parties be restrained from making any further application under Part VII of the Act in relation to [Y] and/or [X] without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit Court of Australia and for that purpose:
(a)the party seeking to make the further application must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking those orders;
(b)unless otherwise ordered such application is not to be served on the other parties or any other person; and
(c)
if possible, any such application for leave be listed before
Judge Bender.
The Independent Children’s Lawyer is requested to remain in place for a further period of 12 months.
IT IS NOTED that publication of this judgment under the pseudonym Mackay & Carsten & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9412 of 2016
| MR MACKAY |
Applicant
And
| MS CARSTEN |
First Respondent
| MS PATERSON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This very difficult matter relates to what time the Father should spend with his daughters [Y] born 2009 (“[Y]”) and [X] born 2013 (“[X]”).
[Y] is the child from the Father’s relationship with the Second Respondent Mother, Ms Paterson (“Ms Paterson”). [X] is the child from the Father’s relationship with the First Respondent Mother, Ms Carsten (“Ms Carsten”).
Whilst lengthy, the respective proposals of the parties and the Independent Children’s Lawyer will be set out in their entirety as they clearly define the dispute between the parties.
The Father proposed orders be made in the following terms:
“1. That the Applicant MS CARSTEN have sole parental responsibility for the child [X] born 2013, subject to the following:
(a) That not less than 14 days prior to the Applicant seeking to make any decisions affecting the long-term care of the children, she is to notify the Father, in writing via email, of her intended decision, save for an emergency.
(b) That within 7 days thereafter the Father is to respond to the Applicant’s email with any concerns and/or opinions regarding the proposed decisions.
(c) That the Applicant is to have regard for the concerns and/or opinions expressed by the Father.
(d) Thereafter the Applicant is to make the decision and advise the Father, in writing via email of her decision.
2. That the Second Respondent MS PATERSON have sole parental responsibility for the child [Y] born 2009, subject to the following:
(a) That not less than 14 days prior to the Second Respondent seeking to make any decisions affecting the long-term care of the children, she is to notify the Father, in writing via email, of her intended decision, save for an emergency.
(b) That within 7 days thereafter the Father is to respond to the Second Respondent’s email with any concerns and/or opinions regarding the proposed decisions.
(c) That the Second Respondent is to have regard for the concerns and/or opinions expressed by the Father.
(d) Thereafter the Second Respondent is to make the decision and advise the Father, in writing via email of her decision.
3. That the child [X] live with the Applicant.
4. That the child [Y] live with the Second Respondent.
5. That each of the child [X] and [Y] spend time with the Father, subject to the substantial attendance of either of the paternal grandmother MS D or paternal grandfather MR C:
(a) Each alternate weekend during the day;
(b) Special dates such as birthdays, Christmas, Father’s Day and the like.
6. That each of the Applicant and the Second Respondent engage with a suitably qualified counsellor for therapeutic counselling (including the children if determined appropriate by the counsellor) as nominated by the Independent Children’s Lawyer, for such time as determined by the counsellor.
7. Each parent is permitted to attend any school or extracurricular functions or events (including volunteer activities) that parents are normally invited to.
8. Each of the Applicant and Second Respondent shall:
(a) Authorise any medical practitioner or health professional upon which the children may attend from time-to-time, to communicate with the Father in respect to the children’s medical conditions and/or requirements.
(b) Do all things necessary to authorise and/or facilitate all schools at which the children my attend from time-to-time, to:
(i) Provide the Father, at the expense of the Father, copies of all school reports, notices and photographs of the children;
(ii) Communicate with the Father either by telephone, in writing or by personal attendance, in respect of the children’s progress.
(iii) Attend all school functions to which the parents are normally invited (including volunteer activities), save that in respect of any parent-teacher interviews, that those must occur separately, and if the school cannot accommodate a separate parent-teacher interview, then only the Mothers will attend.
Subject to any school policy in relation to the above matters.
9. In the event either of the children suffer from serious illness or serious injury requiring them to attend a medical professional, the parent who is caring for the children will notify the other parent via text message as soon as practicable and inform the other parent of the nature of the illness or injury, the prognosis, medication and contact details of the treating medical professional.
10. Each party to be at liberty to provide a copy of the orders to any one or more of the following:
(a) The Principal or delegate of the Principal of the school(s) attended from time-to-time by the children;
(b) Any medical practitioner and/or allied health professional attending upon the children; and (sic)
11. Each of the parents shall within 7 days of the day of these Orders confirm the email address via which they wish to be contacted with communication regarding the children and shall, within 24 hours of any change in those details, advise the other parent.
12. The parents are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; and
(b) Discussing these proceedings, or other proceedings in which the parties are involved, or the contents of any court related documents filed in, or intended for use in, these proceedings, with, or in the hearing of, either child or allowing any other person to do so.
(c) Referring to anyone other than the Father as “Dad” or any derivative of that.
AND THE COURT NOTES:
A. That the Father not prevented by the rule in Rice & Asplund from bring further application (sic) regarding his contact with the children following the completion of each of Applicant and Second Respondent in counselling (sic).”
In her closing submissions, Counsel for the Father advised the Court that in order to alleviate any concerns the Court may have as to the possible risk brought about by concerns relating to the Father’s mental health and history of drug use, the Father would consent to orders that he continue to undertake supervised drug screens and that he continue to engage with a psychiatrist and psychologist and provide those practitioners with an irrevocable authority to notify Ms Paterson and Ms Carsten if he should disengage from such treatment against the advice of those practitioners.
In her closings, Counsel for the Independent Children’s Lawyer provided the Court and the parties with a minute setting out the Independent Children’s Lawyer’s proposed final orders. They are as follows:
“1. All previous parenting orders be discharged.
2. The Applicant have sole parental responsibility with respect to the child [X] born 2013 (“[X]”), save that any major decision she makes for [X] be communicated to the Father within 14 days.
3. The Second Respondent have sole parental responsibility with respect to the child [Y] born 2009 (“[Y]”), save that any major decision she makes for [Y] be communicated to the Father within 14 days.
4. [Y] and [X] live with their respective Mothers.
5. [Y] and [X] communicate and spend time with the Father as follows:
a. should the Father not have the funds for private supervision, then at least 4 times per year at the Children’s Contact Centre, Town A and it is requested that Contact Centre, where possible, arrange a visit as close to the children’s birthdays, Father’s Day, Easter and Christmas; or
b. through another professional supervised service:
i. at least once every 6 weeks (and no more than once per month) as nominated by the children’s Mothers and in default of nomination on the first Saturday of a 6 week cycle for [Y] and the first Sunday of a 6 week cycle for [X], immediately after the making of final orders;
ii. for a period of no more than 4 hours;
iii. at the Father’s expense;
c. that the Paternal Grandmother be able to attend with the Father during his time spent with the children at his election.
6. The Father be at liberty to send to the children via their residential address (if known) or via a family member or to a PO BOX supplied by the Mothers if not given in person, letters, cards or gifts.
7. A copy of the 2nd family report of Dr M dated 30 July 2018, together with the final orders made in this matter and a copy of the judgment be provided to Contact Centre or the private supervisor that facilitates the supervised time between the children, or either of them, and the Father.
8. The Mothers be and are hereby restrained from:
a. Discussing directly with or within the presence or hearing of either [X] or [Y] (sic) the allegations made or sexual abuse or the suggestion that they might have been inappropriately touched by their father;
b. Permitting anyone else to discuss directly with or within the presence or hearing of either [X] or [Y] (sic) the allegations made of sexual abuse or the suggestion that they might have been inappropriately touched by their father; and
c. With respect to [X], the Applicant Mother be restrained from taking [X] to any CASA service.
9. In the event the Applicant Mother is willing to attend a clinical psychologist who is familiar with family law matters to assist her in understanding any orders the court might make and any findings the court might make as to the allegations of sexual abuse, the Mother is to provide a copy of the following documents to the psychologist:
a. a copy of the two family reports of Dr M dated 13 November 2017 and 30 July 2018;
b. a copy of Dr O’s assessment of the Father dated 25 May 2018; and
c. a copy of the judgment and final orders made in this matter.
10. Each parent is restrained from denigrating the other parent in the presence or within the hearing of [Y] and/or [X] or allowing any other person to do so.
11. The Applicant Mother ensure that [X] know that her biological father is the 2nd Respondent in these proceedings (sic) and he be known as “Dad” or “Daddy Mr Mackay” (or similar) as opposed to “old Dad”.
12. The Father be and is hereby restrained from being under the influence or taking any illicit substance or alcohol to excess 24 hours prior to or during any time spent with the children, or either of them.
13. The Father be permitted, at his own expense to obtain from the children’s kindergarten or schools, a copy of their kindergarten or school reports and a copy of annual kindergarten or school photographs and the Applicant and the Second Respondent forthwith do all things necessary to inform the current schools at which the children attend of this order and provide an authority for this to occur, and provide all future schools with the same authority upon enrolment.
14. The Father be and is hereby restrained from attending, approaching or being involved in any way (either by telephone, electronic means or in person) with any time the children spend with the Paternal Grandmother, Ms D.
15. Pursuant to section 64(B)(2)(g) of the Family Law Act 1975 (Cth) (‘the Act’) the Father be restrained for a period of 2 years from the date of the final orders being made, from making any application under Part VII of the Act in relation to the children without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit Court of Australia and for that purpose:
a. the Father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders;
b. unless otherwise ordered such application is not to be served on either of the Mothers or any other person; and
c. if possible, any such application for leave be listed before Judge Bender (the trial judge).
16. The appointment of the Independent Children’s Lawyer be discharged.
AND IT IS NOTED:
A. It is envisaged that the time between the children and the Paternal Grandmother take place in a public place.”
In his closings, Counsel for Ms Carsten advised his client’s proposed orders are identical to those put forward by the Independent Children’s Lawyer with one exception, that being that [X] and [Y] should always spend time with the Father together.
The final orders proposed by Ms Paterson are as follows:
“1. That the second respondent mother have sole parental responsibility for the child, [Y] born 2009 (“[Y]), save that any major decision she makes with respect to [Y] be communicated to the father within 14 days.
2. That [Y] live with the Second Respondent Mother
3. That [Y] spend time and communicate with the Father for at least four times per year (but no more than once every six weeks) at Community Contact Centre or through another professional supervised service and:
a. The Paternal grandmother be permitted to attend such supervised visits
b. To the extent practicable, such supervised visits coincide with visits when the child, [X] spends time with father.
c. Any costs associated with the supervision be borne by the father
d. The supervisor and/or supervising agency be provided with:
i. A copy of these orders;
ii. A copy of the family report of Dr M dated 30 July 2018; and
iii. Reasons for Judgment
4. That the father be restrained by injunction from:
a. Discussing these proceedings and/or adult matters in general with [Y]; and
b. Initiating physical contact with [Y] including hugging and/or cuddling; and
c. Attending at [Y]’s school.
5. That the father be permitted to provide letters, gifts and cards to [Y] on special occasions such as birthdays and Christmas and the Second Respondent Mother shall ensure that [Y] receives such cards (and it is noted that they shall be provided via the paternal grandmother)
6. That the first respondent mother and second respondent mother ensure that the children, [X] and [Y] spend regular face to face time together including overnight time, at dates and times as agreed between the First Respondent Mother and Second Respondent Mother.
7. That the First Respondent mother and Second Respondent mother ensure that the children, [X] and [Y] communicate with one another by facetime on a regular basis (no less than once per week).
8. The father be restrained from attending, or interfering in any way, with any scheduled visits between [Y] and the paternal grandmother pursuant to Notation A hereof.
AND THE COURT NOTES
A. The Second Respondent mother shall facilitate [Y] spending regular time with the paternal grandmother (approximately once every three weeks) with such time to occur at a public venue and at a date and time as agreed in writing via text message between the Second Respondent Mother and paternal grandmother.
B. It is requested that the paternal grandmother terminate any time pursuant to Notation A should the Father attempt to participate and/or attend such visits and immediately notify the Second Respondent Mother of same.”
In her closings on behalf of Ms Paterson, her counsel properly noted there was little difference between Ms Paterson’s proposal and that of the Independent Children’s Lawyer.
Background
The Father was born on 1981 and is aged 36 years. He is currently in a relationship with Ms S who has three children from a previous relationship aged eleven, nine and seven years. They live in Ms S’s primary care. The Father lives between his parents’ home and that of Ms S. The Father is currently unemployed.
Ms Paterson was born on 1984 and is aged 34 years. She is employed as a (occupation omitted). She is not currently in a relationship. [Y] is her only child.
Ms Carsten was born on 1987 and is aged 30 years. She is a (occupation omitted) running her own business. She is in a relationship with Mr T, a (occupation omitted). She lives between Mr T’s home and that of her parents. [X] is her only child.
The Father and Ms Paterson commenced a relationship in or around 2006 and commenced cohabitation in 2007. At that time the Father was working as a (occupation omitted) at (employer omitted) and Ms Paterson at a (employer omitted). Both agree they used illicit substances when they commenced their relationship.
It is Ms Paterson’s evidence she stopped drug use prior to becoming pregnant with [Y] but the Father’s drug use continued. It is Ms Paterson’s evidence the Father was verbally abusive, angry and threatening throughout their relationship. This is denied by the Father.
Ms Paterson alleges the Father accessed teenage pornography during the relationship. The Father denies this and says he and Ms Paterson both looked at adult pornography.
The Father and Ms Paterson separated in March 2010 when Ms Paterson and [Y] left the former family home. It is Ms Paterson’s evidence that when she attempted to leave the former matrimonial home with [Y], the Father physically assaulted her, locked the door and prevented her from leaving. The Father denies he physically assaulted Ms Paterson at this time but concedes he did initially prevent her from leaving with [Y] whilst he tried to talk to Ms Paterson and persuade her not to leave. He further conceded he may well have yelled at Ms Paterson and accused her of cheating.
Following the incident at separation, Ms Paterson obtained a six month intervention order against the Father.
Upon separation, Ms Paterson initially lived with her father in Town B for three months and then moved to Melbourne. Between August 2010 and March 2011, [Y] spent no time with the Father.
It is the Father’s evidence he commenced his relationship with Ms Carsten in late 2010 and they commenced cohabitation shortly thereafter. Ms Carsten’s evidence is their relationship and cohabitation did not commence until 2012.
In March 2011, Ms Paterson and the Father attended mediation and entered into a parenting plan which provided for [Y] to spend time with the Father three Sundays per month.
It is Ms Paterson’s evidence that [Y]’s time with the Father took place in the presence of either the paternal grandmother or Ms Carsten. This supports the Father’s evidence that his relationship with Ms Carsten commenced late 2010 and not 2012, as is Ms Carsten’s evidence.
After [X] was born the Father did not spend time with [Y] in accordance with the parenting plan. What time [Y] did spend with the Father after [X]’s birth is unknown. It is the Father’s evidence this was because Ms Carsten made it very hard for him to see [Y] as she did not wish him to have a relationship with [Y] and told him he had to choose between she and [X] or [Y]. This is denied by Ms Carsten.
It is Ms Carsten’s evidence that after [X]’s birth, she returned to live with her parents and thereafter she and [X] only slept two nights each week at the Father’s home.
It is the Father’s evidence that at the time of [X]’s birth he was renovating the parties’ home and it did not have a kitchen or bathroom. It is his evidence that once the kitchen and bathroom were completed, Ms Carsten and [X] returned to live full time with him.
In 2014 the Father and Ms Carsten had a “wedding” ceremony in (country omitted). Whilst not a legal wedding, both the Father and Ms Carsten’s families attended as did friends of Ms Carsten. An album of the ceremony shows Ms Carsten in a formal wedding dress, the Father and his attendants in matching attire and the guests all dressed for the occasion. [X] was the flower girl.
It is Ms Carsten’s evidence the ceremony was a “sham” and she only did it to appease the Father as she feared his anger.
It is Ms Carsten’s further evidence that upon the parties’ return from (country omitted), they did not have a sexual relationship and she and [X] only stayed with the Father two nights per week during which time the Father slept on the couch.
It is the Father’s evidence that he and Ms Carsten became engaged 12 months prior to the (country omitted) “wedding”, that he believed the parties were married in (country omitted) and that when they returned to Australia after the ceremony he, Ms Carsten and [X] lived together full time as a family and that he and Ms Carsten continued their sexual relationship.
In 2014, the Father’s brother, Mr H was charged with drug trafficking, possession of firearms and possession of proceeds of crime. He was convicted and served six months in jail.
In 2015 [Y] did not spend any time with the Father for approximately six months. The Father explains this arose because Ms Paterson was moving a lot and it was difficult to make arrangements with her for him to see [Y]. Ms Paterson offers no explanation for time between [Y] and the Father stopping during this period.
In June 2015 Ms Paterson made contact with the paternal grandmother. It was agreed between Ms Paterson and the paternal grandmother that [Y] would spend time with the paternal grandmother at the paternal grandparents’ home for one to two weekends per month from Friday to Sunday. This arrangement continued from June 2015 until September 2016.
It is Ms Paterson’s evidence the paternal grandmother agreed that when [Y] was with her, [Y] would not be left alone with the Father and the paternal grandmother would not let the Father take [Y] anywhere in a car.
Whilst [Y] was spending time with the paternal grandmother, the Father would attend the paternal grandparents’ home to spend time with [Y] for between two to five hours, usually on a Sunday. On occasion he would have [X] with him but more often he was on his own.
The Father and Ms Carsten separated on 30 August 2016 when Ms Carsten and [X] either returned to live with the maternal grandparents (the Father’s evidence) or remained living with the maternal grandparents (Ms Carsten’s evidence).
On 2 September 2016 [X] spent time with the Father by agreement between the Father and Ms Carsten.
On 3 September 2016 [X] again spent time with the Father. It is the Father’s evidence this was by agreement. It is Ms Carsten’s evidence this occurred because the Father jumped the six foot fence at the rear of her parents’ property, grabbed [X] from her and left. [X] was returned by the Father to Ms Carsten that evening. It is Ms Carsten’s evidence this is because the paternal grandfather intervened after she rang him requesting he speak to the Father to get him to return [X] to her. The paternal grandfather denies Ms Carsten called him or that he spoke to the Father.
On 4 September 2016, Ms Carsten sent the Father a text message offering him time with [X] that afternoon. The Father initially advised Ms Carsten he was unavailable because of work. He then subsequently texted to say his plans had changed and he would “be there soon to pick her up”.
On the afternoon/evening of 4 September 2016, Ms Carsten, the maternal grandmother and [X] were at the circus. It is Ms Carsten’s evidence that when she, her mother and [X] walked out of the circus, the Father was waiting for them in the car park. It is Ms Carsten’s further evidence that the Father yelled at them, grabbed [X] and left with her. It is the Father’s evidence he and Ms Carsten had agreed by phone that he would collect [X] after the circus to spend time with her.
[X] remained with the Father from 4 September 2016 until she was removed from his care by the police on 6 September 2016 after Ms Carsten attended the police station on that date and obtained an urgent intervention order for the protection of herself and [X].
It is the Father’s evidence that after the police took [X] from him on
6 September 2016 he, to use his words, “fell off the cliff”. He started using ICE daily.
The full extent of the Father’s drug use prior to September 2016 is unclear. However, it is apparent the Father used illicit substances at least “recreationally” throughout the entirety of his adult life.
On 16 September 2016, the Father was arrested on charges of burglary, theft of firearm and possess methamphetamine. The Father was also charged with breaches of the intervention order taken out by Ms Carsten on 6 September 2016 arising from abusive text messages and Facebook posts made by him. The Father was remanded in custody for 30 days.
At the time of the Father’s arrest, [Y] was at the home of the paternal grandparents. The paternal grandmother rang Ms Paterson and advised she needed to collect [Y].
On 29 September 2016, Ms Carsten filed an Initiating Application in the Federal Circuit Court seeking parenting and property orders.
After Ms Carsten and the Father separated, Ms Carsten and Ms Paterson met at Ms Paterson’s request. Until then they had had very little to do with one another. They discussed the recent break-up of the Father and Ms Carsten’s relationship, the reasons for same and their respective experiences of their relationships with the Father.
On 17 October 2016 the Father came before the Town A Magistrates’ Court. He was convicted of burglary, theft of firearm, possess firearm, possess methamphetamine and breach of intervention order. He was sentenced to the 30 days served and given a 12 month Community Corrections Order (“CCO”) to include 100 hours of unpaid community work, treatment for drugs and a mental health assessment.
Between September and November 2016, [Y] spent time with the paternal grandmother at her home on agreed Sundays between 11:00am and 4:00pm. It is Ms Paterson’s evidence that these visits were on the condition the Father was not to be left alone with [Y] or take [Y] anywhere in a car.
In November 2016, it is Ms Paterson’s evidence that she arrived to collect [Y] from the paternal grandmother’s residence at 4:00pm. When Ms Paterson arrived [Y] was not there. It is Ms Paterson’s evidence the paternal grandmother told her the Father had taken [Y] with him in the car and she did not know where. The maternal grandmother rang the Father who returned home. Ms Paterson’s evidence is the Father was speeding and did a “burnout” on the road when he arrived. Ms Paterson describes the Father as being heavily affected by drugs as his eyes were glassy and he was pale.
It is Ms Paterson’s evidence that [Y] told her whilst she was out with the Father, the Father had been arguing with his brother Mr H about “sugar in a little bag”. Ms Paterson believes the Father took [Y] to a drug deal.
The paternal grandmother’s evidence is that on this occasion [Y] asked to go with her father. The paternal grandfather told the paternal grandmother and the Father that would be okay. The paternal grandmother denies the Father was speeding or did burnouts upon his return to her home as she was out the front of the home when he returned with [Y] and saw how he pulled up. It is the paternal grandmother’s evidence she did not believe the Father to be drug affected as she understood him to have detoxed whilst on remand.
It is the Father’s evidence he was not drug affected, did not speed or do burnouts on his return and that he did not see his brother Mr H on this day.
Following this incident, Ms Paterson did not allow [Y] to spend time with the paternal grandparents until Boxing Day 2016. Thereafter, [Y] spent time with the paternal grandmother on Sundays from 11:00am until 4:00pm. This was on the condition that [Y] was not to be left alone with the Father and the Father was not to leave with [Y].
When Ms Carsten’s application came before the Court for the first time on 28 November 2016, interim orders were made for [X] to spend time with the Father from 2:30pm until 5:30pm each Sunday and on Boxing Day with such time to be supervised by one or both of the paternal grandparents and to take place at Town C. The Father was ordered to undergo supervised drug screens within 24 hours of a written request to do so from the Independent Children’s Lawyer and to enrol and engage with a general counsellor or psychologist as to the relationship breakdown, anger management and trauma and to complete a men’s behavioural change program.
Ms Carsten alleges that when the Father heard the Court’s intended orders, he turned to her and said “you’re a dead cunt”. The Father denies this allegation. No other person in the court room heard the Father make this threat.
On 2 December 2016 the Father was found asleep in a car in the car park of the (location omitted) with two ICE pipes and a small quantity of methamphetamine. He was charged with failing to undergo a drug test and possess methamphetamine. It is the Father’s evidence someone gave him the drugs but he had not used them. It is his further evidence the police advised him not to bother taking the drug test as it would have returned a positive result as he is prescribed dexamphetamine by his psychiatrist to treat his adult ADHD.
The Father faced Court on 3 February 2017 for the charges of possess methamphetamine and failing to undergo a breath test and, because of those charges, for breaching his CCO. His existing CCO was extended by six months to 15 April 2018 for judicial monitoring and he was placed on a further CCO for 12 months and his licence cancelled for six months.
Ms Carsten’s application returned to Court on 3 March 2017. On that date further interim orders were made for [X] to spend time with the Father each Sunday from 1:00pm until 5:00pm and for two hours on a weekday with changeover at Town A Children’s Contact Centre. The Father’s time was to be supervised by any of the paternal grandparents or paternal aunt.
In late 2016/early 2017, the Father commenced a relationship with Ms J. On 22 May 2017, Ms Carsten was allegedly contacted by Ms J on Facebook. Ms Carsten and Ms J then proceeded to chat using Messenger. Ms J wrote “Fuck my 4 yo son told me Mr Mackay tied him up and put him in his room when I was at work”. Ms J has a then-four year old son, [A], who was living with her and the Father at this time.
Ms Carsten immediately contacted Ms Paterson who then contacted Ms J (who in communication with Ms Paterson referred to herself as Ms J). Ms J wrote to Ms Paterson:
“He told my ex while he was playing his iPad that Mr Mackay tied him up and put him in his room I wasn’t there so I don’t know but my ex rang me crying and told me that and said something about a photo in the lounge”
Ms Paterson responded “Photo???”
Ms J responded:
“They got him to say it on video I didn’t want to watch the video I thought it would be too distressing. Taking a photo or so.ething (sic) along those lines”
Ms Paterson: “What Mr Mackay took a photo of him tied up????”
Ms J: “He didn’t elaborate on it that’s all I know hun”
After Ms Carsten and Ms Paterson’s communications with Ms J, both stopped time between the Father and their daughters.
After Ms Paterson stopped all time between [Y] and the paternal family, it is Ms Paterson’s evidence a car started doing burnouts out the front of her house. Ms Paterson installed a video security system at her home which recorded the Father driving past her home very slowly on a regular basis in June 2017. The Father also attended [Y]’s school in June 2017 and spoke to [Y]. Ms Paterson applied for and obtained an intervention order against the Father for the protection of herself and [Y].
The Father agrees he drove past Ms Paterson’s home in June 2017 when Ms Paterson stopped time between he and [Y]. It is his evidence he did so as he was concerned Ms Paterson may have again left Town A. It is his evidence he visited [Y] at school as he wanted to see her and make sure she was fine.
The Father issued an urgent Application in a Case on 13 June 2017 seeking the resumption of his time with [Y] as well as a specific order that the mid-week time ordered in March 2017 take place on Wednesday as he and Ms Carsten had been unable to agree on a day.
In the Father’s affidavit sworn 8 June 2017 in support of his Application in a Case the Father deposes at paragraph [16]:
“I did not tie up [A] or do anything like that at all”
The Father’s evidence at final hearing was he had tied [A] up but it was only very briefly as he and [A] were playing a game where they were copying a show he and [A] had seen on TV. The Father’s viva voce evidence was Ms J was there when this occurred.
It is the Father’s evidence shortly after Ms Carsten received the messages allegedly from Ms J, Ms J told him she had not communicated electronically with Ms Carsten. It is his further evidence that shortly after these allegations were made, Ms J attended his solicitor to give a statement for the preparation of an affidavit in which she supported him. It is his evidence she subsequently refused to swear that affidavit as she was by then embroiled in her own proceedings as to the care of her son and had been advised by her solicitors to have nothing to do with the Father’s proceedings.
The Father’s Application in a Case came before the Court on 21 June 2017. Interim orders were made that the Father’s time with [X] pursuant to the interim orders made 3 March 2017 resume forthwith, the mid-week time was to take place Wednesday between 3:00pm and 5:00pm and that otherwise all orders of 3 March 2017 were to remain in full force and effect.
The Father spent time with [X] pursuant to the orders of 3 March 2017 on Sunday 13 August 2017. It is Ms Carsten’s evidence that approximately one hour after returning home [X] needed to go to the toilet. It is Ms Carsten’s evidence that she accompanied [X] to the toilet and that when [X] pulled down her underpants there was a large scrunched up wad of toilet paper in [X]’s underpants that was partly stuck in her vagina.
When giving her oral evidence Ms Carsten’s evidence was that when she saw the paper she “was in shock”. She then pulled a face to show her reaction. Ms Carsten scrunched up 6-7 tissues to illustrate how big the ball of paper was she found in [X]’s underpants. It was the size of a dinner roll. It is her evidence she then asked [X] “why is that there?” somewhat sharply and that [X] simply shrugged her shoulders – like she was in trouble – and didn’t say anything further.
It is Ms Carsten’s evidence she then told her mother what had happened and they both agreed that “something wasn’t right.”
The matter was before the Court on 14 August 2017. It is Ms Carsten’s evidence that on the morning of court she received a call from the maternal grandmother and that the maternal grandmother told her she had asked [X] how the toilet paper got in her pants and [X] had told her the toilet paper had got there by “magic”. The maternal grandmother then asked [X] who does magic to which [X] replied “Dad”.
On 14 August 2017, the Court was advised there had been disclosures made by [X] and that there was an appointment for [X] to be seen by a doctor on 15 August 2017. The matter was therefore adjourned to 17 August 2017.
It is Ms Carsten and the maternal grandmother’s oral evidence that on the evening of 14 August 2017, Ms Carsten and the maternal grandmother again questioned [X] about how the toilet paper got into her pants. [X] repeated it was “magic” and in response to their question “who’s magic” [X] responded “My Dad is magic”.
It is Ms Carsten and the maternal grandmother’s further evidence that on the evening of 14 August 2017, they “stewed all night” and made the decision to take [X] to the police the next morning being 15 August 2017.
Ms Carsten attended Town A Police Station on the morning of 15 August 2017 to report her belief [X] had been sexually assaulted by the Father. Ms Carsten was asked to bring [X] into the police station for an interview after her doctor’s appointment.
Subpoenaed documents from Victoria Police tendered into evidence disclose the doctor who examined [X] on 15 August 2017, Dr S, advised the police that [X] had a mild vulva redness when examined but did not elaborate on probable causes. Cream was provided to treat the rash. The notes provide “Nil urinary tract infection” and “No abnormalities detected”.
[X]’s medical records from the general practitioner’s clinic she has attended all her life, (Medical Clinic), were tendered into evidence. Dr S, who examined [X] on 15 August 2017, is not part of this practice. S’s notes of her examination of [X] on 15 August 2017 are not before the Court.
After [X] saw Dr S, the Mother and the maternal grandmother took [X] to the police where she was interviewed by Senior Constable Ms H on her own. Senior Constable Ms H’s notes from her interview were tendered into evidence. They are as follows:
“
B’DAY AFTER UNCLE.
WANTS A PRINCESS CUPCAKE PARTIES
MUM IS JUST CALLED MUM.
DAD - PA IS CALLED PA
SEE DAD LAST = EVER + EVER
BROKEN BARBI DOLL
WHO FIXES THINGS FOR YOU AT HOME? PA HE CAN FIX THINGS.
WHO IS MAGIC – MAGIC CAN GET BARBIE TO NEXT LEVEL.
MOVE TO VARE ROOM – LESS DISTRACTIONS
DSC Ms M WHAT DO YOU DO NEXT?
WHAT DO YOU DO AT HOME? I PLAY
I DO LOTS OF SPINNING
MUM – SHE CAN DO PLATS BECAUSE SHE IS A (OMITTED)
- SHE CAN PLAY W/ MY HAIR
WE RAN AFTER SOMEONE WHO TOOK HER LICENCE
DAD – HE CAN DO ANYTHING
- HE CAN RUN AFTER PEPLE WHO IS VERY FAST
SEE DAD LAST – I CANT REMEMBER I DON’T KNOW
I THINK I SEE HIM IN A WEEK
WHAT DO YOU DO WHEN YOU SEE DAD – I RIDE MY SCOOTER
I HEAR YOURE TOILET TRAINED NOW SO TELL ME ABOUT THAT, WHO TAKES YOU TO TOILET?
CAN WE PLAY NOW COS IVE TOLD ALL YOU PEOPLE NAMED FAMILY MEMBERS
SPECIFIC – HOW DO YOU GO TO TOILET – WHEN GO TO DO WEE + POO’S
WHERE DOES THAT COME FROM – BUM (POINTS TO VAGINA)
HAS ANYONE TOUCHED IT? NOPE NOW, CAN SPIN
NO SECRETS WITH MUM + DAD OR.”
Ms Carsten joined [X] and Senior Constable Ms H after [X] had finished her interview with Senior Constable Ms H. Upon being advised [X] had made no disclosures of abuse, Ms Carsten questioned [X] in front of police. Senior Constable Ms H’s notes of that exchange are as follows:
“
MUM ASKING [X] QNS IN FRONT OF US. WHO TOOK YOU
I THINK IT WAS MAGIC.
IS YOUD DAD MAGIC. YES.
DID YOUR DAD TOUCH YOUR BUM YES
WHO DO YOU KEEP SECRETS W, NOBODY
NOT ANYMORE ([X])
DO YOU GET SCARED? YEAH
WHY DO YOU GET SCARED? I JUST DON’T KNOW.
WHAT KIND OF MAGIC? BIG MAGIC
WHO DO YOU DO MAGIC WITH? NO BODY.
DID SOMEONE TEL YOU NOT TO TELL MUM? YEAH
WHO? I DON’T KNOW.
IN VARE ROOM W, MUM ONLY
NO DISCLOSURE.”
Senior Constable Ms H in correspondence to the Officer in Charge, Central Victoria Sexual Offences and Child Abuse Investigation Team (“SOCIT”) dated 17 August 2017 stated:
“5. There were no disclosures of any sexual assault or any other type of assault or abuse against MACKAY made.
6. CASA was considered for [X] (sic), however given there were no disclosures made of any assault police believe this may in fact be detrimental and plant the idea in her head when we cannot determine if any offending has in fact occurred.
…
10. As there have been no offences detected in this investigation, I do not have reason to arrest and question MR MACKAY in relation to the allegation therefore I request the investigation MAQUILAS-2017 be finalised.”
Ms Carsten’s concerns [X] had been sexually abused by the Father were reported to the Department of Health and Human Services (“DHHS”). It is unknown if it was Ms Carsten or the police who notified DHHS.
On 16 August 2017 Ms Carsten, the maternal grandmother and [X] attended the offices of DHHS where [X] was interviewed for almost two hours. The notes of that interview were contained in the subpoenaed documents from DHHS which were tendered into evidence. The interview conducted by DHHS was appalling. [X], who at the time was only three years’ old, was subjected to very leading questions and was badgered by the DHHS worker. Ms Carsten and the maternal grandmother were in the room and started crying. [X] was clearly tired and wanted to end the interview and despite this the worker continued to question and badger [X].
On 15 August 2018, [X]’s maternal grandmother, Ms L, swore an affidavit in support of Ms Carsten. Paragraphs [4]-[8] of the maternal grandmother’s affidavit deposed to [X] developing a very bad rash in her genital area between February and May 2017. In paragraph [8] of her affidavit, the maternal grandmother deposes:
“The rash has now returned and to my observation the return of the rash has coincided with the husband again spending time with [X].”
Ms Carsten raised [X]’s rash with both the police and DHHS as being evidence of abuse by the Father. Interestingly, Ms Carsten did not raise this rash in her affidavit sworn on 16 June 2017 in support of her application for the Father’s time with [X] to take place at Contact Centre. Ms Carsten does not raise the rash in her trial affidavit sworn 11 July 2018 either.
It is Ms Carsten’s oral evidence that [X] developed what she thought was nappy rash in February 2017 which she and her mother initially treated with over-the-counter cream. Ms Carsten’s evidence is the rash worsened such that, by March, [X] had weeping sores and a nasty smelling discharge. [X] was not taken to the doctor until 20 April 2017, when it is Ms Carsten’s evidence the doctor recommended an alternative non-prescription cream.
Ms Carsten’s evidence as to what then occurred is inconsistent. On one version of the Mother’s evidence, the rash either cleared up in June 2017 at which time she stopped using the cream. It then returned a couple of months later when the cream was re-used and the rash then disappeared. The other version of the Mother’s evidence is the rash finally resolved around July/August 2017 with the ongoing use of the cream.
Perusal of [X]’s medical records reveal [X] was taken to the doctor in October 2015 with a very sore throat and nappy rash. She was prescribed Bactroban Cream and Miconazole Nitrate/Zinc Ointment. [X] was taken to the doctor on 20 April 2017 by Ms Carsten because [X] had rashes on her thighs and external genitalia. The doctor’s notes state “no oozing, no bleeding”. There is no mention of “weeping sores”. The doctor prescribed a Cortic-DS cream. Ms Carsten returned to the doctor a week later on 26 April 2017 where the doctor reports a “red dot like rash in the groin” which he recorded as thrush. He then prescribed Miconazole Nitrate Cream, the cream prescribed to [X] some 18 months earlier for the same problem.
Ms Paterson swore an affidavit in support of Ms Carsten on 15 August 2017. In paragraphs [7] and [8] of her affidavit Ms Paterson deposes as follows:
“7. I understand that the mother in these proceedings has stated that her daughter ([X]) has exhibited some signs of possibly being touched in the area of her genitals.
I say that for a period of time [X] on occasions returned to me very itchy in that area.
8. I was suspicious at the time, but with no evidence and [X] not saying anything I did not follow it up.
The following factors have since arisen which have given me cause for concern.
(i) Since [X] has stopped seeing her father she has not displayed the same symptoms; and
(ii) I was aware that [X] reported to a third party in a conversation that the father touched her in the area of her genitals and when pressed further on the matter became very secretive and would not disclose any further particulars; and
(iii) When we were cohabiting I observed at times that the father frequently accessed pornography on the internet and included amongst those searches were websites relating to “teenage porn”.”
On 17 August 2017 interim orders were made for [X]’s time with the Father pursuant to orders (16)-(19) of the orders of 3 March 2017 to be varied so that such time be supervised by a professional supervisor.
The Father, Ms Carsten and [X] attended Dr M on 18 September 2017 for the purposes of a family report. Dr M’s report was released on 13 November 2017 (“the first report”).
Under the heading ‘Evaluation’ in Dr M’s first family report, she states as follows:
“The current dispute before the Court relates to whether [X]’s time with her father should progress to unsupervised and overnight…Her father reported being the primary carer for [X] when she was young, where he was out of work, with the mother returning to work when [X] was approximately nine-months of age. Since separation… [X] has remained predominantly in her mothers’ care, and has spent (for the most part) regular time with her father.”
When describing [X], Dr M in paragraph [43] indicates that “She is an exuberant and bubbly child, who shows great resilience and a happy and positive disposition.” Dr M says that she “is tracking beautifully in terms of her development across the board, where she is either on track or advanced in her abilities.” She indicates that [X] “appears to be thriving, which can only occur when parents provide an environment where children can meet their full potential – it is a testament to the early care that she has received.”
Under the heading “Allegations against the father, and other parenting issues relevant to [X] raised” Dr M sets out a number of headings.
The first of these is “Sexual abuse allegations”. In paragraph [46]
Dr M notes that a forensic interview of the allegations of sexual abuse was outside the scope of the family report and was not completed. She notes however that [X] raised the allegation but when doing so her affect was somewhat incongruent with what might be considered a typical three year old reporting a traumatic event. She describes [X] as speaking with “up-beat prosody, with rising intonation, a smile on her face and whilst maintaining eye-contact.” Dr M also reports as being noteworthy that [X] “used sentences/words that were adult in nature, and atypical of a three-year-olds description of events.” Dr M states that [X]:
“used the word “magic” (a word and concept that was reportedly used in the disclosure of sexual abuse) spontaneously throughout her play without any change in her affect.”
Dr M opines that “if such a word was used in an act of abuse, then one might expect [[X]] to have an aversion to the word, or at least a change in her affect or behaviour when using it.”
Dr M notes:
“[X] also showed no signs of fear nor anxiety in her relationship with her father – in fact, she showed the opposite, where she was consistently excited to see him. She was also comfortable in his embrace.”
Dr M does however observe that the allegations are serious and when combined with the allegation that the Father had accessed child pornography and given his chequered history, then it raises significant concern and the allegations would need to be tested in court.
Dr M makes the observation that if further information as to the allegation of sexual abuse is required, [X]’s reporting of events has likely been tainted given she is clearly using adult words to describe that abuse at this time.
Under the heading “The father’s substance use, criminal history, and mental health” Dr M notes the Father to present as open about his past in relation to his criminal behaviour and substance abuse. She notes that the Father’s drug screens are reportedly clear other than showing his prescription medication (being dexamphetamine which he is prescribed for adult ADHD by his treating psychiatrist). Dr M however notes that “if the father’s prescription medication is contributing to a positive screen (for amphetamines), then is this also potentially masking other amphetamine use?” Dr M suggests guidance is required by the laboratory conducting the screening to determine this issue.
Dr M then makes the observation that if the Father is free from substance use, the three main concerns as they pertain to his parenting of [X] are “(i) the recency of his use, (ii) the duration of his use, and; (iii) his personality profile and diagnosis of ADHD.”
In relation to the Father’s recency and duration of use, Dr M notes that the Father has been using ICE for approximately five years and that ideally some time would need to pass outside the current context to understand the longevity of his reported behaviour change.
In terms of the Father’s personality profile, Dr M makes the observation that further information is required to better understand the risk of substance abuse. Dr M observes that whilst the Father is motivated and committed to a greater level of involvement with his children and that he is currently being medicated and under the regular review of a psychiatrist in relation to his ADHD, he has a lengthy history of polysubstance abuse. Dr M further notes that substance abuse disorders can be mediated by a number of other factors such as impulsivity, bipolar disorder, sensation seeking and conduct disorders. Dr M states that as a comprehensive psychological assessment has not been completed in relation to the Father, it is difficult to determine his future risk of reengaging in use of substances.
In relation to the Father’s criminal behaviour, Dr M observes it is of concern as it appears to be interlinked with his substance use, the breakdown of the relationship with Ms Carsten and poor mental health. However, Dr M makes the observation that if the Father can remain free from substances then he may also remain free from criminal behaviour.
Under the heading “Other relevant issues”, Dr M also notes the allegations of family violence as well as the allegation that the Father had tied up the son of his former partner.
Finally, Dr M was concerned that the Father had discussed with [X] future time spend arrangements that had not as yet been ruled on by the Court, something the supervisor had also noted the Father to do inappropriately in front of [X].
When discussing the issues pertaining to Ms Carsten, Dr M observes that she has many strengths and that there are few concerns raised regarding her parenting over the course of the assessment, other than her capacity to support the father/child relationship.
Dr M notes that Ms Carsten’s views of the sexual abuse allegations had clearly been discussed with [X], with [X] using adult language in describing events. Ms Carsten’s reporting of [X]’s adverse response to time with the Father was noted by Dr M to be at complete odds with the observed interactions between the Father and [X] during the report writing process as well as the observed interactions of the professional who had recently been supervising the Father’s time with [X].
Dr M concludes her report and recommendations at paragraphs [57] to [64] as follows:
“57. Despite some question remaining regarding the mother’s capacity to support the father-child relationship, Ms Carsten presented as child-focussed, attuned to [X]’s needs, and as sharing a close, loving, and positive attachment bond with [X]. At [X]’s age, a dramatic reduction in time with her mother would likely be developmentally challenging and potentially detrimental to her development. In addition, there are some outstanding issues with regards to the father that should be addressed prior to finalising time-spent arrangements. As such, [X] should remain living predominantly with her mother.
58. Mr Mackay presented as a well-meaning, loving, and committed father. His desire to spend more time with [X] is understandable. And [X] clearly loves him, and the pair share a strong, close, loving and positive attachment relationship. However, his proposals for equal shared living arrangements present as, (i) premature, given outstanding issues, and; (ii) providing more disruption for [X] for little benefit to the quality of the strong bond that they already share.
59. Prior to considering the father’s parenting proposal, there are a number of outstanding issues that require attendance:
a. If the Courts are not satisfied regarding the allegations of sexual abuse and use of child pornography, then the father should undergo a comprehensive assessment of risk of sexual offending.
b. If the Courts are satisfied that the allegations of sexual abuse and use of child pornography are false, then [X]’s time with her father could gradually increase in duration, and shift to unsupervised during day-time hours.
c. Concurrently, the father should undergo a comprehensive psychological assessment of his mental health. This assessment should ideally include a focus on: (i) psychopathology, (ii) personality traits, (iii) substance use, (iv) his expression of anger, (v) his interpersonal relational style, and; (vi) child abuse potential. Such information will assist with, (i) better understanding co-parenting issues, and; (ii) potential risk issues in relation to [X]. This must be completed by someone with knowledge in children’s development, so as they can provide comment on the relevance of results to parenting capacity.
d. Once the outstanding issues have been addressed (and potential risk issues assessed and addressed), and [X]’s time with her father has been occurring with success, then overnight’s may be considered. And, at a later date, review of the father’s proposal through an Updated Family Report.
e. The Updated Family Report writer should have access to any relevant information regarding family law proceedings for [Y], also.
RECOMMENDATIONS
On the basis of the available information, the following recommendations are made:
60. Equal shared parental responsibilities (ESPR) are recommended.
61. It is respectfully recommended [X] live with their mother.
62. It is respectfully recommended that [X] spend gradually increasing duration of time with her father, that shifts to unsupervised (pending allegation of risk of sexual abuse discarded by the Court).
63. The father should undergo a comprehensive psychological assessment of personality and mental health.
64. The family should re-present for an updated family report once the above has been addressed (with information shared across Court proceedings for both of Mr Mackay’s children).”
On 12 September 2017 the Father filed an Application in a Case seeking to join Ms Paterson in the proceedings and for orders he spend time with [Y] each Saturday/Sunday and Wednesday with the paternal grandparents being in substantial attendance.
In October 2017, Ms Paterson was contacted on Messenger by Ms J. Ms J apologised for not communicating with Ms Paterson, but explained “I got threatened and my lawyer told me cut ties with everything associated with Mr Mackay that meant including you and Ms Carsten.”
During the Messenger exchange, Ms Paterson asked if she can ask Ms J a question. Ms Paterson asked:
“Okay did [A] ever say that the pic Mr Mackay took was naked ? I know that’s a heavy questions but there is stuff going on and we need to know”
Ms J responded: “He state clothes off hun”
On 28 November 2017 orders were made for Ms Paterson to be joined to the proceedings and to file answering material by 29 January 2018.
Interim orders were also made on 28 November 2017 that on the very comprehensive undertakings of the paternal grandmother and paternal aunt set out in the footnote below[1], [X] spend time with the Father each Wednesday from 10:00am until 2:00pm and each Sunday from 9:00am until 12:00 noon, such time to be fully supervised by either the paternal grandmother or paternal aunt. The orders also restrained Ms Carsten from referring to the Father other than as Dad or referring to the Father as “old Dad” and Mr T as “new Dad”.
[1]The 28 November 2017, orders also provided for the Father to attend upon Dr O for the purposes of the preparation of a risk assessment and a psychological assessment.
On 7 December 2017, Ms Carsten obtained a four year extension of the intervention order against the Father first obtained in September 2016 for the protection of herself and [X].
On 31 January 2018, [X] and Ms Carsten were at the home of Mr T. Ms Carsten and Mr T were sitting on the couch. It is Ms Carsten’s evidence [X] came over to the couch. [X] put her hand on Mr T’s knee and started rubbing it. Ms Carsten then reports [X] moved her hand up towards his groin whereby Mr T grabbed her hand and both said to her “don’t do that”.
Annexed to Ms Carsten’s trial affidavit sworn 11 July 2018 is a copy of Ms Carsten’s statement made to the police on 1 February 2018 in relation to this incident. It reads as follows:
“10. She came over to us, where we were sitting on the couch. She put her hand on Mr T’s knee and started rubbing it. Then she slid her hand up towards his groin. Mr T grabbed her hand and moved it away. He said “Don’t do that.” I also said something like “Don’t do that.”
11. [X] said “I’m touching Mr T’s jocks. Knickers.”
12. I said to [X] “Does your dad make you touch his jocks?”
13. She got this startled, scared look on her face like she was in trouble and hunched her shoulders over like she was cowering. It looked to me like she thought she was in trouble.
14. I’d seen her act like this once before, when she previously told me about Mr Mackay sexually assaulting her.
15. I kept saying to her “You’re not in trouble, but does your dad make you touch his jocks?”
16. [X] nodded and said “Yes.”
17. I said “How does that make you feel? Does it make you feel upset or scared?”
18. She said “Scared.” But then she shut down like she thought she was in trouble and wouldn’t respond to me.
19. Mr T left the room and I think he was calling the Police.
20. I waited a few minutes then said to [X] “Has dad been touching you?”
21. She wouldn’t answer me so I just kept reassuring her that she wasn’t in trouble. I told her “You can tell mummy anything. I’m just trying to help you.”
22. I said “Did dad touch your bum again?” because that’s what she told me had happened last time. She nodded.
23. I said “Can you tell me when?”
24. She said “In a minute. I need to get a drink” like she was stalling and didn’t want to talk.
25. I told her to go and get her drink. I said “Once you’ve had a drink will you please come back and tell mummy?”
26. She said “Yes.”
27. A minute later she came back and sat on my lap on the couch and gave me a cuddle. I was still reassuring her that she wasn’t in trouble and asked “Can you please tell me about dad?”
28. She said “Yeah.”
29. I said “When did dad touch your bum?”
30. She said “The other day.”
31. I said “Where?”
32. She said “In the pool.”
33. I said “Were you in the pool or out of the pool?” I don’t think she really understood what I was asking so I said “Were you in the water or out of the water?”
34. She said “No. We were in the pool siting on the step.”
35. I said “Where was your gran?” because she’s supposed to be supervising the custody visits. Her grandmother is MS D.
36. [X] said “She was at the pool.”
37. I said “But where at the pool?”
38. She said “She was sitting at the warm pool and we were in the big cold pool.”
39. Then she said she needed to go to the toilet so she left the room and I went to help her.
40. While we were in the toilet I said “who changes you at the pool?”
41. She said “Gran.”
42. Then I said “When dad touches you does he touch you with your knickers on or does he put his hand under your knickers?”
43. She said “Under my knickers.”
44. I said “Where does he touch you?”
45. She said “In the middle and on the sides.”
46. I said “What about today?”
47. She said “No it wasn’t today. It was the other day at the pool.”
48. Mr T was walking in and out of the room while we were in the toilet. He was asking things like [X]’s date of birth and Mr Mackay’s date of birth so that was part of why I assumed he was on the phone to the Police.
49. At some point, I can’t remember if it was before or after she went to the toilet I also asked [X] “Can you show mummy where dad touches you?”
50. She was just wearing her pull-up nappy, which she wears for bed, and she pointed three times at her nappy, where her vagina is.”
Ms Carsten concludes her statement to the police with the following:
“58. Today, while I was reporting to Police what had happened. I got a message from MS J. Her Facebook name is MS J. She’s Mr Mackay’s ex-girlfriend who fled because Mr Mackay had threatened her. She had previously gotten in contact with me and told me that Mr Mackay had “done something” to her four year old son. She ended up telling me that Mr Mackay had tied her son up naked and taken photos of him, while she was at work. I think her son’s name is [A].”
[X] was interviewed by the police in relation to her alleged disclosures that the Father had inappropriately touched her at the pool. A transcript of [X]’s VARE interview was tendered into evidence. It is apparent from the transcript that [X] completely shut down and refused to participate in the interview.
The matter returned to Court on 15 February 2018 when interim orders were made for the parties to make application to Contact Centre and that upon acceptance to Contact Centre, [X] and [Y] spend supervised time with the Father on different days at such times and dates as nominated by Contact Centre. A notation to the order sought [X] spend time with the Father on Thursday between 1:00pm and 3:00pm and [Y] spend time with the Father on Saturdays between 12:00 noon and 2:00pm.
On 28 May 2018, orders were made for the Father to undergo a hair follicle test with the toxicologist to be requested to comment on any detected levels of dexamphetamine against the prescribed dosage of the Father’s prescribed medication for ADHD. The orders also provided for Dorevitch Pathology to be requested to confirm in writing whether their testing procedure is able to distinguish between methamphetamine and dexamphetamine and if so, which was detected in the Father’s samples.
The orders also provided for Dr M to prepare a second family report to include all parties, [Y] and [X] (“the second report”).
A notation to the 28 May 2018 orders stated the paternal grandmother is permitted to attend for 20 minutes during the Father’s time with [Y] and [X] at Contact Centre.
Since the orders were made in February 2018, [Y] has been spending two hours between 3:00pm and 5:00pm each alternate Saturday with the Father and [X] has been spending two hours between 10:00am and 12:00 noon each alternate Thursday.
The Evidence
The Father
The Father relies on his trial affidavit sworn 16 July 2018. He also gave viva voce evidence at the final hearing.
The Father also relies on the affidavits of his parents Mr C and Ms D sworn 16 July 2018. Both Mr and Mrs Mackay gave viva voce evidence at the final hearing.
The Father also placed into evidence the affidavit of senior toxicologist from the Victorian Institute of Forensic Medicine, Ms K sworn 6 August 2018 and correspondence dated 15 August 2018 from Mr N, Chief Scientist Biochemistry/Toxicology Dorevitch Pathology.
In compliance with the Court’s orders, the Father has undertaken multiple supervised drug screens. The Father’s drug screens have all shown a result positive for “amphetamine”. It is the Father’s evidence that this result reflects the dexamphetamine he is prescribed by his treating psychiatrist Dr T to manage his adult ADHD.
Pursuant to the Court’s orders of 28 May 2018 the Father undertook a hair follicle test. This was performed by Ms K. The results of that test are annexed to her affidavit sworn 6 August 2018 and disclose that the hair sample was positive for amphetamine, alprazolam, a prescription drug the Father was taking and doxylamine, an over-the-counter antihistamine.
The Court was advised that all four Counsel spoke to Ms K, who explained that the hair follicle test involves mass spectronomy detection which differentiates between amphetamine (which is prescribed to the Father for his adult ADHD) and methamphetamine (which is ICE). Ms K advised Counsel that the result of the hair follicle test was that the Father has not used any illicit substances.
Ms K also advised Counsel that in order to differentiate between amphetamine and methamphetamine it was necessary to perform mass spectronomy testing.
Given this information from Ms K, enquiries were then made of Dorevitch Pathology to clarify whether they perform mass spectronomy testing and were therefore able to differentiate in the random drug screens provided by the Father whether he was taking amphetamine as opposed to methamphetamine.
In the response from Mr N from Dorevitch Pathology he confirmed that they did perform mass spectronomy and that they would never release an amphetamine result without “MS confirmation”.
In response to the question “Where mass spectronomy testing has been performed and the resulting analyte is “amphetamine” is not consistent with the subject having used methamphetamine?” Mr N responded as follows:
“This is correct, Amphetamine and Methamphetamine are two different compounds, however, when an individual uses Methamphetamine (ice) they will often be positive to both amphetamine and methamphetamine. Amphetamine is a metabolite of methamphetamine. Amphetamine can only be prescribed for treatment of ADHD (dexamphetamine) and in these instances the donor should only be positive to amphetamine. Methamphetamine positives are only due to illicit use.”
Further, in response to the question “Is testing result “amphetamine” is consistent with the subject having taken Dexamphetamine?” Mr N responded as follows:
“Yes, dexamphetamine is an isomer of amphetamine, if either of these compounds is detected we would only report amphetamine.”
It was therefore agreed by all parties that the Father’s drug screens and hair follicle test support his evidence that he has not engaged in illicit drug use for the last 18 months.
In the psychological and forensic psychosexual risk assessment report prepared by Dr O dated 28 May 2018 and in her subsequent viva voce evidence, Dr O noted the Father’s propensity to present himself in an overly positive light. This tendency was apparent when the Father was giving his evidence before the Court.
The Father was questioned in relation to his current and historic drug use.
It is the Father’s evidence that he has been drug free since his incarceration in September/October 2016.
It is the Father’s evidence that for the two weeks following the police removing [X] from his care on 6 September 2016 he used ICE on a daily basis and describes himself as being “addicted” to that drug for that period of time. It is his evidence that prior to this period he only used illicit substances, including ICE, recreationally and when asked to further expand on what that meant in relation to his level of use, indicated that he would use small amounts of ICE occasionally on weekends.
When asked whether he had experienced any other period of drug addiction, it is the Father’s evidence there was a period of 12 months in his late early teens/early twenties when he was addicted to marijuana.
The Father’s medical records from (Medical Centre) were put to him in evidence. On 28 June 2012 he attended upon Dr A. Dr A’s notes state:
“Needs Valium for anxiety – lots of things happening – on Ice evey day (sic) – 0.5-1.0 gm a day –…”
When questioned as to whether he was using ICE daily at that time, the Father responded that he could have been. He then responded that his attending Dr A for assistance shows he recognised he had a problem, that he went and did something about it and was not trying to hide it.
The Father’s medical records from 15 April 2015 where he saw Dr B (“Dr B”) state the following:
“HE WAS ON ICE FOR PAST 5 TO 6 YEARS HE IS TAKING ½ GRAM OF ICE DAILY. HE THINK HE HAS ADHD WHEN HE WAS YOUNG. HE COULD NOT CONCENTRATE IN HIS STUDIES IN CHILDHOOD AND ALSO IN WORK. ICE WAS HELPING HIM TO CONCENTRATE AND GET UP IN MORNING. HE THINK HE HAS ATTENTION DEFICIT HYPERACTIVITY DISOPRDER (sic) IN CHILDHOOD AND PRESENT STATE IS CONTINUATION OF IT. HE LOST THE JOB NOW. HEIS (sic) DEPRESSED. HE HAS A GIRL FRIENDAND (sic) SHE IS HELPING HIM HE WANT TO STOP ICE.”
When questioned about this entry, it is the Father’s evidence that Dr B was wrong in his notes and that he could have said he had a reoccurring problem over five or six years. He also says that he didn’t tell him he was taking half a gram daily, but was rather talking about half a point.
Following this appointment, Dr B referred the Father to Dr T, psychiatrist.
When questioned as to why he was referred to Dr T, the Father responded it was for his ADHD and not because of his ICE use.
Tendered into evidence is a copy of correspondence from Dr T to Dr B dated 13 July 2015. In that correspondence Dr T states as follows:
“He presents with difficulty concentrating from childhood onwards, and he became hooked on ICE which has been using for the past years to improve his concentration. However, he began using various forms of amphetamines; recently the usage has increased significantly.
IN THE PAST: Mr Mackay started using ICE in his early teens.
Fifteen years ago he was prescribed Dexamphetamine for a year; however he stopped it and moved onto speed.
At this stage he wants to stop using Speed and ICE and restart Dexamphetamines.
…
DIAGNOSTIC IMPRESSION: Mr Mackay has a past history of ADHD and was maintaining well on Dexamphetamines at one point, possibly he is self-medicating using Speed and ICE.
He was also trying to gain acceptance and validation from his peer group in his early teens by using drugs and became addicted.
…
MY DIAGNOSIS IS: Adult ADHD Syndrome.”
Under the hearing “Plan” Dr T set out the following:
“1. Continue Sertralin 100mg mane
2. Seroquel XR 50mg at 1800hours
3. Start Dexamphetamine 5mg mane and midi, which can be increased in 2 weeks to10mg mane and 5mg midi
4. Referral to Town A Community Health for Drug and Alcohol Counselling
5. Psychologist referral via mental health plan”
Also tendered into evidence was a copy of correspondence from Dr T to Dr B dated 24 September 2016. In that correspondence Dr T indicated she reviewed the Father on 12 September 2016. Dr T then sets out that the Father reports he has recently lost his job and separated from his wife who has also taken his child away. Dr T reports the Father as saying his sleep is poor, his appetite is poor and he has ongoing anxiety and low mood.
It is the Father’s evidence that during this period he was using ICE daily and that this was the reason for his participation in the criminal activity that led to his arrest on 16 September 2016. When asked if he had told Dr T that he was using ICE when he saw her on 12 September, it is the Father’s evidence that he believed he would have done so as “he is always honest with his doctors”.
The Father was cross-examined at length about the incident between himself, his now-partner Ms S and Ms S’s brother Mr S that occurred in December 2017.
It is the Father’s evidence that he cannot understand why this incident has been given such prominence by Dr M in her family report or in these proceedings, given that he and Ms S were the victims in this incident and it was something over which they had no control.
When asked to explain the sequence of events in relation to this incident, the Father explained that he, Ms S and her three children had attended Carols by Candlelight. When they got back to Ms S’s home it had been broken into. They reported this to the police, who attended that night and returned the following day to take fingerprints. Some days later, Mr S attended at Ms S’s home. It is the Father’s evidence Mr S was clearly drug affected. Mr S claimed to have hidden money in Ms S’s home and it would appear was accusing either Ms S or the Father of stealing that money. Given Mr S’s presentation, Ms S rang her parents and arranged for her three children to go to her parents’ home for their safety.
It is the Father’s evidence that he then left with Mr S in his car apparently to try and defuse the situation. Mr S then punched the Father in the head as a result of which the Father jumped out of the car leaving his mobile phone in Mr S’s car. It is the Father’s evidence he then asked a passer-by to ring the police on his behalf and that he waited on the side of the road for an hour for the police to attend but they failed to do so.
The Father then walked back to Ms S’s home, which was just around the corner. When asked why he did not immediately return to Ms S’s home when he jumped out of Mr S’s car, the Father indicated he did not do so out of fear that Mr S may have returned to Ms S’s home.
It is the Father’s evidence that he and Ms S then decided to go to the home of the Father’s brother Mr H, presumably for their own safety.
After arriving at Mr H’s home, it is the Father’s evidence that Mr S telephoned Ms S, or that possibly she contacted her brother. It is the Father’s evidence that Ms S advised Mr S of where she and the Father were, apparently so that Mr S could return the Father’s phone to him. When Mr S arrived at Mr H’s home, he was given entry into the home. He accused the Father and Ms S of knowing the whereabouts of the money. When they denied this, Mr S threw a punch at the Father and then pulled a gun which he pointed at the Father. The Father then left Mr Mackay’s home with Mr S.
The Father’s evidence is that he again called the police and waited an hour for them to attend and they again failed to do so.
It is the Father’s evidence that he and Ms S then drove to a car park where they stayed for several hours “in shock” before going to the police station the next morning where a formal statement was made.
It is the Father’s evidence that Ms S has now taken out an intervention order against her brother for the protection of herself and her children. It is the Father’s further evidence that Mr S has since this incident been seriously injured whilst in police custody such that he is now a paraplegic.
At the conclusion of his description of this incident, the Father stated as follows:
“Can’t see it’s relevant but at the end of the day it was out of my control. All I could have done better is go to the police earlier.”
The Father is adamant in his denial that he tied up Ms J’s son [A] in the manner alleged, that he put [A] in his room having done so, or photographed him tied up either clothed or naked.
Orders that provide for [X] in particular to spend more time with the Father than Ms Carsten’s current beliefs and anxieties accommodate, leave open the real risk that any suggestion by [X] of inappropriate behaviour by the Father will immediately result in Ms Carsten exposing [X] to her previous intensive and inappropriate questioning, police involvement, DHHS involvement, unilateral cessation of time and urgent applications to this Court. Such a scenario would not be in [X]’s best interests.
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant
The proposal of the Independent Children’s Lawyer has been set out in detail in this judgment.
It is submitted on behalf of the Independent Children’s Lawyer that it would be “almost impossible” for the Court to make a finding that [X] has suffered sexual abuse by her father.
Counsel for the Independent Children’s Lawyer indicated the pattern in which the allegations by Ms Carsten were made on the cusp of Court proceedings, Ms Carsten’s unilateral taking of [X] to CASA, Ms Carsten’s persistent questioning of [X] and the use of leading questions, the contamination of [X]’s “disclosures” by her mother’s, DHHS’ and police questioning, the inconsistency of her “disclosures”, the vehemency with which Ms Carsten and her family accept the word of a young four year old child without question and Ms Carsten’s inherent anxiety about the Father, have caused the Independent Children’s Lawyer to “not be convinced that sexual abuse has occurred”.
Counsel for the Independent Children’s Lawyer submitted that the animated demonstration by Ms Carsten with what can only be described as a ball of toilet paper in a young child’s underpants beggared belief and lent some credence to the suggestion put to her by the Father’s Counsel and others that she had exaggerated and embellished this account, as did the description of “magic”, the convoluted pool stories and Mr T’s clarification of the knee stroking incident.
Counsel for the Independent Children’s Lawyer described Ms Carsten’s case as “the perfect storm”. Counsel described Ms Carsten as being someone who instantly regretted forming a relationship with the Father. She described the Father as a vulnerable man with a compromised clinical mental health picture who has been susceptible to aggressive and intimidating outbursts when he does not get his way, who has lived on the fringes of criminal activity at various times and who continues to associate with people who are known to be participating in both illicit drug use and criminal activity. Counsel for the Independent Children’s Lawyer described Ms Carsten as so embedded with fear and anxiety that she is unable to pause, reflect and consider other scenarios that may be put to her and who instead jumps to the worst possible conclusion.
It is submitted on behalf of the Independent Children’s Lawyer that whilst an unacceptable risk to [X] cannot be found on the basis of sexual abuse, there is sufficient evidence before the Court that the lifestyle choices and personality traits of the Father warrant a finding that for the children to spend unfettered time with him would likely present an unacceptable risk. Counsel for the Independent Children’s Lawyer listed the Father’s drug use, his propensity to resort to increased drug use in fragile periods of his life, his engagement in criminal activity and his utterly foolish decision to engage with Mr S as examples of behaviours by the Father that cause real concern to the Independent Children’s Lawyer.
Counsel for the Independent Children’s Lawyer acknowledged that whilst the Father had made some real progress since this matter first came before the Court, there is still an element of chaos around the Father’s life and concerns about his level of engagement in some of those interventions as evidenced by the notes from Ms A.
It is submitted on behalf of the Independent Children’s Lawyer that in those circumstances the Father’s time with [X] and [Y] must continue to be supervised. It is further submitted by Counsel for the Independent Children’s Lawyer that such is the level of the mothers’ anxiety, and particularly that of Ms Carsten, that the paternal grandmother, despite being a caring and loving grandmother, is too aligned with her son to be able to undertake such supervision and therefore it must be done professionally.
It is submitted on behalf of the Independent Children’s Lawyer that in relation to [Y], somewhat sadly, she seems to be able to live without the presence of her father in her life. When the Independent Children’s Lawyer met with [Y], [Y] said that she could not understand what all the fuss was about on the topic of seeing her father.
It is the Independent Children’s Lawyer’s belief that [Y]’s strongest paternal family connection is with the paternal grandmother.
It was submitted on behalf of the Independent Children’s Lawyer that as was the evidence of Dr M, the best outcome for [X] and [Y] may well be described as the lesser of two evils. Given the concerns in relation to the Father’s functioning and that Ms Carsten in particular will be always on a high level alert to any sniff of inappropriate behaviour by the Father, the emotional toll on [X] and [Y] of being on the rollercoaster that was described by Dr M can be dramatically reduced if orders were made for limited professionally supervised time between them and the Father in the short to medium term.
The Independent Children’s Lawyer also submitted that there needs to be a period of respite for [Y] and [X] and their mothers from ongoing litigation and that therefore orders should be made that further litigation cannot ensue until the Court is satisfied the Father has demonstrated he is further advanced in his drug rehabilitation and has actively engaged in counselling in a non-litigious environment. Hence the proposal of the Independent Children’s Lawyer that orders be made pursuant to section 64B(2)(g) of the Act.
Presumption of equal shared parental responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
In this matter neither mothers, the Father nor the Independent Children’s Lawyer are proposing that orders should be made other than [X]’s mother have sole parental responsibility for [X] and [Y]’s mother have sole parental responsibility for [Y].
The Father however is seeking orders that an order for sole parental responsibility be subject to the condition that not less than 14 days prior to either mother making a decision she notify the Father in writing via email of her intended decision, that within seven days thereafter the Father is to respond to that email with his concerns or opinions, the mother is to have regard to those concerns or opinions and thereafter make the decision and advise the Father via email of the decision made.
The proposals of Ms Carsten, Ms Paterson and the Independent Children’s Lawyer is for there to be no prior consultation with the Father, but for either mother to communicate with the Father any decisions made by them within 14 days of them so being made.
With the greatest of respect to the Father, his proposal is both impractical and unworkable.
The level of antipathy between Ms Carsten and the Father and Ms Paterson and the Father is such that there is no capacity for the kind of communication that the Father’s proposal would require.
Further, on any of the parties’ proposals, these mothers will be the overwhelming primary carers of their daughters and as such are best placed to be making these primary decisions for them.
It will be important however, that the Father is advised of the decisions made and the proposals of the mothers and the Independent Children’s Lawyer ensure that this will take place.
Accordingly, orders will be made for Ms Carsten to have sole parental responsibility for [X], for Ms Paterson to have sole parental responsibility for [Y] and for both of them to communicate any major decision they make in relation to either [X] or [Y] to the Father within 14 days of that decision.
Consideration of equal time or substantial and significant time
Where the parents have equal shared parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
Even when an order is not made for equal shared parental responsibility the Full Court in the matter of Goode & Goode [2006] FamCA 1346 held that the Court should still consider whether it is in the best interests of the child for equal time or significant and substantial time.
None of the parties in this matter are putting forward a proposal for equal time or significant and substantial time. It is appropriate that they are not doing so, given the circumstances of this case. As such, orders of that nature cannot be seen to be in the best interests of either [Y] or [X].
Conclusion
This is a particularly difficult and challenging case.
The Father has two daughters. His eldest, [Y], is eight and is the child of his relationship with Ms Paterson. [X], who is four, is the child of his relationship with Ms Carsten. Both [Y] and [X] live in their respective mother’s primary care and the question to be determined by this Court is what time should they spend with the Father in circumstances where there are aspects of his behaviour and personality that legitimately cause concern that they would be at risk if they were to spend unfettered time with him.
Ms Carsten makes allegations that [X] has been sexually abused by the Father. A consideration of all the evidence surrounding those allegations is such that there has been a finding that the Father has not sexually abused [X].
Counsel for the Independent Children’s Lawyer in closing submissions supported such a finding, as did Counsel for Ms Paterson. Even Counsel for Ms Carsten conceded that it was unlikely on the evidence that the Court could make a finding that the abuse had occurred.
It is submitted on behalf of the Independent Children’s Lawyer,
Ms Carsten and Ms Paterson that despite a finding that the Father has not sexually abused [X], the remaining concerns in relation to the Father and his functioning and the level of anxiety suffered by both [X] and [Y] around spending time with their father is such that this Court should make orders for [X] and [Y] to spend professionally supervised time with the Father and that given his evidence he cannot afford professional supervision, it be limited to being two hours four times per year at Contact Centre.
It is submitted on behalf of the Father that the concerns in relation to any risk the Father may pose to [Y] and [X] can be mitigated by orders being made for him to spend day time only each alternate weekend with [Y] and [X], that such time take place with either of the paternal grandparents being in substantial attendance, by the Father continuing to undergo regular supervised drug screens, by the Father fully and properly engaging with a psychiatrist or psychologist in a non-adversarial setting to work through and address the issues identified by both Dr O and Dr M in relation to his functioning and behaviours and the Father providing an irrevocable authority to that professional to notify Ms Carsten and Ms Paterson if he should cease his engagement with them against their professional advice.
It is Dr M’s evidence that if there is a finding the Father has not sexually abused [Y] or [X], [Y] and [X] should still only spend limited time with the Father because of the other risks that he poses. She lists those risks as being his drug use, her belief that his mental health has deteriorated in the time between when she saw him for the first family report and the second family report, that he has not sustained any of the learnings from the courses and treatment that he has received and because of the very poor judgment he has shown which would be risky for [Y] and [X] to be exposed to, exemplified by the Mr S incident.
Dr M also gives great weight to the impact that [X] spending more than the time recommended by her with the Father would have on Ms Carsten given her anxiety, hypersensitivity to what [X] says and her belief that the Father abuses [X]. Dr M’s evidence is that [X]’s exposure to Ms Carsten’s extreme anxiety and fears when [X] sees her father is such that this would create an unhealthy environment for [X]. It is Dr M’s evidence that regular contact with her father would put [X] on a rollercoaster of emotions which is not good for her and would be more damaging to her than losing her relationship with her father. This is especially so where Ms Carsten will remain [X]’s primary carer and she is otherwise meeting all of [X]’s needs.
Dr M is of the view that [Y] is currently experiencing a level of anxiety around spending time with the Father. [Y] is currently spending time with the Father on alternate weekends, which in Dr M’s view is too often. It is Dr M’s view that it is in [Y]’s best interests for the time that she spends with the Father to be reduced. This is particularly so as Dr M’s evidence is [Y] and the Father do not have a close relationship and [Y] would not experience any loss as a result of a reduction in her time with the Father. Dr M argues that like [X], [Y] would be relieved of the rollercoaster of emotion and anxiety that she currently experiences around the time that she spends with the Father.
I will consider each of the risks the Father poses identified by Dr M.
The Father’s drug use
The Father has a long history of illicit substance abuse going back to his teenage years. Whilst he describes his use as recreational, it is apparent from the evidence that there have been periods where that drug use has been much more than recreational.
To his credit, the Court is satisfied that the Father has been drug free for the last 18 months. This in part has been assisted by the CCO he was placed on following the burglary in September 2016, in part because he was required to undertake drug and alcohol counselling as part of that corrections order, in part because this litigation is ongoing and in part because the Father himself has made the decision that he wishes to be drug free.
The evidence of Dr O and Dr M is that someone with the Father’s lengthy drug history and personality style would need to show abstinence of much more than 18 months and absent the oversight of the Court before there could be confidence that he can remain drug free.
Further, the Father concedes that his drug use has worsened following extremely stressful periods in his life including when significant relationships have broken down, which was the case after he broke up with both Ms Paterson and Ms Carsten. The Father is currently in a relationship with Ms S and it is apparent they both see this as a long term commitment. If that relationship were to come asunder, there has to be a concern whether that would be a trigger for the Father to again use illicit substances.
The Father’s mental health
Dr M was most concerned about what she observed to be the Father’s mental health deterioration between the first family report and the second family report.
The Father offers some credible explanations as to why he did not present well to Dr M on the second occasion, including the enormous pressure he has been under as a result of Ms Carsten’s allegations he had sexually abused [X], that he was kept waiting many hours before he saw Dr M, that when he was notified by Dr M to attend for his appointment, he managed to get lost and arrived hot and sweaty in her rooms having had to run two blocks, and because the matters that Dr M wanted to discuss were not those the Father was anticipating. As a result he was very unsettled.
Dr M quite properly concedes that all those factors could have impacted on the Father’s presentation. However, the matter of major concern to Dr M was the Father’s inability to recall any of the learnings from the various interventions that he had undertaken in comparison to when she saw him the first time, shortly after he’d undertaken those courses. She was also very concerned that after discussing the Father’s treatment with his psychologist Ms A, the Father evidenced no understanding or benefit from that treatment.
Dr O, who undertook a complete psychological assessment of the Father, did not find he met any of the criteria for a diagnosis of personality disorder or psychopathy. It is Dr O’s belief that the Father has some underlying issues that go back to adolescence that need to be properly explored in a non-adversarial therapeutic setting if the Father is to fully address some of his more concerning behaviours.
Dr O also assessed the Father’s personality as being one where he desperately needs to present positively, something observed by all those who have encountered him, including whilst he was giving evidence in this matter. This raises a question about his ability to admit to some of his inappropriate behaviours.
The Father’s risk taking behaviours
The Mr S incident has been canvassed at length in this judgment and won’t be repeated again here. Suffice it to say, the Father’s response to this whole interaction is bizarre and has to raise concerns about his decision-making when confronted with difficult or challenging circumstances.
His drug taking, his only recent embracing of appropriate treatment for his adult ADHD and his foray into criminal behaviours must be and are matters of concern, as they are all elements of a propensity towards risk-taking behaviour.
When this matter came before the Court for the first time, I told the Father that if he expected to spend time with [X] outside of a strictly supervised setting, then he would need to stop using illicit substances, continue to engage with his mental health professionals and get his life back on track.
The Father has done everything the Court has asked him to do.
He has however, still managed to attract trouble, or as was put by Counsel for the Independent Children’s Lawyer: attract some degree of chaos. The Mr S incident and the questionable decisions about leaving Ms S’s children by themselves in the park at Town D are prime examples of this.
Conclusion as to risks posed by the Father
As and of their own, the Father’s concerning behaviours are not at a level where the risk to [X] and [Y] of spending time with the Father requires such limited supervised time as is proposed by the mothers, the Independent Children’s Lawyer and recommended by Dr M.
The matter does not however end there.
[Y] has for the majority of her life experienced her relationship with the Father through the close and loving relationship she has with her paternal grandmother. Until 18 months ago, [Y] happily went and saw her grandmother at least monthly, at times for entire weekends, during which time her father would spend time with her.
If these proceedings had not intervened, it is fair to say that that arrangement would have continued.
It is also apparent that Ms Paterson had real trust in the paternal grandmother to keep [X] safe until recent times when, inappropriately, the paternal grandmother let the Father take [Y] from her home. It would appear she did so because the paternal grandfather said it would be suitable.
Ms Paterson raises concerns about the paternal grandmother’s capacity to stand up to the Father and protect [Y] if he should become agitated. However, when the police came to arrest the Father following the burglary in October 2016 and when, on his own evidence the Father was seriously drug effected, the first thing the paternal grandmother did was ring Ms Paterson and ask her to come and pick up [Y].
A serious concern of Dr M is how Ms Carsten will respond to any orders that this Court makes for [X] to spend anything but very limited professionally supervised time with [X] given Ms Carsten’s belief that the Father has sexually abused [X] and will continue to present that level of risk to her.
It is Ms Carsten’s evidence that such is the level of Ms Carsten’s anxiety, [X] is and will continue to be fully cognisant of her mother’s anxiety and fear. This will place [X] on an emotional rollercoaster, to her detriment. Dr M’s view is that the lesser of two evils is for [X] to spend less time with her father so that her mother’s anxieties and fears are dramatically lessened and that her mother’s otherwise exemplary parenting can continue.
Whilst I accept Ms Carsten’s beliefs around the Father as being genuine, they are in part informed by her hatred of the Father and she therefore has a willingness to automatically assume the worst of the Father for incidents that could otherwise have an innocent explanation. Ms Carsten exposes [X] to her beliefs and in so doing makes [X] feel that she has done something wrong. To expose [X] to questions that leave [X] in no doubt what her mother wants her to say about her father, results in [X] starting to believe, as her mother does, that there is something wrong with her father and his behaviours towards her. This cannot be seen to be in [X]’s best interests.
Left to their own devices, I am of the view that both [X] and [Y] would choose to have a relationship with the Father and that they would enjoy that relationship. At the commencement of these proceedings [X] was quite clear that she loves her dad. [Y] told DHHS that she loves her dad and he is good fun. The intervening 18 months have caused both these girls enormous anxiety around the Father and whether they should have a relationship with him. That is not in their best interests.
At the same time, the Father is a flawed character. His history of drug use, his multiple relationships, the consistent reports of those who have been in a relationship with him that he is charming when agreed with and abusive when not, his unusual personality style, his flawed decision making and his inconsistent parenting particularly of [Y] are all matters of real concern.
However, I am not of the view that the Father presents such a level of risk to [Y] and [X] that they should be limited to only spending time four times a year for two hours in a professionally supervised setting in order to protect them from those risks.
I am of the view that [Y] and [X] should be spending regular time with the Father. This time should not be at the current level of alternate weekends as that level of interaction is too stressful for both [Y] and [X] at this time. It is also too stressful and anxiety-provoking for Ms Paterson and particularly Ms Carsten.
That the time between the Father, [Y] and [X] will need to be supervised in the medium term is not challenged. Frankly, the Father has a long way to go before he would be able to satisfy this Court and more particularly Ms Paterson and Ms Carsten that the journey he has commenced in bettering himself has sufficiently progressed such that unsupervised time would be suitable.
Given that supervision is not available through Contact Centre on an ongoing basis and professional supervision is not either practically or economically viable on a long-term basis, the real question therefore for this Court is whether the Father’s time can be adequately supervised by the paternal grandparents and the paternal grandmother in particular.
Dr M quite properly identified the factors that need to be considered as to whether the paternal grandmother has the capacity and ability to properly supervise. Firstly, she needs to be able to recognise whether the Father is presenting inappropriately, secondly she needs to be prepared to report any inappropriate behaviours of the Father and thirdly she must be able to intervene if the Father is behaving inappropriately. By way of example, Dr M posed the question, if the Father were to attend to spend time with [Y] and [X] substance affected, or in an angry or aggressive mood, would the paternal grandmother recognise he was drug affected, report that he presented in that way to [Y] and [X]’s mothers knowing it would impact on his time with the girls and would she be able to intervene if he was in this state.
It is apparent from the paternal grandmother’s evidence that she loves her son, is very supportive of him, is desperate for him to have a relationship with his daughters, is horrified by the allegations that were made that he had sexually abused [X] and genuinely believes that they were false. She was ignorant of the extent of her son’s drug use.
The paternal grandmother’s evidence is she would struggle to spend time with [Y] and [X] if the Father was not allowed to do so. It is her further evidence that if [Y] and [X] were spending time with her in circumstances the Father was not to attend, she would struggle to send him away as [Y] and [X] love him and would want to see him.
If orders were made for [Y] and [X] to spend time with the Father and that the paternal grandparents or either of them were to supervise that time, I am satisfied they would take that role seriously and abide by the Court’s orders. I am satisfied they have properly done so in the past. Because [Y] and [X] will be spending time with the Father and not the paternal grandmother alone, the paternal grandmother’s conflict of her relationship with [Y] and [X] being ahead of the Father would not be in issue.
Dr M and Ms Paterson both raise concerns that the paternal grandmother in particular would not be able to control the Father in the event he were to attend time with [Y] and [X] in a drug affected or aggressive state. The only time the Father is known to have been at the paternal grandparents home in this state was when the Father was arrested by police in October 2016. The paternal grandmother’s immediate response was to ring Ms Paterson and ask her to collect [Y].
Whether the Father was drug affected in November 2016 when the paternal grandparents allowed him to take [Y] on his own in his car from the paternal grandparents’ home is in dispute. In allowing him to do so shortly after he had been released from jail for serious drug related criminal matters and knowing Ms Paterson had specifically requested they not permit this, showed a serious lack of judgment on their part. What is clear however is that this only occurred because, in this circumstance, the paternal grandfather permitted it to happen. It was not a circumstance where the paternal grandparents objected to the Father taking [Y] and he overrode their objections.
It is the paternal grandmother’s evidence, as it was of the paternal grandfather that they would abide by any orders that this Court made. They also both gave evidence of a willingness to better educate themselves about drug use and the impact of drugs on the users of those drugs.
The paternal grandparents impressed as loving and devoted grandparents who would not knowingly place their grandchildren at risk. I am satisfied that if the Father were to present in a drug affected or aggressive state they would not allow him to spend time with [Y] and [X] in that condition and would, particularly if ordered by the Court to do so, ring [Y] and [X]’s mothers to immediately collect [Y] and [X].
It is Dr M’s concern that the paternal grandparents may fail to so contact [Y] and [X]’s mothers if the Father was to attend drug affected or in an aggressive state as it could impact on their and the Father’s time with [Y] and [X]. I do not share that concern. Given [Y]’s age, her level of maturity and her very close relationship with her mother, if the Father was to present in a drug affected or aggressive manner and the paternal grandparents allowed time to take place and did not contact the mothers, [Y] would tell her mother. It would be the failure by the paternal grandparents to ensure [Y] and [X]’s safety and comply with the Court orders that would impact on their and the Father’s time with [Y] and [X].
I am therefore satisfied that the paternal grandparents can suitably supervise time between [Y], [X] and the Father and particularly so when subject to the safeguards set out in this judgment.
Having considered all the evidence placed before the Court, I have formed the view that the orders proposed by the Independent Children’s Lawyer, Ms Carsten and Ms Paterson are not in the best interests of [X] and [Y] when balancing their entitlement to have a relationship with their father against the necessity to protect them from the risks that the Father poses.
I am of the view that [Y] and [X] should be able to spend time with their father safely, but with a degree of regularity that enables them to have more than just a passing or identifying relationship with them.
[Y] and [X] should be allowed to know that their father loves them and experience that love first hand in a safe and nurturing environment.
I have therefore formed the view that orders should be made for [Y] and [X] to spend time with the Father on the last Sunday of each month from 12:00 noon until 5:00pm save for the month of August when time will take place on Father’s Day instead. This means [Y] and [X] will spend time with the Father on 12 occasions per year which is a marked reduction in the time [Y] and [X] spend with the Father at this time. This reflects Dr M’s recommendation that [Y] and [X]’s time with the Father be reduced to lessen their and their mothers’ anxiety around time with the Father, but still enables them, I believe, to maintain a meaningful relationship with the Father.
In her second family report Dr M recommended that if the allegations of sexual abuse were not substantiated, [X] should spend regular formally supervised time with the Father being roughly two hours every four weeks. Dr M also recommended [Y] spend supervised time with the Father every six weeks.
Dr M when giving her viva voce evidence did not resile from these recommendations. Rather, she reinforced the need for the time [Y] and [X] spend with the Father to be reduced from its current level because of the anxiety that frequency of time was causing [Y] and [X], and to assist Ms Paterson and particularly Ms Carsten to better manage their anxiety about [Y] and [X] when spending time with the Father.
Dr M properly notes the assessment of the paternal grandparents as suitable supervisors of [Y] and [X]’s time with the Father was a matter for the Court, particularly given she has not interviewed either of them. Her evidence is that if the paternal grandparents are deemed to be suitable supervisors then the identified risks the Father poses can be addressed by them supervising the Father’s time with [X].
The proposal of the Independent Children’s Lawyer is for [Y] and [X] to spend time with the Father at least every six weeks and no more than once a month on the basis this time is professionally supervised.
Ms Carsten’s Counsel in closing submissions advised that Ms Carsten supported the Independent Children’s Lawyer’s proposal.
Ms Paterson’s proposal is for [Y] to spend time with the Father at least four times per year but no more than every six weeks, such time to be professionally supervised.
Dr M, the mothers, the Father and the Independent Children’s Lawyer are all in agreement that [Y] and [X] should spend time with the Father together.
It is therefore apparent that the frequency with which [Y] and [X] are to spend time with the Father pursuant to the orders being made by the Court in this matter is not markedly different to that proposed by the mothers and is within the parameters of that suggested by Dr M and the Independent Children’s Lawyer.
Given the Court is satisfied the paternal grandparents can suitably supervise time between [Y], [X] and the Father, this time is to take place at the home of the paternal grandparents and is to be fully supervised by either of the paternal grandmother or the paternal grandfather subject to the requirements set out in paragraphs [702] to [710] herein.
For the next 18 months, in the week prior to time taking place between [Y] and [X] and the Father, the Father is to undertake a supervised drug screen and produce the results of same initially to the Independent Children’s Lawyer, who I will request remain in place for the next 12 months and thereafter to the mothers or their legal representatives if they still have them.
If the Father fails to undertake the drug screen or the drug screen is positive for anything other than dexamphetamine or any other legally prescribed medication, the Father’s time with [Y] and [X] will be suspended until such time as the Father produces three months of clean drug screens.
The paternal grandparents will be required to provide a written undertaking to the Court that they will fully supervise all time between the Father and [Y] and [X].
The orders will also provide that when [Y] and [X] are spending time with the Father he is not permitted to toilet them, go swimming with them or at any time be left alone with them. If the Father should attend the paternal grandparents’ home to spend time with [Y] and [X] in a drug affected or aggressive state they are not to allow time to take place and shall return [Y] and [X] to their respective mother’s care.
The paternal grandparents will also be required to undertake training on the impact of illicit substances, including identifying signs that someone is drug affected. The Independent Children’s Lawyer will be requested to recommend an appropriate course.
The Father will be ordered to fully engage in ongoing therapeutic intensive personal counselling with Ms A or such other therapist as recommended by her and the reports of Dr O, Dr M and this judgment are to be provided to the Father’s therapist in order for there to be a full understanding by that therapist as to why the Father is attending.
The Father will also be ordered to continue to attend upon Dr T, psychiatrist, or such other psychiatrist as nominated by her, for the ongoing treatment of his adult ADHD and to follow all reasonable directions of his treating psychiatrist.
The Father will be ordered to provide an irrevocable authority to his therapist and to his treating psychiatrist that they are to advise Ms Carsten and Ms Paterson in the event the Father should discontinue to engage with them against their recommendation he continue to do so.
As has been canvassed in this judgment, [X] is fully aware of Ms Carsten’s dislike of the Father, her belief the Father has abused her and her heightened anxiety when she spends time with the Father. Dr M explains [X]’s increased anxiety around spending time with the Father as a response to [X] picking up Ms Carsten’s anxiety
Dr M describes the impact of this on [X] as putting her on an “emotional roller coaster” which is not and cannot be in her best interests. In order to lessen [X]’s “emotional roller coaster”, Dr M recommends there be a reduction in the time [X] spends with the Father.
Dr M also recommended that if the Court found the Father did not sexually abuse [X] and formed the view [X]’s best interests were met by her spending time with the Father outside that proposed by Ms Carsten, Ms Carsten will need professional therapeutic counselling from a practitioner with an understanding of family law, the Court orders and [X]’s behaviour to assist her to move forward.
Accordingly, Ms Carsten will be ordered to obtain counselling from a suitably qualified psychologist with expertise in family law matters to assist her in managing her anxiety and distress about these orders, to understand the importance to [X] of allowing [X] to have a loving and meaningful relationship with the Father and the impact on [X] if she fails to do this and continues to expose [X] to her fears, anxieties and hatred of the Father.
The Father seeks orders in relation to being able to attend school events and extra-curricular activities. Whilst having some sympathy to that proposal, I am concerned about how this would distress [Y] and [X] given the antipathy felt by their mothers towards the Father and the potential for conflict that could arise if they should be at the same event. I believe school should be a place free from parental conflict.
The Father will however be permitted to receive all relevant information from [X] and [Y]’s schools and to attend for a parent-teacher interview if that can be arranged after school hours and at a different time to that of [Y]’s and [X]’s mothers.
There has to be a real concern about the impact on [Y] and [X] of any future litigation and I am therefore persuaded that an order should be made pursuant to section 64B(2)(g) of the Act that any future application by the Father for a variation of these orders will be subject to the Court being satisfied that he has addressed the issues that have been raised in this judgment and have led to the orders that are being made this day.
I certify that the preceding seven hundred and sixteen (716) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 19 October 2018
I, Ms D/Ms N of [address] hereby undertake in my capacity to supervise MR MACKAY, my son’s time with his daughter [X] born 2013, note for the Court: 1. The allegations of sexual misconduct towards Mr Mackay and otherwise allegations of impropriety during the time he spends with [X], are serious and of concern to all involved; 2. That [X] has suffered from a serious vaginal rash and thrush supposedly during the time she has spent with Mr Mackay; 3. That [X] was discovered to have “tightly rolled up tissue” in her underwear in or about August 2017; and 4. That [X] talks of “magic” and her father having “secrets”.
In my role as supervisor I shall: 1. Remain with [X] at all times unless she is with Ms D/Ms N; 2. I will not allow Mr Mackay and [X] to spend any time without me (or Ms D/Ms N) by [X]’s side; 3.I, or Ms D/Ms N, will be the only persons who take [X] to the toilet and help her with that task; 4. If [X] needs a change of clothes I alone, or Ms D/Ms N, will assist her to undress and dress; 5. In the event of an emergency, I will or I will arrange for another person (not Mr Mackay) to contact the Mother to immediately collect [X]; 6. Ensure that [X], or any other person permitted to attend during the time, not denigrate her mother MS CARSTEN; 7. Terminate the time if Mr Mackay becomes angry or distressed or appears to be drug affected or is sighted taking any illicit substances; 8. Ensure that no mention is made of these court proceedings or alternate time spent with arrangements in the presence of hearing (sic) of [X].
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Duty of Care
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Remedies
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Procedural Fairness
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Standing
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