Malak and Mairie

[2009] FamCA 268

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE [2009] FamCA 268

FAMILY LAW  -  CHILDREN  -  application filed six months after final parenting orders made  -  new facts and circumstances  -  allegation of sexual abuse  -  allegation determined in earlier trial  -  best interests of children require reconsideration  -  orders varied

Family Law Act 1975 (Cth) ss 60B(1), 60CC, 60CC(1), (3), (4) and (4A), 61DA, 65DAA(1), (2), 69ZX(3), Part VII, Division 12A
Evidence Act 1995 (Cth) s 240(2)
Family Law Amendment (Shared Parental Responsibility) Act 2006

Hemiro & Sinla [2009] FamCA 181
Moose & Moose [2008] FamCAFC 108
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
In the Marriage of McEnearney (1980) FLC 90-866
In the Marriage of F & N (1987) FLC 91-813
In the Marriage of D & Y (1995) FLC 92-581
In the Marriage of Newling & Mole (1987) FLC 91-856
Miller & Harrington (2008) FLC 93-383

FATHER: Mr Malak

MOTHER: Ms Mairie

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1793 of 2005

DATE DELIVERED: 8 April, 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BROWN J

HEARING DATE: 15-17 December, 2008;  16 January and 19 - 20 March, 2009

REPRESENTATION

THE FATHER: In person

COUNSEL FOR THE MOTHER: Mr. Laidlaw

SOLICITOR FOR THE MOTHER: Rigoli & Associates

COUNSEL FOR THE I.C.L. Ms. Spehr

INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That paragraphs (2), (4) and (6) of the orders made herein on 26 June, 2006 be discharged.

2. That the children C born … April, 2000, and twins D and E born … May, 2004 live with the mother and she have sole parental responsibility for them.

3. That the father’s application to spend time and communicate with C be dismissed save that C be at liberty to communicate with the father by cards/ letters or telephone, initiated by her.

4. That the orders made on 23 January, 2008 which provide for D and E to spend time with the father be discharged.

5. That D and E spend time with the father as follows, and in these orders a reference to Y Centre is a reference to the supervised changeover facility offered by Y Centre:

   (a)for five hours on Saturday 16 May, 2009 between 10:00 am. and 3:00 pm. or such other times as can be accommodated by Y Centre;

   (b)for six hours on Saturday 18 July, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by Y Centre;

   (c)for six hours on Saturday19 September, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by Y Centre;

   (d)for seven hours on Saturday 21 November, 2009 between 10:00 am. and 5:00 pm. or such other times as can be accommodated by Y Centre;

   (e)on the third weekend in January, March, May and July 2010:

   (i) from 10:00 am until 5:00 pm. on Saturday, or such other times as c an be accommodated by Y Centre; and

   (ii) from 10:00 am. until 5:00 pm. on Sunday or such other times as can be accommodated by Y Centre;

   (f)on the third weekend in September and November 2010, from 10:00 am. on Saturday until 5:00 pm. on Sunday or such other times as can be accommodated by Y Centre;

   (g)from 10:00 am. on 4 January, 2011 until 5:00 pm. on 8 January, 2011;

   (h)on the fourth weekend in each school term in 2011, from 10:00 am. Saturday until 5:00 pm. Sunday;

   (i)for five days and four nights in the first term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

   (j)for six days (including five nights) in the second term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

   (k)for eight days (seven nights) in the third term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

   (l)for ten days (nine nights) in the summer school holidays in January 2012 at times to be agreed and, failing agreement, to commence at 10:00 am. on 4 January, 2012 and conclude at 5:00 pm. on 14 January, 2012;

   (m)thereafter:

   (i)for one half of each school term holiday period at times to be agreed and, failing agreement, the first half;

   (ii)for two weeks in each summer school holiday period at times to be agreed and, failing agreement :

   a. commencing on Christmas Eve in 2012 and each alternate year   thereafter; and

   b. commencing 9 January, 2014 and each alternate year thereafter;  and

   (iii)at such other times as are agreed between the parties.

6. That commencing in 2010, the father communicate by telephone with D and E on alternate Sundays at 5:00 pm. and the mother do all things reasonably necessary to facilitate D and E receiving those calls and keep the father advised of a telephone number on which he can telephone D and E.

7. That changeovers for time pursuant to paragraphs (5)(a) to (f) and (5)(h) hereof be supervised by Y Centre. 

8. That the father’s time with D and E pursuant to paragraphs (5)(a) to (e) hereof take place in the vicinity of N.

9. That the father’s time pursuant to paragraphs (5)(f) and (h) hereof take place in the vicinity of N or within a radius of forty (40) kilometres of N.

10. That time pursuant to paragraph (5)(g) hereof and all time pursuant to paragraphs (5)(i) to (m) hereof take place at the father’s home or such other place as he determines.

11. That the father be responsible for the costs of D and E’s travel to his home or such other place at which he spends time with them pursuant to these orders, including the costs of any accompanying person in the event the children need to be accompanied when flying.

12. That if D and E are to travel by air, the mother be responsible for delivering the children to, as the case may be, Avalon Airport or Tullamarine Airport, at the commencement of a period of time with the father and collecting them there at the conclusion of a period of time with him. 

13. That if D and E are to travel by car to the father’s home or such other place as he spends time with them, the father collect and return them to a place agreed between the parties and, failing agreement, outside the N Police Station.

14. That the mother keep the father advised in writing of:

    (a)the residential address of the children;

    (b)the school or schools attended by the children;  and

    (c)a telephone number at which she can be reached in an emergency;  and

    advise him forthwith, by telephone, of any significant illness or accident suffered by D or E when in her care.

15. That the father keep the mother advised in writing of :

    (a)his residential address;  and

    (b)a telephone number at which he can be reached in an emergency;  and

    advise her forthwith, by telephone, of any significant illness or accident suffered by D or E when in his care. 

16. That the father be at liberty to send cards and small gifts to C, D and E by post on their birthdays and at Christmas and Easter and the mother ensure any such cards and gifts are delivered to the children.

17. That the father be at liberty to obtain, at his expense (if any) :

    (a)a copy of each school report for C, D and E;  and

    (b)a copy of each order form for school photos of C, D and E;

    and this order shall stand as authority to the principal of each school attended by C, D and E from time to time to comply with such requests. 

18. That save with the written consent of the mother, the father be and is hereby restrained from attending at any school attended by C from time to time, unless D and/or E also attend that school, and then only pursuant to paragraph (19) hereof.

19. That from 2011 the father be at liberty to attend a school attended by D and/or E for an event, activity or function routinely attended by parents PROVIDED THAT save with the consent in writing of the mother, he not remove D or E from such school.

20. That as soon as practicable the mother provide a sealed copy of this order to the principal of each school attended by C and, in due course, D and E. 

21. That each of the parties by themselves, their servants and agents be and are hereby restrained from discussing the evidence adduced in these proceedings and the judgment herein in the presence or hearing of C, D or E. 

22. That the independent children’s lawyer be discharged one month this date or, in the event a Notice of Appeal is filed, on determination of the appeal. 

23. That a copy of the reasons for judgment herein may be provided to :

    (a)Mr. S;

    (b)Y Centre;

    (c)Ms T;  and

    (d)the Department of Human Services and any DHS employee or member of a police force investigating any subsequent allegation which involves C, D or E.

24. That all extant applications be otherwise dismissed.

25. That these proceedings be removed from the List of matters awaiting finalisation.

26. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

27. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1793 of 2005

MR MALAK

Father

And

MS MAIRIE

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Ms Mairie (“the mother”) and Mr Malak (“the father”) have a daughter, C, born in April, 2000 and twin sons, D and E, born in May, 2004.  When their parents separated in May 2005 C was five and the twins were a few days short of their first birthday.

2. On 11 May, 2005 the mother left the parties’ home with the children, without advice to the father, and drove to Melbourne, which was the home of her mother.  The father learnt of their whereabouts and, a fortnight later, drove to Melbourne and, having asked to see C, bundled her into his car and returned with her to Adelaide.  The mother sought a recovery order and C was returned to the mother within a couple of days.  The father sought and obtained an order requiring the mother to return the children’s residence to Adelaide and by June 2005, within a month of separation, the parties were engaged in acrimonious litigation in Adelaide.  In that litigation the mother alleged that the father had sexually abused C, physically abused her and the children, accessed child pornography and was emotionally abusive. She sought to relocate the children’s residence to Victoria and that they have no contact with their father. 

3. The father initially sought residence of the children but did not press that application.  He did oppose their relocation to Melbourne and sought contact with them.  By the time a sixteen day trial concluded and Murray J. delivered judgment on 26 June, 2006, he did not pursue contact with C but did seek to spend time with the twins. 

4. By orders of 26 June, 2006, Murray J granted the mother’s application to relocate.  The three children were to live with the mother.  The father, still resident in South Australia, was to have infrequent, supervised time with D and E.  His applications for residence and contact with C (neither of which had been pressed before Murray J) were dismissed.  He was ordered to complete a parenting course prior to commencing supervised time with his sons.

5. The father’s time with D and E was to commence on 16 September, 2006, subject to him completing a parenting course.  In an undated letter from the father to the child representative in the Adelaide proceedings, received by the child representative on 23 October, 2006, the father advised that he had completed an application form for Y Contact Centre, located in N, and enclosed the form and a certificate of completion of a parenting course.  He raised concerns about Y Centre’s capacity to accommodate only a two hour block of time (as opposed to the three hours for which the orders provided), given that the round trip to see D and E would take some eighteen hours.  He asked the child representative to intervene with the contact centre and see if it could be persuaded to accommodate a three hour visit.  The letter continued :

   I feel if this is not possible then the next step will be to go back to court to have the orders revised.  I am not trying to be difficult but as I pointed out earlier every two months would be just too expensive and a very long trip just to see the kids for 2 hours.  I am also aware that [Y Centre] can only accommodate supervised visitation for a period of twelve months.  I will going back to court within the next twelve months to have contact orders changed so I do not see this as a problem.

6. On 31 October, 2006 the child representative forwarded a copy of the letter to the mother with advice that he considered his duties discharged. 

7. The mother’s evidence was that it was this letter which prompted her to bring an application in the Melbourne registry of the court on 22 December, 2006, in which she sought the discharge of the orders made by Murray J less than six months earlier.  In lieu, she sought that the children live with her, that she be solely responsible for their long term care, welfare and development and that the father’s contact with them be reserved. 

8. While the prospect of the father taking enforcement proceedings, or proceedings to vary the orders, may have been a factor in the mother’s decision to file an application, I am satisfied it was not the principal motivation.  When the mother returned to Melbourne after Murray J’s judgment, she took C to the Gatehouse Centre where she commenced an assessment in respect of the alleged sexual abuse.  On 14 December, 2006, Ms T, a social worker at Gatehouse, wrote a report in which she stated that after an initial assessment over eight sessions with C, C disclosed oral, anal and penetrative sex perpetrated on her by her father over a number of years.  Of equal concern to Ms. T were the frequent disclosures of significant and unpredictable physical abuse which C alleged had occurred.  Ms. T noted that C was continuing weekly sessions as part of her long term treatment plan.  She expressed a “strong recommendation” that neither C nor her twin brothers have any form of contact with their father. 

9. By the time that letter was written, the mother had made no attempt whatsoever to comply with Murray J’s orders.  The mother admitted that she was contacted by Y Centre on multiple occasions in late 2006 “to push the issue of the supervised contact to take place between the father and the twins”.  Cross-examined, the mother said it was “inconvenient”, because she had told Y Centre that there would be no supervised contact.  She had not completed any application form or been for an intake interview when Ms. T provided her with the report of 14 December, 2006, addressed “To whom it may concern”.

10. From the mother’s perspective, Gatehouse had given her what Murray J’s judgment had not, which was proof (in her eyes) that C had been sexually abused.  Armed with that proof, she sought to achieve what she had failed to achieve before Murray J, which was no contact at all between the father and the twins. 

11. It is the mother’s application filed 22 December, 2006 and the father’s response to it which this court is asked to determine. 

EVIDENCE

1. Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses.  In what follows, statements of fact constitute findings of fact.

2. The mother is 38 and is employed at a call centre, working Monday to Friday.  For a period she worked on a Saturday, which was her rationale for cancelling a contact visit in March 2008.  She presented as composed, even glib, but a sense of repressed anger permeated her evidence.  She was relentless in her campaign to prove the father sexually abused C and should see none of the children and I am satisfied she was prepared to do and say anything to achieve those aims. 

3. The mother did not, as she swore, give a copy of Murray J’s judgment to Ms. T;  Ms. T received a copy from the ICL, with a letter dated 12 April, 2007.  In her affidavit filed with the initiating application, the mother took the position that abuse was neither confirmed nor disproved by Murray J and that “provisions were made in the orders if the abuse was established at a later date”, an objectively absurd proposition.  I have no doubt that she believed she could stop the father seeing D and E if she could prove he had abused C, and was determined to achieve that aim. 

4. The mother failed to advise the father of the children’s residential address, as required by Murray J and effectively blamed her solicitors for the breach.  She told Ms. T that the father had sexually abused all the children, despite the fact no allegation had ever been made at that time of any sexually inappropriate behaviour with D or E.  She blamed C for telling the twins the father was going to put her in jail, despite C clearly telling Mr. S that her mother told her that.  She maintained her view that the father does not love the children and is not interested in them, and if he gets what he wants will “walk away”, despite his attendance at contact on every occasion since Murray J’s orders were made.  She believes the father is capable of killing the children to punish her;  pressed, she referred to him killing them “accidentally, in a car collision”.  I am satisfied she invented an allegation that the father took a photograph of D’s penis when spending unsupervised time, in a transparent attempt to undermine the father’s relationship with the twins.  A court could have no confidence in her capacity for objective recollection or her commitment to telling the truth. 

5. The maternal grandmother is the mother’s mother.  She gave evidence before Murray J, who was critical of her.  In these proceedings the father alleged that she physically disciplined the children inappropriately;  she admitted that she did smack the children lightly on the back of the legs on occasions.  She looks after D and E on occasions when their mother is at work.  I place little weight on the maternal grandmother’s evidence of disclosures allegedly made by C, a continuation of the evidence which Murray J did not accept.  Her support for her daughter has not waned since that trial and it is unlikely she will intervene to stop her daughter interrogating the children and soliciting evidence to stop their time with their father. 

6. The father is 39.  He met Mrs Malak (“the stepmother”) in December 2006 and they commenced a relationship in February 2007.  Their daughter, K, was born in June, 2008 and they married in November, 2008.  They live in a large home in regional New South Wales, having moved from Sydney soon after their marriage.  The father does IT work;  much of the work is done from his home but it does involve attendances on customers at their homes, within about an 80 km. range.

7. Although Murray J found some inappropriate sexual play with C, her clear finding was that the father had not (as the mother alleged) vaginally or anally penetrated C or masturbated in her presence or placed his penis in her mouth.  It is unsurprising that a man who has been accused of that behaviour, and (in his eyes) vindicated by judicial findings, would be hostile to the person who made the allegations and the father’s distrust of and disdain for the mother was apparent.  He was focussed on his rights and his entitlements and was prepared to jeopardise the relationship with Y Centre – the linchpin of his time with the boys – in order to take his perceived entitlements.  However explicable, his pursuit of evidence by interrogating the twins in 2008 was itself a form of harassment, and implicated them (as their mother did, too) in the parental conflict.

1. The father tended to present as facts assumptions made by him, on slim evidence, which were factually untrue.  An example is his evidence of receiving a letter from Mr. S which advised he should ensure D and E met the stepmother, and K, prior to the family report appointment in July 2008.  No reading of the letter on which he relied could support that interpretation. 

2. The father has conscientiously travelled at two monthly intervals to see D and E.  I do not doubt his commitment to do whatever is necessary to develop his relationship with his sons and start to see C;  I find no substance in the mother’s opinion that he neither loves nor cares about the boys.  His initial holiday proposals (involving the children spending no term holiday times with their mother) lacked insight but he made it clear he would accept whatever arrangement the court ordered. 

3. It is probable the father assesses all evidence referrable to the mother through a lens of hostility and suspicion and his recollection of events is coloured by that.  Nevertheless, I am satisfied he did his best to tell the truth as he now recalls it and find him a more reliable witness than the mother.

4. The stepmother was an impressive witness;  she made appropriate concessions, answered questions directly and without qualification and presented as a thoughtful woman.  I find her a witness of truth.  She told the court:  “I won’t lie for him (the father)” and I accept that is her position.

5. The stepmother was married for many years to Mr P, with whom she has four children.  Their oldest son, V, is fifteen.  He has had a turbulent time since his parents’ separation and was sufficiently aggressive to his mother, siblings and the father to warrant a magistrate granting an application for an apprehended violence order in 2008. For some time he lived with his father and with others but he returned to live with his mother, siblings and the father on 17 December, 2008, has returned to school and, his mother deposed, is happier and more stable.  He faces a charge of breaching the apprehended violence order;  the conduct constituting the alleged breach occurred well prior to his return to live with his mother.

6. After separation Mr. P revealed his homosexuality, a revelation that, to use the stepmother’s words, “mixed up the kids’ heads”.  It is probable her relationship with Mr. P had been marked by violence, that he disliked the father, that his changed sexual preferences and lifestyle were difficult for his children to accept and that it took some time, and a good deal of acrimony, before he and the stepmother were able to agree on parenting their children after separation.  Her move, with the father, to regional New South Wales was designed to put some distance between her and Mr. P, while being close enough to facilitate a shared parenting routine with their three younger children, A (13), L (10) and B (8).

7. The stepmother is employed as a personal care assistant, working six, ten hour shifts in one week and having the next week off.  The three younger children are with their father in the week in which she is in paid work.  Her evidence was that her family life is a lot calmer and more stable since the move in late 2008 and that L and B’s academic difficulties are settling. 

8. Ms. N is the manager of the Children’s Contact Service at Y Centre and prepared a report dated 9 November, 2008.  Since that report was written Y Centre has supervised two more visits, the first on 15 November, 2008 and the second on 17 January, 2009.  Ms. N explained the constraints under which Y Centre operates and the difficulty the service had, on occasions, in accommodating the period of time referred to in the orders (three hours of supervised time) and changeovers for unsupervised times.

9. Despite the father’s behaviour on 19 July, 2008, to which I will refer later, Y Centre decided to continue to provide a service to the family;  Ms. N’s evidence was that the father had never displayed any aggression to workers or the children and that having regard to the consistency and quality of his relationship with the children, the centre decided to maintain its service. 

10. Ms. N’s evidence was that while Y Centre would continue to offer a service if the court requested, it “can’t do it forever”.  In theory there is a twelve month limit on supervised contact and no limit on the provision of supervised changeovers.  In the circumstances of this case Ms. N made it clear that Y Centre would be happy to provide a supervised service for another six or twelve months. 

11. Ms. N’s evidence was that the mother was always courteous and cooperative with workers and was punctual.  The father was late on occasions and save for the incident in July 2008, was also courteous and cooperative.  Even on that occasion he did not raise his voice or act in an aggressive way;  he simply stated his position and that he intended to act on it, regardless of the consequences. 

12. Ms. T is a social worker employed at Gatehouse.  I will refer to her evidence in more detail later.  It is probable she identified swiftly and completely with the mother’s stated position and was keen to adduce evidence supportive of it while ignoring any evidence to the contrary.  It is very unfortunate that she did not read Murray J’s judgment;  if she had done so, she would have known of the medical examinations and interviews by police and protective workers in South Australia to which C had already been subjected.  I cannot find her an impartial witness.  The opinions she expressed were based on a significantly flawed history and I do not place weight on them.

13. Mr. S is a social worker who prepared a family report which was released on 28 August, 2008, having met with the parties and children on 21 July, 2008.  His experience includes a period with DHS working in child protection, in the course of which he received training relating to cases involving sexual abuse and worked with families in which such allegations were made. 

14. Mr. S spoke with C and let her join in the session in which the father spent time with D and E.  I am satisfied both decisions were sound.

15. Mr. S made it clear that his was not a forensic assessment.  He saw C only once and the recommendations he made were based on the quality and strength of the relationship he observed between her and her father, and her choice to be involved with him.  Mr. S did not know that the father’s application to spend time with C had been dismissed by Murray J or of the extent of her findings about the “doubtful play” between the father and C.  He said he did not “wish now to venture an opinion” about the issue of sexual abuse, given that he was either unclear about the legal issues or had made a mistake about them.  His report, and his evidence, needs to be considered in that context. 

PROPOSALS

1. The mother’s case was conducted on the basis that the father should have no time with either C or D and E.  However, in final submissions she proposed a continuation of the existing orders relating to D and E, which provide for three hours of supervised time, followed by two hours of unsupervised time, every two months.  The submission did not engage with the practicalities of the proposal.  The evidence from Y Centre was of an ability to provide a supervised service for only some six to twelve months, which means that by late 2009 or early 2010 another alternative would need to be found.  As importantly, the submission did not consider the viability (or lack of it) of long term supervision.

2. The ICL drafted a proposal which was provided to counsel for the mother and to the father prior to final submissions commencing.

3. The ICL submitted that there were no new facts or circumstances which would justify changing the situation in relation to C.  The court should not make any orders providing for her to spend time or communicate with her father. 

4. In relation to D and E, the ICL proposed a four phased regime.  Phase one would operate for the balance of 2009.  In May and July the father should spend four hours of unsupervised time with D and E, extending to six hours on one day in September and November.  All changeovers would be at Y Centre. 

5. In the second phase, D and E would spend time with their father in each second month, from 10:00 am. to 4:00 pm. on Saturday and 10:00 am. to 4:00 pm. on Sunday.  On the last such weekend in 2010, the boys should be with him on Saturday until 4:00 pm. on Sunday;  that is, a first overnight stay. 

6. In the third phase, D and E should spend four days and three overnight periods with their father in the January school holidays.  In the first term holidays they should spend four nights and five days with him;  in the second school term holiday period, five nights and six days;  in the third school term holiday period, seven nights and eight days.  The holiday time would be conditional on the father coming to Melbourne for one weekend in each school term, and spending time with D and E from 10:00 am. Saturday until 4:00 pm. Sunday. 

7. In the final phase the ICL proposed that D and E spend ten days with their father in the summer school holidays in January 2012 and, thereafter, two weeks in each long summer holiday period.  They should spend half of each school term holiday with him.  While orders could provide for him to see the boys in Melbourne in mid-term, that would not be a requirement.

8. The ICL proposed telephone contact on alternate Sundays at 5:00 pm. from the beginning of 2010.

9. Having been advised of the ICL proposal, the father did not take issue with it as it related to the boys.  He submitted that C should spend time with him and that he was content for their initial time together to be supervised.  He proposed that after twelve months of supervised time, another report should be prepared and the court should determine whether unsupervised time with C would be appropriate.  The father made it clear that C’s “wishes should be honoured” if she did not want to see him on any given day.

10. As the orders he proposed for C would involve him travelling to Y Centre each second month to spend supervised time with her, the father proposed that the unsupervised time with D and E follow these periods of supervised time with C for the next year.  That is, he did not seek to have D and E come to spend time with him in regional New South Wales during the period in which he envisaged driving to N each second month to see C at Y Centre.

11. In the course of final submissions, the ICL made some enquiries of Y Centre.  All parties agreed that the advice of Y Centre’s availability to supervise changeovers be treated as part of the evidence.  Y Centre provides a changeover service between 9:00 am. and 6:30 pm. on Friday, 9:00 am. and 5:30 pm. on Saturday and 12:30 pm. and 6:00 pm. on Sunday.

12. The father sought an order that the mother provide him with copies of the children’s school reports and photos, including reports and photos relating to C.  The mother opposed any such order in relation to C.  She would consent to an order which provided that C could correspond with the father by cards or letters, if, and only if, “[C] felt it right”. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).

5. In Hemiro & Sinla [2009] FamCA 181 I summarised the principles referable to determination of an application which involves an allegation of sexual abuse. I will not repeat them.

6. In essence the court must determine whether there is an unacceptable risk of C being sexually abused in her father’s care. The standard of proof is that set out in s.140 of the Evidence Act 1995 (Cth), pursuant to which the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. As provided in s.140(2), and without limiting the matters which the court may take into account in deciding whether it is so satisfied, the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.

New Facts and Circumstances

1. Opening his case, counsel for the mother relied on the evidence of Ms. T as the new facts and circumstances which warranted a reopening of the question of the father’s time with D and E.  It was his submission that if the mother failed to satisfy the court that those new facts and circumstances existed, the father should not be allowed to relitigate the question of his time with C, or seek any variation to the orders relating to D and E, as the father himself had not advanced any new facts and circumstances which would justify that course. 

2. The thrust of this argument was that the threshold issue (the establishment of new facts and circumstances) was determinative of the second round of litigation, notwithstanding the fact it fell to be determined some two years after the fresh initiating application was filed and after a number of interim hearings, variations to orders and involvement of the three children in the preparation of a family report.  It was the mother’s submission that absent new facts and circumstances relied on by the respondent at the time he filed his response, a finding that the applicant had not satisfied the onus should mean that the court go no further. 

3. While maintaining this argument in final submissions, counsel for the mother did concede that its weight was affected by the fact the applicant sought, as final orders, a continuation of interim orders relating to the father’s time with the twins, made in the course of these proceedings;  she did not seek their discharge, and a reversion to the final orders made by Murray J  Further, she herself relied in the trial on evidence of events which allegedly occurred in July 2008 (some two years after the original orders and eighteen months after she filed the application to discharge them) when seeking to discharge all orders for the father to spend time and communicate with D and E, alleging – for the first time – sexually abusive conduct by the father towards D. 

4. The father was not legally represented and, understandably, did not really grapple with this submission.  If he had, he might have made submissions referrable to the necessity for variation to the orders, given that, on their face, they provide for supervision of all his time with his sons until they turn eighteen, which is neither viable nor practicable.  In a sense, he foreshadowed this in his letter to the child representative in October 2006.

5. In Moose & Moose [2008] FamCAFC 108 Boland J (with whom May J and O’Reilly J agreed) referred to the Guidelines for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1. and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates’ Court of Australia) which noted the undesirability of, and the practical difficulties associated with, long term supervision in a children’s contact centre. 

6. In that case the Full Court considered an appeal against final parenting orders which provided for the father to spend two hours supervised time with two children, for two hours on one day a month, at a children’s contact centre. At para 8 May J foreshadowed the problem facing the father in this case, observing that should the father bring a further application seeking that the provisions for supervision at a contact centre be removed, he would “doubtless be met with an assertion that he may not do so because there has been no change in circumstances. (Rice & Asplund)”. Her Honour agreed with Boland J’s discussion of the issues, which commenced at para.113 of the judgment.

7. Warnick J. recently considered the application of the principles often referred to as the rule in Rice & Asplund (1979) FLC 90-725 when determining an appeal against the decision of a Federal Magistrate in SPS & PLS (2008) FLC 93-363.

8. As his Honour noted at 82,451, Rice & Asplund involved an appeal from custody orders which reversed an order made nine months earlier. Evatt CJ found (at 78,905) that a court should not lightly entertain an application to reverse an earlier custody order as to do so would be to invite endless litigation, because change is an ever present factor in human affairs. She found that the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. Her Honour said that the threshold question was not necessarily one for a preliminary determination although, as Warnick J noted, by saying the court “should not lightly entertain an application to reverse an earlier custody order”, her Honour was formulating the rule in that way.

9. At 82,452 Warnick J considered the ends to be served by the rule.  One, as recognised by Evatt CJ in Rice & Asplund, was to discourage “endless litigation”.  His Honour noted that the public interest in the finality of litigation it as least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.  Quoting Nigh J. In the Marriage of McEnearney (1980) FLC 90-866, Warnick J referred to the enormous psychological harm inflicted upon parents and children if a party is allowed to canvass, again and again, the question of custody of a child. A further end was the avoidance of the potential for one judge to substitute his or her opinion of what is in the best interests of a child for that of another judge, based on the same or similar facts.

10. Warnick J noted that if the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.  However, if it is not applied until the end of a full hearing, they cannot be.  Parties will have engaged in the litigation from the time the application was filed until the trial.  The litigation itself is likely to have impacted on the children, who may have been directly involved, for example in interviews for a family report.  Public resources will have been expended.  His Honour found :

    In my view, a likely and important consequence of a diminution in the ends to be served by a rule is a diminution in the weight it should carry, among the other principles pertinent to an overall result.  This observation is re-enforced by consideration of the nature of the hearing that takes place if the rule is not applied as a preliminary matter.

1. Warnick J noted a line of authorities which clearly reiterated that if the rule is not applied as a preliminary matter, the hearing that follows it is a full hearing of a “custody” dispute;  see In the Marriage of F & N (1987) FLC 91-813, In the Marriage of D & Y (1995) FLC 92-581, In the Marriage of Newling & Mole (1987) FLC 91-856.

2. In the course of his judgment, Warnick J. formulated (at 82,451) seven propositions which were discussed in more detail in the balance of the judgment.  The propositions are these :

   (i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

   (ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing.  The consequences of that determination have received little attention.

   (iii)That at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

   (iv)Discussions in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits” (emphasis in original).

   (v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   (vi)“Shorthand” statements of the rule may contribute to its misapplication.

   (vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

3. In Miller & Harrington (2008) FLC 93-383 the Full Court (Warnick, Boland and Murphy JJ) considered an appeal against a decision by the trial judge to dismiss the mother’s application and order costs against her on an indemnity basis, in circumstances where her application was brought eight months after a final hearing in which judgment had been delivered. The trial judge had dismissed the mother’s application and made the costs orders after a hearing “on the papers”, without cross-examination, having applied the rule in Rice & Asplund as a preliminary issue.

4. The Full Court emphasised (at 82,856) that at whatever stage the rule in Rice & Asplund is applied, the court is bound to take into account best interests considerations and to take into account that the application of the rule occurs within proceedings to which the provisions of Part VII of the Act apply, including the provisions of Division 12A of the Act.  Much of the Full Court’s discussion related to the level of satisfaction necessary if the issue is resolved as a preliminary one and the evidence, and testing of the evidence, which may be required.  The Full Court adopted the language used by Warnick J in SPS & PLS, finding (at 82,860) that the question for consideration is: assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

5. The Full Court in Moose & Moose endorsed SPS & PLS, confirming that the principles enunciated in Rice & Asplund remain relevant post commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006. The Full Court held that despite the absence of submissions on the point, the trial judge should have considered earlier orders which governed the father’s time with the children, and which provided for unsupervised contact, and determined whether there should be a departure from them.

6. Thus, the question for this court is whether, in the present circumstances and having regard to changes in circumstances since June 2006, the best interests of the children require that the orders of June 2006 be reconsidered. 

7. The father’s circumstances have changed substantially since June 2006.  He has formed a new relationship and married his present wife.  She has four children of her own and they have a daughter, K, who is now ten months.  He lives in New South Wales, not South Australia.  Albeit later than envisaged by Murray J, he has re-established his relationship with his sons. 

8. The children’s circumstances have changed.  D and E are now almost five.  The father has had unsupervised time with them, something not envisaged by Murray J’s orders, and the mother does not now seek to stop their unsupervised contact.  Based on the family report, it is arguable that C, who had not seen the father for over two years when the interviews were held in October 2008, is no longer frightened of him and that she responded warmly and comfortably to him.

9. On one analysis, the mother’s circumstances have not changed.  She lives in Victoria, as envisaged by Murray J’s orders, and maintains her conviction that C has been sexually abused by the father.  However, by asking the court to vary the original orders, which provided for the father to have only supervised time with D and E, and make orders providing for him to have supervised and unsupervised time with them, the mother tacitly acknowledges that the best interests of D and E require a reconsideration of the time they spend with their father. 

10. Y Centre has supervised contact for longer than is its usual practice and is prepared to continue for another year, at most.  At some point, absent agreement between the parties, the father could reasonably ask the court to consider the duration and practicality of continuing supervision and whether it was in the best interests of D and E. 

11. I am satisfied that the best interests of all three children require the court to consider their present circumstances and make final orders which are in their best interests now and that the court’s capacity to do so is not dependant on the mother satisfying the court that Ms. T’s evidence establishes a change of circumstances or a new factor.  

Judgment of Murray J:   26 June, 2006

1. The court has always been able to take into account findings made in earlier litigation in the court between the parties, a proposition given statutory force in s.69ZX(3) of the Family Law Act 1975. I do adopt the findings made by Murray J on 26 June, 2006. In those circumstances, it is useful to summarise them.

2. The judgment of Murray J records that the trial extended for about sixteen days.  At the commencement of the trial counsel for the father informed the court that the father was not pursuing residence of the children but the question of relocation (the mother sought to relocate with the children to Melbourne) and contact with the three children remained on foot.  By the end of the trial the father’s counsel informed the judge that the father would not pursue the question of present contact with C but would like contact with her in the future, if C agreed.  He sought contact with D and E.

3. Murray J found that both parties “twisted and turned” in their evidence, only sometimes telling the truth. 

4. Murray J found that the parties met in Victoria in August 1996 and the mother moved in with the father in 1997.  They then separated and subsequently rented a property;  Murray J dated their cohabitation from that point. 

5. Murray J found that the father frequently watched pornography, in and out of the mother’s presence, and sometimes with friends.  He denied that he watched child pornography and she was “unable to find that he does”.

6. Murray J recorded the mother’s evidence that on 9 May, 2005 (two days prior to separation) C complained to her about the father touching her “on her bagina”.  The mother’s evidence was of confronting the father with this and of him denying it.  It was the mother’s evidence that she relocated to Melbourne with the children because of her fear that the father was sexually abusing C.  Murray J declined to find that to be a major motivating factor.  Her Honour found that the mother’s concern that she would be sentenced to a period of imprisonment for a Centrelink fraud led to her relocation, as she wanted to leave the children in her mother’s care in Melbourne, while she served her sentence. 

7. Murray J. found that faced with a potential sentence, the mother had asked the father if he would be willing to let her take the twins to prison, and let C live with her mother.  He refused and told her he would seek residence if she were imprisoned.  It was after this that the alleged disclosure was made. 

8. Murray J found that the parties argued about the father’s contact with the children over the phone after the mother left, and when the father said he would take the matter to court, the mother said words to the effect “If you do that, I’ll tell them about the kiddy porn”.  On the basis of the pornographic images tendered by the mother, Murray J found that the threat was without basis;  that is, none of the images could be described as “kiddy porn”.

9. Murray J found that on 24 May, 2005 the father drove to Melbourne, asked to see the children, and upon meeting C in a nearby park, bundled her into the back of his car and drove back to Adelaide, arriving there at about 4:00 am. on 25 May and leaving C in the care of his mother.  A recovery order was subsequently granted in the Victorian Magistrates’ Court and the father handed C back to the police the following day. 

10. Murray J found that the father had not sexually abused C as alleged by the mother.  She found that some games the father played with C, while exaggerated by the mother, were unsuitable.  One game, called “Torture”, involved the father chasing C, or she chasing him, and them pinching each other;  the father conceded this was rough play and that he had pinched the child on her arms, stomach and inside thighs as well as on her bottom.  In the light of that finding, her Honour found, on the balance of probabilities, that there was an unacceptable risk of sexual abuse of C by the father by “eg. inappropriate sexual touching of the child”.

11. Murray J assessed each of the parties as a poor role model.  She found that they both lost their tempers, shouted and swore at the children and smacked them.  She found the mother well knew of the father’s propensity for pornography and did not mind;  she found that the father’s denials easily soothed her suspicions of his doubtful play with C.

12. Murray J found that the mother was prepared to say and do almost anything to ensure she could relocate to be with her mother.

13. Murray J did not accept evidence of the mother’s mother of an alleged assault on her by the father in September, 2004, nor her evidence of him kicking C “so hard she flew through the air”.  She assessed the maternal grandmother as having a dominant influence on her daughter;  she was articulate, forceful, evasive and not much more reliable than her daughter.

14. Murray J found that she should treat disclosures related by the maternal grandmother with caution.  Murray J accepted evidence from another witness of seeing the maternal grandmother putting C rather roughly into her car in the presence of the father, when “very angry”.

15. Murray J found that the maternal grandmother had a deep dislike of the father and told the father’s mother that she “would do anything to get the mother away from him and back to Melbourne”.

16. Murray J found that the mother untruthfully alleged that the father took sexually inappropriate photographs of a niece and nephew.

17. Murray J found that on 16 June, 2005, the mother told another witness, Ms. E, that she and the maternal grandmother did not want to send C back to the school ordered by the court “but needed time to concentrate on telling [C] what to say in court”.

18. Murray J made a number of findings critical of Ms. M, of Child Protection Services.  She was particularly critical of her methodology when interviewing C;  she referred to her prompting the child, placing no weight on manifest inconsistencies in C’s accounts and of not being alert to the use of language or expressions which were indicative of adult involvement in the alleged disclosures.  She found that medical examination of C on 27 January, 2005 found no evidence of physical or sexual abuse.

19. Murray J expressed doubts about the veracity of C’s disclosures but found that by October 2005 C had developed a genuine and real fear of her father as the result of “successful” actions of the mother and maternal grandmother.

20. Murray J found that the father had not vaginally or anally penetrated C or masturbated in her presence, nor placed his penis in her mouth;  in making those findings she referred to the inconsistencies, untruths and exaggerations in the evidence relied on by the mother.  On the balance of probabilities she did find, however, that there was an unacceptable risk of sexual abuse of C by the father, giving as an example “inappropriate sexual touching of the child”.  This arose from a finding that, on occasions, the father and C played “Torture” and another game called “Missiles” (which Murray J found harmless) in the bedroom with the door closed, while the mother was in the kitchen. 

21. Murray J did not find an unacceptable risk of abuse by the father in respect of the boys.  However, having regard to her finding in relation to C and the father’s strong interest in pornography, she “leant towards” imposing a condition of supervision for any contact ordered.

22. By the time the judgment was delivered, the father had not seen the twins for nearly twelve months, save for two brief periods.  They were by then just two.  When observed in his company by the family reporter, the twins did not relate to him very closely and there was very little interaction. 

23. Murray J allowed the mother to relocate the residence of the children to Melbourne, notwithstanding the effect that it would inevitably have on the capacity of the father to spend regular and frequent time with the boys. 

24. When Murray J made the final orders, she envisaged the mother and children living in Melbourne and the father remaining in South Australia, where he was living with a new partner who had three children and with whom he was expecting a child.  One can infer from her Honour’s reasons that the significant distance between the parties’ homes was behind the infrequent supervised contact.  Contact was to commence at a contact centre in Melbourne, as close as possible to the mother’s residence, which was approved by the child representative.  Contact was to commence on 16 September, 2006 unless otherwise agreed, and prior to its commencement the father was to present a certificate to the child representative of his completion of a parenting course.  For reasons which will become clear, contact did not start until 17 March, 2007.

Mother’s contact with Gatehouse Centre :  28 May, 2005 to 31 July, 2007

1. As found by Murray J, C was returned to the mother in Melbourne by Federal Police on 27 May, 2005.  The mother took her immediately to U Hospital for examination to ascertain if she had suffered any physical or sexual abuse.  A medical report before Murray J. noted no bruising, bleeding or discharge from the vaginal region or from the anus.  Her Honour found nothing turned on two small bruises on her leg.  The mother’s evidence was that she was then referred to the Gatehouse Centre at the Royal Children’s Hospital, and she made contact with Gatehouse on 28 May, 2005.  On 31 May, 2005, three days later, the court ordered the mother to return the children’s residence to South Australia by 8 June, 2005. 

2. The mother’s evidence was that while she was in South Australia she remained in contact with Gatehouse and on 27 March, 2006 C was accepted onto the waiting list for counselling.  The mother and children were able to return to Melbourne after the judgment of 26 June, 2006 and on 18 July, 2006 the mother had an intake appointment at Gatehouse.  After a second such appointment, C commenced an assessment at Gatehouse on 4 August, 2006 with Ms. T.  Ms. T met with C frequently;  they had 25 sessions to 31 July, 2007.  Ms. T’s evidence was that the purpose of the initial eight sessions was to determine whether C had been exposed to or been the victim of sexual abuse or physical assaults. 

3. In her report dated 14 December, 2006 Ms. T noted two interviews with the mother and an initial assessment of C over eight separate sessions. She advised :

   During the assessment phase [C] disclosed oral, anal and penetrative sex perpetrated on her by her father over a number of years.  Of equal concern were the frequent disclosures of significant and unpredictable physical abuse that [C] alleged to have occurred.

   Following the assessment a recommendation was made to [the mother] that [C] should receive ongoing long term counselling treatment given the severity of the alleged sexual and physical abuse and the trauma associated with it.  The writer continues to see [C] for weekly sessions as a part of her long term treatment plan.

   A family report written by the Family Court Mediation Service for the Family Law Court (sic) on November 18^th 2005 recommended in item 55 that :

   ·should abuse be confirmed, no contact between [C] and [the father] should take place at this stage;

   ·should abuse not be confirmed, contact between [the father] and the twins should take place, initially at the Children’s Contact Centre;

   During the sessions I have conducted with [C] there have been repeated and consistent allegations of severe sexual and physical abuse perpetrated against her by her father [Mr Malak] over a sustained period of time.  Given this it is my strong recommendation that neither [C] nor her twin brothers, [E] and [D], have any form of contact with their father [Mr Malak].

4. This is a remarkable report.  Ms. T had a copy of Murray J’s orders and, as is clear, a copy of the family report of November 2005, but had not read Murray J’s judgment.  She made no enquiries about past medical examinations and saw no medical reports;  she was thus ignorant of the forensic examination in South Australia to which Murray J referred and the examination at the U Hospital in May 2005, the month in which the child allegedly made her first disclosure.  Medical examinations are often inconclusive but Ms. T was happy to act on the basis of severe and sustained penetrative sexual abuse, including anal penetration, assaults which could reasonably be expected to result in injury.  She did not refer C for a medical examination. 

5. After Ms. T was cross-examined, counsel for the mother conceded that her evidence had not been as envisaged;  this was a tacit acknowledgement of the probability the court would find Ms. T to lack objectivity, the process undertaken flawed and her conclusions unreliable.  I do so find.

6. Ms. T was not an impressive witness.  The role of a social worker at Gatehouse is quite different from a forensic role and she should not be criticised for complying with the usual Gatehouse protocol, pursuant to which the alleged perpetrator plays no role in the counselling process.  Whilst it was reasonable for her to be supportive of the mother and C, she was meant to be conducting an assessment, and there is little point in conducting an assessment unless, in the process, one assesses things told and observed.  Ms. T took the view that “interrogation” is the role of police.  When C told her she thought she was at Gatehouse “because of daddy sexing me”, but could not say what she understood “sexing” to mean, Ms. T placed weight on the disclosure, not the ignorance. 

7. Ms. T unhesitatingly believed everything told her by the mother, including an account of the mother observing C in bed, with D sitting up between her legs and C saying :  “Touch it.  Come on, touch it now”.  She did not question that report of sexualised play, and when pressed said that if a mother told her she had observed sexualised play between an older sibling and a younger sibling “I’m inclined to believe it”, even in the midst of litigation.  Her evidence was:  “I knew she had had this sexualised play with her brothers”;  despite the mother’s account involving only D, Ms T referred to both brothers.  Ms. T “knew” this;  it was not an allegation, but fact.  When it was put to her that D was only two and a half, she replied :  “I don’t know the dates of birth of the twins”.  There is no evidence Ms. T ever met with the twins, although she may have.  She certainly never met the father and her own evidence was that C was ambivalent about him.  When the father put to her that she took the view that a mother who brought a child to Gatehouse and related information to her was “coming from the position of truth”, she said “I would hope so”. 

1. On 10 November, 2006, when C responded “No, I haven’t”, twice, when Ms. T said “Mum and I think you’ve had some touching feelings like that with your brother”, Ms. T persisted, prompting C to say (after being told by Ms. T that lots of kids have touching feelings “because sometimes touching feeling feels nice even if we know it’s wrong”) :

   I am not going to talk about it.  That’s why I hate counselling.

   Ms. T persisted.  When C wouldn’t speak, she tried to get her to use “a pony phone”, but that, too, failed.  Ms. T moved to flash cards, getting C to put various statements in piles labelled Yes, No and Maybe.  She read out “I had touching feelings because it happened to me”;  C put the card on the No pile.  Ms. T’s response was to query this with C, although apparently to no avail.  Finally, Ms. T conceded that nothing said or done by C and no observations of C confirmed the sexualised behaviour between siblings;  she based her opinion on the mother’s report. 

2. There is no evidence Ms. T ever queried C when she interpreted C’s actions or answers as consistent with the case she sought to make, which was abuse.  When Ms. T eventually read Murray J’s judgment, it did not lead her to reconsider her views.  It is clear she placed no weight at all on Murray J’s findings that the mother had not told the truth about a myriad of matters (including her own sexual abuse at the hands of the father), had lied about the father’s sexually inappropriate photography of a niece and nephew and that she would do or say anything to achieve her objective. 

3. Those findings are made after cross-examination of Ms. T, some two years after she wrote the letter of 14 December, 2006.  At the time it was written, there was no opportunity for the father or the court to assess the opinions.  Armed with the letter, the mother filed the initiating application on 22 December, 2006.  The mother’s evidence was that the Gatehouse counselling was initially, but not ultimately, helpful for C.  In her opinion, the counsellor “kept bringing up things [C] wanted to forget”.  She thought about stopping the sessions for some time before doing so in July 2007.

Interim orders :  22 February, 2007

1. On 22 February, 2007 Senior Registrar FitzGibbon heard the interim applications and delivered a short judgment.  At that time both parties were represented.  The registrar said that he did not know whether Gatehouse had received Murray J’s reasons for judgment, any of the recent affidavit material or any other material which he thought would be vital for an understanding of what had occurred.  Taking into account the credit findings made against the mother by Murray J, he doubted such material would have been made available to them.  He was certainly right about Murray J’s reasons and evidence relating to medical examinations.

2. The Senior Registrar found nothing new in the allegations and that Murray J had considered the risks to the twins when making her orders.  C had not seen the father since well before the Adelaide trial so there could be no allegations of fresh abuse.  The registrar concluded that he should not interfere with Murray J’s orders and ordered the mother to comply with the paragraphs of those orders relating to the father’s contact with the twins.  The senior registrar requested the appointment of an independent children’s lawyer, reserved the father’s costs of the day and the application, and referred the applications for final orders to the trial notice list on a date to be fixed. 

3. Eventually, on 2 March, 2007, the mother attended an intake interview at Y Centre.  She told the manager that there were criminal charges pending against the father in South Australia and that she was concerned about the father absconding with the children.  She said the father had sexually abused all three children.  Cross-examined about this the mother agreed that no allegations of sexual abuse of the twins had been made in the Adelaide trial but said it was “always an assumption”.  She said the father had hit her mother and that all the children were subjected to the parental domestic violence.

Father’s response :  6 March, 2007

1. On 6 March, 2007 the father filed a response, prepared by his solicitors.  He sought numerous injunctions against the mother and the maternal grandmother and that the mother be declared a vexatious litigant.  Only two of the orders related to his time with the children;  he sought to commence to spend time with D and E as ordered by Murray J. and to spend time with C at such times and on such conditions as the court deemed fit.  Before me he pressed only his application for parenting orders.

First supervised contact session :  17 March, 2007

1. The report from Y Centre noted that the father spent equal time with the children, enthusiastically participating in activities.  E and D presented as comfortable with him, regularly approached him during play and chatted with him.  He offered praise and encouragement and cuddled and kissed them during contact.  D was more reserved than E, following E and watching what he would do, and then joining in.

2. Murray J noted that the father had not seen the twins for nearly twelve months (save for two brief periods) when she delivered judgment.  By March 2007, that period had extended to some 21 months.  Given this, the positive interaction between father and sons is noteworthy. 

3. The report noted that the father was half an hour late for contact but did note his advice that he had driven from South Australia leaving home at 12:30 am.

Second supervised contact session :  16 June, 2007

1. This session took place for three hours between 1:15 and 4:15 pm.  The Y Centre report notes the boys separated easily from their mother, greeted their father with a hug, ate juice and snacks provided by their father and explored various toys and activities in the room.  The father appeared mindful to spend equal time with the children and often divided his time between them;  he included himself in their play, and the children giggled as he chased and tickled them.  At the conclusion of the period E and D gave their father a hug goodbye and separated easily, greeting their mother with a smile.

Third supervised contact session :  19 September, 2007

1. This session took place between 1:30 pm. and 4:30 pm.  The report describes comfortable and happy interaction between the father and boys and the children regularly and spontaneously approaching their father and participating in play and conversation with him.  They presented as being very comfortable with their father and interacted with each other as well as playing independently.  At the end of the period the father gave each child a hug and kissed them goodbye and told them he loved them.  D wrapped his arms around the father’s neck and kissed him.  E smiled when the father hugged and kissed him goodbye.

Allegations made by L:  November 2007

1. In November 2007 the stepmother’s daughter L, told her mother that the father had come into the room she shares with her sister A, pulled her undies off and touched her private parts.  She said he then went to A, and touched her on the breast.  When A denied these accounts and L was challenged, she said that maybe it had been a dream. 

2. The stepmother called police.  It is clear she was sceptical about the allegations from the outset, particularly as A (then about 12) is a very light sleeper, and at that time L was being very disruptive and seeing a number of counsellors.  However, the stepmother also thought that the allegation needed to be investigated and that it was important L understood how serious it was. 

3. L was not supported by A and ultimately police and DHS took no action. 

4. After the trial commenced in December 2008, the ICL sought an adjournment as information was received that either the Department of Community Services or New South Wales Police were investigating another allegation of the father’s inappropriate sexual behaviour with a child.  The court adjourned the trial and documents were subpoenaed from DOCS and NSW police.  These, and other enquiries made by the ICL, satisfied the ICL that the allegations made at that time were old allegations and ones neither DOCS nor police believed warranted investigation.

5. The father was keen to unearth evidence of the author of that late notification.  While explicable, the court found that no public interest would be served by doing that and that an answer to the question would not assist this court in reaching a decision.  It is probable that whoever made the allegation did so mischievously. 

6. I am not satisfied there is any substance in the allegation initially made by L in November 2007 and accept that the father’s relationship with the children of the stepmother is as she deposed.

Fourth supervised contact session :  16 December, 2007

1. This session was from 12:30 to 3:30 pm. and was similar to the previous one, the children relating well to each other and with their father.

Introduction of some unsupervised time :  23 January, 2008

1. On 23 January, 2008 the applications for final parenting orders were listed for what is routinely called the first day of a less adversarial trial, pursuant to then Practice Direction No.2 of 2006 (since repealed).  Both parties were represented, as was the ICL.  By consent, the orders made by Murray J on 26 June, 2006 which related to the father’s time with D and E were discharged.  The order for discharge was made “until further order”;  the intention was probably to suspend the operation of the earlier orders.  Until further order, the father was to spend time with D and E on one occasion every two months.  On each occasion three hours of time was to be supervised at Y Centre, followed immediately by a two hour period of unsupervised time in the N area.  All changeovers were to take place under the supervision of, and at, Y Centre.  Although not part of the order, the parties sought that a note be added recording “It is intended that the father’s time shall involve the father alone with the children and no other person.” 

2. The court also ordered the preparation of a family report, to be released by 29 August, 2008, and directed it be within the absolute discretion of the family consultant as to whether he observed the father with C. 

3. Until then, putting aside the long gap prior to its commencement, contact had gone very well. 

Fifth supervised contact session and first period of unsupervised time :  15 March, 2008

1. The father arrived thirty minutes late for the visit, scheduled from 12:15 to 3:35 pm.  At Y Centre the interaction between the father and children was positive and the father initiated imaginative age-appropriate play.  The boys regularly sought his attention and offered him affection, spontaneously approaching him to give him a hug.  The father and the children moved happily into their unsupervised time.  At the mother’s request, workers checked whether the father had booster seats and the father advised he would take the children for a walk, given he did not have the appropriate restraints in his car.  He was ten minutes late returning the children.  There was nothing unusual in their presentation on their return and they gave their father a hug and kiss goodbye before animatedly informing their mother of the toys he had bought them.

Cancelled contact session :  17 May, 2008

1. On 5 May, 2008 the father received a letter, dated 3 May, from Y Centre confirming the time and date of the next agreed supervised contact.  His evidence was that he contacted Y Centre on 15 May and, as the manager was not available, left a message asking her to call back if there were any problems.  No return call was made and he made the nine hour drive to N.  On his arrival at Y Centre on 17 May he was advised that the mother’s solicitor had written to them advising that she was no longer going to attend on a Saturday, but could not discuss why. 

2. Four days later, on 21 May, the father received a letter from the mother advising she had commenced work;  it transpired that it was a new job which had interfered with the contact on 17 May.

3. The mother’s account was of attempts to ensure the father was given notice that she would not be attending.

Interim application filed by the father

1. On 4 June, 2008 the father filed an application, which was met by a response of the mother on 18 June, 2008.  Orders were made, by consent, on 20 June, 2008 which provided for the mother to provide make-up time to the father :

   (a)on a date after 28 June, 2008 to be nominated by the father and agreed in consultation with the [Y Centre] service;

   (b)to be arranged by the father and 7 days notice to be given to the mother;

   (c)otherwise in accordance with paragraph 2 of the orders made by the Family Court of Australia on 23 January, 2008.

2. It must be said that the order is a little hard to decipher but I am satisfied the intent was to give the father makeup time (to compensate for the cancelled May visit) on a day on which he would routinely be seeing the children.

Sixth supervised contact session and second period of unsupervised time :  19 July, 2008

1. A great deal of evidence went to events of this day and the various accounts were inconsistent and confusing. The situation was complicated by references to the father’s entitlement to make-up time and the legitimate complaint of the mother that she had not been given seven days notice of that.  I am satisfied that is a red herring.  It is probable Y Centre had advised the father they were only able to supervise for two hours, between 10:15 am. and 12:15 pm. and that they did not have capacity to arrange the changeovers which would be necessary were he to spend unsupervised time with the children. 

2. By 2008 the father was living in New South Wales, with his now wife.  He was no closer to N than he had been in Adelaide.  Appointments had been made for him to meet with the family reporter at this registry on the Monday after contact visit on 19 July.  He had received the standard letter from the court which provides some information about the assessment and notes that “other members of your family or immediate household may also be required to attend”.  From this the father inferred that his wife would be required to attend and that it was vital that D and E meet her and her children, and K, prior to that attendance. 

3. What occurred on 19 July, 2008 reflects well on neither party, but reflects particularly badly on the father.  After a routine start to the supervised time, the father informed the worker that he would be exercising his rights pursuant to the court orders to take the children for a two hour unsupervised period.  He was told this could not occur because, as previously advised, Y Centre could not facilitate a two hour changeover and the mother was not agreeable to a longer unsupervised contact period than originally planned.  Remaining calm but obdurate, the father advised he was going to take the children with him and that the contact service would have to call the police.  He said he would drop the boys back at the police station, if the return changeover could not be facilitated by Y Centre.  He advised that his partner and new-born child had travelled with him from New South Wales to meet the boys and spend some time with them before the court assessment on Monday.  Despite many attempts to persuade the father that it was not in his best interests to act as he was, the father remained adamant: he would take the children. 

4. Called by the worker, the manager and executive manager of Y Centre arrived just before noon.  The father remained adamant that he would take the children and was not moved by advice that Y Centre would need to call police and security.  In a generous attempt to defuse the situation, the executive manager suggested that the father could bring his partner and child to the service for a further one hour supervised contact session and she and the manager would stay and supervise.  Alternatively, the father could take the children for one hour and return at 2:15 pm., and again the senior staff would manage the changeover.  The father agreed.  The mother would not agree to either proposal.

5. The mother was advised that Y Centre staff had no power to stop the father taking the children and, when the mother said she was fearful about him having unsupervised time with them, reminded her that the Family Court orders provided for unsupervised time.  At that point the mother became highly agitated and stated “and when we hear the children are dead?”.  She was greatly concerned about the father’s partner being in attendance and seemed distraught when talking about her.

6. In the face of sustained opposition from the manager, executive manager and the mother, the father left with D and E at 1:00 pm.  He said he would return at 2:15 pm. 

7. The father did return the children at 2:10 pm.  He told staff that the children had accidentally soiled their pants due to sudden diarrhoea and he had cleaned them up as best he could.  Staff gave the children new underwear.  When they were returned to their mother the children presented well.

Photo allegation :  19 July, 2008

1. The mother’s evidence was that D subsequently told her that during the unsupervised time with the father on 19 July, the father took a photo of his penis when he was sitting on the toilet at McDonalds, after soiling his pants.  I have no hesitation in finding this a malicious allegation.  The mother repeated this account to Mr. S who she saw on 21 July, two days after the alleged incident, and in her affidavit sworn on 2 December, 2008. 

2. Cross-examined, the mother maintained the allegation with vehemence, and insisted she was only acting on what she was told, but deposed that it was E (not D) who made the disclosure;  she said E told her shortly after she picked him up on 19 July.  When it was put to her that the account could have been made up, she said that if D had made the allegation she might have believed that, but it was made by E.  She then said that D repeated it.

3. The mother conceded that the boys denied to her and police that a photo had been taken but maintained the father had coached them to deny it.  Asked whether she believed it had happened, she said :

   I have no opinion on it, because I’ve got sketchy details from two little boys.

   Like a mantra, she repeated that, as a responsible mother, she had a right to report it. 

4. The maternal grandmother’s evidence was of hearing D talking about the photograph when he was in the back seat of the car.  She recalled both twins laughing when it was said but did not recall E saying anything.

5. The father learnt of the allegation when he saw Mr. S on 21 July.  He denied it and was never questioned by DHS or police.

6. I have no hesitation in accepting the stepmother’s account of the unsupervised time on 19 July and the father’s evidence and find that the father did not take a photograph of either child’s penis in the toilet or in any way deal sexually inappropriately with either of them on 19 July.

7. This allegation led to a DHS and police investigation.  Police from SOCAU interviewed the twins and C.  DHS workers spoke with C and the mother agreed she used the opportunity to again raise the allegation of sexual abuse of C, saying she did it “to see if she was ready to talk”.  The mother told the DHS worker that she was unhappy C had been made to see the father when with Mr. S but agreed that she had told C that seeing Mr. S provided “another chance to tell somebody, if she wanted to.”

Family report :  28 August, 2008

1. Mr. S described C as an articulate girl who told him that her mother said she should talk to him and “tell him all the things my father has done”.  Responsive to that direction, she provided a series of examples which included a complaint about the father “stealing” her brothers from Y Centre the previous Saturday and a concern that her father would take her away and never return her because “he wants to hurt my mother for some reason”.  Asked how she had formed these conclusions regarding the father’s intentions, C said “my mother tells me this”. 

1. C also repeated in detail a litany of sexual offences the father had allegedly committed against her;  this was done by rote, without emotion, while playing a board game.  Mr. S did not take notes of the specific allegations but said they were suggestive of repetition and there was a sense that, having been interviewed by workers from protective departments, counsellors, police and Gatehouse, repetition is what C thinks is expected of her.  He said her words may say nothing about the veracity or accuracy of what actually occurs. 

2. Mr. S conceded that an abused child can have mixed feelings about the perpetrator of the abuse and spoke of grooming behaviour and the impact of that.  He agreed that a court cannot rely on apparent happiness to spend time with a alleged perpetrator on one occasion as that does not negate any real risk.  However, he made it clear that, in his opinion, the behaviour demonstrated by C went beyond “happiness”.  She was given an option of not joining in the time with her father and brothers, and elected to do so, and she responded positively to her father;  the choice and manner of her interaction demonstrated the continuation of their former relationship.  C did not present as a conflicted child and there was no indication she was scared of the father.

3. Mr. S’s opinion was that while C clearly enjoyed interacting with the father, her mother is unlikely to be convinced of the benefit to her of spending time with the father;  neither C nor the boys will ask to see the father or visit him and his new family in school holidays, because they are acutely aware of their mother’s feeling on the matter.

4. Mr. S agreed that if C were to see the father, the court would need to consider the ramifications of that on her life at home with her mother.  The mother’s views will not change and, viz-a-viz time with C, they are profoundly negative.  Time with the father could come at an emotional cost or risk for C as it is likely she would have to deal with her mother’s resentment, which could have a destabilizing affect on her own relationship with her mother. 

5. Cross-examined, the mother was asked whether she had a strong bond with C, and answered “No”.  Mr. S was not surprised by that response;  he saw the lengthy litigation and the mother’s focus on the alleged abuse as something with the capacity to “get in the way” of a close and enjoyable relationship.  In his opinion, the mother’s answer may reflect a degree of insight and may indicate that there is merit in an outcome which is most likely to reduce pressure on the children. 

6. Mr. S had recommended that C commence spending periods of supervised time with the father at Y Centre, and for the boys to be present during those sessions, if that could be accommodated by Y Centre staff.  He proposed that C be referred to individual counselling to assist her as she adapted to the recommencement of a relationship with the father and that reports from Y Centre staff be available to her counsellor.  He proposed that the question of unsupervised time be considered after a period of six months supervised time at Y Centre.

7. Cross-examined, Mr. S agreed that while supervised time would ensure no physical or sexual abuse, it would not stop the emotional damage which could occur if C had been abused in the past and was exposed, albeit in a safe environment, to the perpetrator of that abuse.  He agreed that if a court was satisfied that she had been abused, he would not recommend any contact.  Further, it would not be good for C to see her father in a supervised environment and have a developing relationship quashed by a subsequent decision that unsupervised time was not in her interests.  He said if the court did not have “sufficient confidence” that unsupervised time would follow from supervised time, commencing a process of supervised time could be more detrimental than not starting that process at all.  The potential harm of brief contact, which went nowhere, had to be weighed against the benefit of re-establishing a relationship, if that worked in the long term. 

8. When with Mr. S, D and E related warmly and well with their father, laughing and making cheeky fun with him.  Their interaction was consistent with that observed by staff at Y Centre;  at no time did they display any sign of discomfort or anxiety while in their father’s presence and the father handled them well. 

9. Cross-examined, Mr. S maintained his recommendation that D and E should cease to spend time with the father on a supervised basis and move to spending increasing periods of unsupervised time with him.  He recommended they be introduced to their stepmother and have the opportunity to meet and interact with her children and with their younger sister, K.

10. Mr. S observed the mother’s interaction with the children following their period with the father.  He said the mood in the room shifted significantly and the children were far less animated and played quietly as their mother watched and chatted with them.  The children were relaxed and comfortable, though the mother’s own presentation was somewhat flat in affect. 

Sixth supervised contact session and third period of unsupervised time :  20 September, 2008

1. Supervised time and unsupervised time appeared uneventful.  Observed by Y Centre staff, the father interacted on a positive level with the children throughout the visit, initiating activities and games.  On their return from unsupervised contact both boys gave their father a goodbye hug.  One of the children’s jackets had been left at McDonalds.  The father offered to post it to the mother but as she said she wanted it right away and he went and retrieved it. 

2. During the period of unsupervised time on 20 September the father interrogated D and E;  the questioning arose because the children had said something to him about their grandmother hitting them on the previous occasion.  The father tendered the tape recording he made of the conversation, something a more insightful man would not have done, as it reflects poorly on him.  Most of the questions related to the boys being hit by their grandmother, a few about being hit by their mother and some about the occupants of their home.  The father asked the boys “does mummy say at any time she is going to try and put me in gaol?”, to which he got one no and one yes in answer.  Asked about whether she said anything else about C, both boys said no;  asked whether C asked to see him, both said yes.  The father then resumed his questioning about smacking before moving to the allegation of the photo in the toilet.  The exchange went as follows : 

   And were you boys both in the toilet the same time the last time the last time we went to McDonald’s?

   Yes

   Who told you I took photos of you?

   Indistinct

   Did mum say I took a photo of you with your pants off?  Can’t hear you – say yes or no.

   Yes

   [E] were you in the toilet with [D] when we went to McDonald’s the last time?

   You were.  Did you see me take any photos – yes or no?

   No

   What about you [E], did mummy say to you [E] that I took a photo of [D]?

   Yep

   She did.  OK.  That’s enough of that.  It doesn’t matter any more.

3. It is understandable that the father was angry and frustrated about the photo allegation, which was blatantly strategic and completely untrue.  Nevertheless, this interrogation was unnecessary and potentially stressful and implicated the boys in the dispute between their parents.

Two most recent visits :  15 November, 2008 and 17 January, 2009

1. Ms. N’s evidence was that the two most recent visits had been unremarkable.  On 15 November, 2008 the father had advised that during his unsupervised time with the children, a car parked near the park in which they were playing, and the boys told him that police were coming to take him away.  Asked why, they said that “mum said that”.  It is clear that the mother is very concerned about the potential for the father to abduct the children and this stems, no doubt, from the circumstances in which the father took C soon after separation in 2005.  Nothing in the evidence satisfies me that the children are at risk in that way when with him. 

PRIMARY CONSIDERATIONS

1. When determining what is in a child’s best interests the primary considerations are :

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   These are consistent with the objects set out in s.60B(1).

2. The proposal advanced by the mother in final submissions was not consistent with the evidence she gave during the trial.  Although at one point in the witness box she said she did not oppose the father’s supervised contact with the boys, she made it clear that her application remained that there be no contact whatsoever between the children and their father.  The mother told Mr. S that she consented to D and E spending unsupervised time with their father in January 2008 because she feared that if she did not, the judge might force her to make C available. 

3. The orders proposed by the mother would involve the father having some unsupervised time with D and E, but always in the general vicinity of Y Centre.  The mother maintained her opposition to any unsupervised contact at his home.  From her perspective, the father cannot offer the children a safe environment.  He has not spent significant periods of time with them, she is not convinced he lives in a stable domestic environment, she fears for the children’s physical safety, and what she knows of the stepmother past does not satisfy her that the stepmother could properly protect the boys from exposure to abuse by the father or other harm. 

4. There is some substance to some of those concerns.  There was evidence of violence in the stepmother’s former marriage and of dissention between her and her former husband after their separation, and of involvement of police as the result of V’s violence.  The evidence satisfies me that the environment in the father’s home is now far more stable, and the stepmother was a most impressive witness.  However, the final submission made by the mother suggests she maintains her concerns about that environment. 

5. As noted earlier, the mother’s evidence was that the father does not love or care for the children and she sees no benefit to them in having any relationship with him.  It may be that her final proposal was offered as a compromise, facing the reality that the evidence of Ms. T fell short of that which had been envisaged and it was unlikely the court would move to terminate completely a relationship (between D and E and their father) which was consistently described as appropriate and strong. 

6. I am not satisfied that C is at risk of sexual or physical abuse in her father’s care.  However, given her involvement in the litigation over many years, the brief interaction with the father in mid-2008, in an environment which could not have been more secure, the difficulty of extrapolating from that to a less secure environment, the fact that natural curiosity may have been a motivating factor, her necessarily uncertain response to longer periods of supervised time and the risks to her emotional development, the court should be very cautious about exposing C to orders for ongoing time with the father. 

7. There is a chance that were C to spend supervised time with her father she would move from that to an unsupervised and meaningful relationship with him.  However, there is also a chance that her relationship with her mother would be adversely affected by any continuing contact with her father (supervised or unsupervised), and that is of significant concern.  It would be extremely detrimental to C’s continuing emotional development if contact with her father started, and then ceased, a court finding in a later hearing that it should not move to unsupervised time. In C’s case, the benefits of a meaningful relationship with her father are far more finely balanced against the need to protect her from psychological harm than is the case with the boys. 

ADDITIONAL CONSIDERATIONS

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

1. From the mother’s perspective, C likes the idea of having a father but does not genuinely want to have a relationship with her own father.  That she is strongly implicated in the parental dispute is born out by her account of events at Y Centre in July 2008.  It is possible she may genuinely fear abduction, as she may remember the father’s flight with her to Adelaide and her subsequent return after intervention by the court, and it is probable her mother’s account of her father’s actions at Y Centre in July 2008 was designed to act on those fears. Her willingness to be involved with the father when with Mr. S is indicative of some curiosity about the father and the obvious fear Murray J found she exhibited in 2006 may have receded.  Nevertheless, the court would need to be careful about extrapolating from her involvement with Mr. S that C would feel equally safe and keen to pursue the relationship in less contained circumstances and in circumstances which made her mother very anxious. 

2. D and E are too young for their views to be determinative;  it is their attachments which are more important.

   (b)       The nature of the relationship of the child with:

   (i)       each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child);

3. The mother’s evidence was, effectively, that the boys enjoy spending time with their father because he buys them presents, takes them to McDonalds and they are his sole focus.  She said they would enjoy time with anyone who brings them presents and found it almost impossible to concede that they had a genuine attachment to him.  I am satisfied their relationship with him has developed into an appropriate, affectionate and meaningful one. 

4. Although the mother had staunchly resisted D and E spending any time with the stepmother, she did agree that, “in normal circumstances”, it would be good for her children to be involved with K.  D and E have met K and the stepmother’s younger children once only.

5. The stepmother has not spent much time at all with D and E but I am satisfied she would deal with them in a sensitive and appropriate way and manage their interactions with her children, and with K.

6. The mother is the uncontested resident parent.  Her own evidence was that just because she does not get down on the floor and play with the children, does not mean they do not interact with her, and there is no reason to doubt the strength of the relationship between D and E and their mother.  I do not infer from her own evidence that the relationship between her and C is poor;  it is more probable it has been impacted by her focus on C’s abuse and on the litigation.  As the mother is the uncontested resident parent, the court must do what it can to strengthen her relationship with C, not undermine it;  their attachment has sustained C since her parents’ separation.

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

(f)the capacity of :

(i)each of the child’s parents;  and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :

   (4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)       has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)      to spend time with the child; and

   (iii)      to communicate with the child; and

   (b)       has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)      spending time with the child; and

   (iii)     communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

   (4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. The evidence supports a finding that there is no parental alliance between the parties.  The mother failed to keep the father informed of the children’s residential address and saw no point in providing him with information about C’s schooling or photos of the children.  Each of the parents exercised poor judgment by interrogating the children and implicating them in the adult dispute and the court could not be confident that that will not continue in the future.  Murray J has previously considered events following the parties’ separation and this court should not reconsider them.

3. I am satisfied the father has the capacity to provide for the children’s needs if they were to spend holiday time with him, as proposed. 

4. There is little chance the parents would be able to truly discuss and negotiate decisions relating the children’s long term care.  There is no reason to think that a truce will be called in the future. 

(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :

(i)       either of his or her parents;  or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The father agreed that any time he spent with C would be, in one sense, a work in progress.  She would need to feel comfortable with him in a supervised environment before he would press for unsupervised time and he himself proposed that she should not be forced to attend even that supervised time if, on arrival, she did not want to proceed with it.  He showed some real insight into the tensions C could face, balancing a desire to see him with a desire to be supportive of her mother, and be seen as being supportive of her mother.

2. If the father’s proposals were implemented, he would continue to spend short periods of unsupervised time with D and E in the N area each two months until such time as C was able to move to unsupervised time, initially also in that area.  This would mean that D and E did not spend overnight time with their father for quite some time, or time with him and his family at home in regional New South Wales.  While D and E enjoy their interaction with their father at the moment, it is in their interests to develop their relationship with him, and the submission of the ICL, adopted by the father, illustrates the need for longer periods of time, and time in a more normal family environment.

3. The mother was not able to accept that D and E benefited by the existing relationship.  She agreed that if that relationship ceased, they could suffer some emotional harm in the short term but saw that as essential to protect them against the sexual abuse she alleged was occurring;  she said he “shouldn’t have time if he is sexually abusing the children”.  The proposal advanced on her behalf in final submissions cuts across that evidence. 

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

1. Although the father has moved since the litigation before Murray J, geographic constraints are as significant now as then.  He has made his life with the stepmother in the regional New South Wales area and the shared parenting regime between the stepmother and her former husband requires them to live in reasonable proximity.  If he were able to see D and E (and eventually C) during school holiday periods in regional New South Wales, the father proposed no mid-term time in the N area, something the ICL saw as preferable in the short term, based on Mr. S’s evidence.

2. The father pays little child support.  The court had little information about his financial position.  The cost of fuel alone makes the current travel regime expensive.  I do not doubt that he and the stepmother would work out a way to pay to have the children travel to regional New South Wales if that is what the court ordered. 

(j)any family violence involving the child or a member of the child’s family;

(k)Any family violence order that applies to the child or a member of the child’s family, if :

(i)the order is a final order;  or

(ii)the making of the order was contested by a person;

1. The mother’s evidence was that the father had been abusive and intimidating since the Adelaide trial.  As an example she said that in December 2006, when she would not agree to contact, he said that he would “take us all back to court and make us go back to South Australia’.  I am satisfied that the latter part of that evidence was pure invention and that there was never a threat to seek the return of the mother and children to South Australia.  The father did not appeal the decision of Murray J;  the complaints he made in the letter written to the ICL in October 2006, related to the failure to implement court orders, the problems caused by Y Centre’s inability to provide the contact envisaged by Murray J and the long term difficulties of continuing supervision.

2. Asked for further illustrations the mother spoke of a handover at the police station in 2006 when the father walked towards her as if to give her a hug.  She also alleged that he had sent many text messages in 2008, which she “accidentally” forgot to save.  Pressed, she could only say that in her mind she felt threatened because the father was always threatening to take her back to court.  I am satisfied that those threats related to non-compliance with the orders of Murray J. 

3. There was no evidence of any current family violence orders between the parties.  I have referred to the order which the stepmother obtained against her son, who now lives with her.

4. I am satisfied that the stepmother’s son V was aggressive and abusive to the father on occasions and that that led to the involvement of police and a referral to DOCS.  It is probable V moved between his parents’ homes and other houses, and was hard to handle for a while.  It is also probable that hostility between Mr. P and the father, and Mr. P and his ex-wife, resulted in arguments and the involvement of third parties and at least one attendance by police, in January 2008, where the victim was seen to be the father.  I accept his evidence that police recommended he apply for an apprehended violence order, but he decided not to do so as those involved in the altercation moved from the area.

5. I do not find the children are at risk from inappropriate physical discipline by the maternal grandmother.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

6. This is an important factor.  Were Mr. S’s initial recommendations implemented, the matter would need to be relitigated in another six months;  at that point the court would need to determine the success of supervised time with C, and decide whether it should move to unsupervised time.  That would involve C, and possibly the other children, in more interviews and the parties in another round of litigation.  If C’s best interests demand that occur, the potential stress should not trump the importance of a continuing relationship with her father.  However, the court would need to be confident that it was in her best interests to embark on the regime of supervised time, and when considering that, consider the potential effect on her if supervised time were not successful, as well as the effect on her if it were.

7. This family has been involved in litigation since 2005.  The allegations each made against the other in the course of this round of proceedings are illustrative of the continuing hostility.  It is probable both parents have engaged in evidence-gathering and have been prepared to put pressure on the children and sacrifice the children’s best interests to achieve that.  That is not good for the children, who should not be burdened with these adult concerns.

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

1. It is important that the Court considers the objects and principles set out in s.60B. 

PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

1. As noted earlier, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence and may be rebutted if the court finds that it would not be in the best interests of the child to apply.

2. I am not satisfied that the evidence supports a finding that C has been sexually abused by the father or that there is a risk of such sexual abuse.  Nor am I satisfied that the father has sexually or physically abused D or E, or that there is a risk of that abuse.  Further, I am not satisfied that the maternal grandmother has physically abused D or E, or that there is a risk she will do so. 

3. However, I am satisfied the best interests of all three children require the rebuttal of the presumption. 

4. The orders made by Murray J on 26 June, 2006 provided for the mother to be responsible for the short term and long term care, welfare and development of the three children.  Those orders were made prior to the proclamation of the legislation which governs this hearing.  Nevertheless, similar factors inform the decision now. 

5. If C is to spend no time with her father, decisions about her education and health need to be taken by her mother.  The complete lack of a parental alliance and of any form of trust or respect militates against the potential for genuine discussion or negotiation, even were C to see her father. 

6. Whatever orders the court makes about D and E, they will live with their mother most of the time and the father will have little involvement in their day-to-day life, particularly their life during school terms.  He did not propose orders which would have him spend time with them in Melbourne during school terms in the future and sought no active involvement in their school life.  The distance between the parties’ homes may make that inevitable.  I am satisfied that whatever the outcome in respect of his time with the twins, the mother needs to have sole parental responsibility for them, as she has effectively had pursuant to Murray J’s order since mid-2006. 

7. Orders can provide for the father to be kept advised of matters referrable to the children’s schooling.  The mother failed to comply with the order to advise the father of her residential address and the court cannot be confident she will do so in the future.  It should make clear that a failure to comply with such an order, or an order which requires her to notify the father of the school attended by the children from time to time, could constitute a breach of orders and lead to significant sanctions.  Repeated breaches can result in the court varying existing parenting orders;  a change in a child’s residence can not be ruled out.  It would be prudent for the mother to bear this in mind in the future. 

CONCLUSION

1. Balancing all the evidence I am not satisfied that C’s best interests will be served by orders which provide for her to see her father, even in a supervised environment.  The court accepts that this means she will not have a meaningful relationship with her father, at least until she is old enough to decide herself whether she wants to seek him out and re-establish contact.  However, in my judgment, the potential risks to her emotional development and her relationship with her mother outweigh the potential benefits, particularly as the court could not be confident that supervised contact could move to unsupervised time. C may be envious of the presents her brothers receive (although I am satisfied the father provided presents for her, too, on occasions) and even envious of their relationship with her father, but that is not a solid foundation on which to build a relationship between her and him, given her life with the mother since her parents’ separation and her primary attachment with her mother.

2. I am satisfied that the father’s time with D and E no longer needs to be supervised and they should spend longer periods with him, moving to overnight and, in due course, holiday time.  I am satisfied that orders broadly as proposed by the ICL are likely to be in their best interests, although orders will provide for slightly longer periods than the ICL envisaged.  In making that finding I do not ignore the mother’s opposition to any extension of time and the potential for her to work to undermine it.  However, the best interests of D and E demand that they are able to build on the relationship they now have with their father.

3. I am satisfied that the costs of travel between the mother’s home and that of the father should be borne by the father.  It may be necessary for an adult to accompany the children for some years which will increase the costs, but I do not find it appropriate to require the mother to contribute to it.  At the moment the father pays little child support.  The costs of spending time with children is a factor which can be considered when determining any departure from assessed child support and if his financial position improved, and more significant assessments issue, that is a matter which could be raised then.

I  certify  that the preceding
200  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of             2009.

…………………………………………
Associate.